January 21, 2019

The claimants were four individuals who took action against the French data protection authority, the CNIL, in relation to the CNIL’s decision not to put the defendant Google LLC on formal notice to de-reference various links that appeared in the results list displayed following a search of their names, to web pages published by third parties. The web pages in question contained, inter alia, a satirical photomontage of a female politician posted online under a pseudonym, an article referring to one of the interested parties as the public relations officer for the Church of Scientology, the placing under investigation of a male politician, and the conviction of another party for sexual assaults against minors.

The case went to the Conseil d’Etat, which referred several questions to the Court of Justice of the European Union on the interpretation of the Data Protection Directive (95/46/EC).

First, it asked whether the prohibition imposed on other data controllers on processing data within certain categories, such as political opinions, religious or philosophical beliefs, and a person’s sex life, also applies to a search engine operator.

The Advocate General opined that the Directive should be interpreted in such a way as to take account of the responsibilities, powers and capabilities of a search engine. Therefore, he said, the prohibitions and restrictions under the Directive cannot not apply to a search engine operator as if it had itself placed sensitive data on the web pages concerned. However, they do apply by reason of the referencing that a search engine undertakes when carrying out its activities, which take place only after (sensitive) data have already been placed online.

Accordingly, the Advocate General proposed that the CJEU should find that the prohibition imposed on other data controllers on processing data within certain specific categories also applies to a search engine operator’s activities.

Secondly, the Conseil d’Etat also asked whether the operator of a search engine is obliged to systematically de-reference material. The Advocate General noted that the Directive provides for a prohibition on the processing of sensitive data. That prohibition also applies to a search engine operator processing sensitive data which is, therefore, required to accede, as a matter of course, to requests for de-referencing, subject to the exceptions under the Directive. In the Advocate General’s view the exceptions apply even though some of the exceptions appear to be more theoretical than practical as regards their application to a search engine.

The Advocate General also addressed the question of derogations under freedom of expression and their reconciliation with the right to respect for private life. He proposed that the CJEU should find that, where there is a request for de-referencing relating to sensitive data, the operator of a search engine must weigh up, on the one hand, the right to respect for private life and the right to protection of data and, on the other hand, the right of the public to access the information concerned and the right to freedom of expression of the person who provided the information.

Lastly, the Advocate General addressed the question of a request for de-referencing relating to personal data that has become incomplete, inaccurate or obsolete, such as, for example, press articles relating to a period before the conclusion of judicial proceedings. The Advocate General said that in such circumstances the CJEU should hold that the operator of a search engine should conduct a balancing exercise on a case-by-case basis between, on the one hand, the right to respect for private life and the right to protection of data under Articles 7 and 8 of the Charter of the Fundamental Rights of the European Union and, on the other hand, the right of the public to access the information concerned, while taking into account the fact that that information relates to journalism or constitutes artistic or literary expression.

The Opinion is, at present, only available in French. This report is therefore based on the press release, which is available in English. (Case C-136/17 GC v CNIL EU:C:2019:14 (Advocate General Opinion) (10 January 2019) — to access the Opinion in full and the press release, go to the curia search form, type in the case number and follow the link).