Germany: "Right To Be Forgotten" - Search Engine Operators Must Comply With Requests To Delete Links To Personal Data

Last Updated: 26 February 2019
Article by Ruben A. Hofmann and Ubbo Aßmus

The use of the Internet without the use of search engines, which list links to Internet pages after keywords have been entered, is almost unthinkable. In the context of the search results, however, websites may appear that contain personal data and thus fall within the scope of the GDPR. The most well-known and most widely used search engine "Google" has so far been called upon, both at the national and European level, to erase the displaying of specific URLs in the search results in various configurations of cases.

Currently, the ECJ Advocate General in his Concluding Opinion of 10 January 2019 (Ref. no.: C-136/17) made clear in the framework of the GDPR which came into force on 25 May 2018 that search engine operators, as, in the relevant case of "Google", fall within the scope of the GDPR and thus data subjects whose data can be found through the activities of the search engine are able to file a request for erasure under the conditions of Article 17 GDPR. The operator must systematically grant such requests, taking into account the exceptions set out in Article 17 GDPR.

I. Scope also been extended to include operators of search engines

The operator of a search engine automatically and systematically collects information published on the Internet. By entering the name of a natural person, the user of this search engine can thus obtain an overview of all information that can be found within the Internet about the person sought. In doing so, personal data will inevitably be processed so that the provisions of the GDPR are applicable (cf. Article 2 (1) and 3 (2) GDPR). This is not contradicted by the fact that the operator of a search engine does not itself regularly publish personal data. For the processing of personal data, it is sufficient that the operator of a search engine provide links that refer to personal data. The prohibitions and restrictions from the GDPR, however, only apply after the relevant information has been published on a website and thus appears within the search results of a search engine.

II. Right to erasure from the list of search results

Before the GDPR came into force, a data protection claim for erasure from search engine links pursuant to Section 35 (2) Sentence 2 no. 2 BDSG [Federal Data Protection Act] was granted on the condition that the data storage is impermissible. Such is already permissible under Section 29 (1) no. 2 BDSG insofar as the data was obtained from publicly accessible Internet sites and the legitimate interests of the data processing company did not outweigh this. With regard to a balancing of the indirectly affected freedom of the press and freedom of opinion of the operators of such linked websites, case law has predominantly rejected liability. If the violation of the personality rights concerned the right to the picture, the courts based a claim to erasure on Sections 22, 23 KUG [German Law on the protection of copyright in works of art and photographs], so that a balancing requirement was omitted due to the lack of consent of the person depicted.

With the entry into force of the GDPR, various erasure obligations arise from Article 17 (1) GDPR: On the one hand, the controller responsible for data protection may be obliged to erase certain data on its own initiative (Article 17 (1) a, d, e GDPR), but the obligation to erase may also arise as a result of a data subject's request for erasure (Article 17 (1) b, c, f GDPR). In addition to the unlawful processing of data, Article 17 GDPR is based both on the purpose ceasing to exist and on the requirement of the data subject objecting, which can justify a claim for erasure irrespective of the lawfulness of the data processing. For example, the data subject from the results of a search engine may, according to Article 17 para. 1 c GDPR, object to the processing of its data in accordance with Article 21 (1) GDPR. The data subject then applies to the operator of the search engine for erasure of the links that allow a conclusion of personal data and thus affect its personal rights. If the operator cannot counter with legitimate reasons for data processing that should take priority, it is obliged to grant the request for erasure (the so-called "Right to be forgotten").

III. Exceptions to the erasure obligation

Article 17 (3) GDPR also provides for exceptions to the obligation to erasure. It clarifies that the protection of personal data is not unlimited, but that a proportionate balancing of conflicting interests must be maintained. Therefore, the operator of a search engine, in the context of requests for erasure, must balance the interests of the data subject, the user of the search engine and the one whose website was linked to within the search. Also, the search engine operator's own, above all economic, interests can be included. The right to privacy and the protection of personal data of the data subject as well as the right to free access to information of the general public and at the same time the right to freedom of expression with a view to publication of a web page must be weighed against each other. Whether or not an exception to the controller's obligation of erasure applies can usually only be answered by taking into account the circumstances of the individual case.

IV. Practical effects / perspective

Regardless of the final outcome of this procedure before the European Court of Justice, it is already clear that new room to maneuver has opened up for those affected within the meaning of Article 17 GDPR as a result of the direct application of the GDPR. While a claim to erasure from the regulations of the BDSG presupposes the inadmissibility of the data storage, the right to erasure from the GDPR may be objectively and legally binding as well as binding as a result of initiatives of the data subject. A balancing of the conflicting interests remains present, which makes it difficult to forecast the development of the case law concerning the new regulations from the GDPR.

However, it is not the justification of the right to be forgotten and thus to erasure that is weighed, but rather the possibility of making an exception to the obligation to erase. The Higher Regional Court of Frankfurt am Main (Case no. 16 U 193/17) rejected a claim to erasure and gave more weight to the interest of the public in the further provision of reports linked to it by Google - despite the Google Spain decision of the European Court of Justice, in which the right to be forgotten out of GDPR was recognised for the first time. The appeal against the not enforceable judgment was permitted, so the assessment of the BGH [Federal Court of Justice] must be awaited. The development of the questions that arise from the interplay of Article 17 GDPR and the BGH Thumbnail case law remains exciting, too.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions