A landmark ruling by the CJEU has established that the right to be forgotten can be invoked directly against a search engine provider such as Google, and that if documents are presented suggesting that the information posted online is false, Google cannot refuse to remove the search results on the grounds that it cannot assess whether the applicant is entitled to have the results removed under the right to be forgotten and the protection of his or her personal data without a court decision. In other words, Google is obliged to assess the documents submitted and, if they are convincing and show that the records are incorrect, to remove the results. Otherwise, it risks a breach of its legal obligations and the associated obligation to pay damages.
This judgment is to be welcomed: since 2015, when the CJEU first called the right to be forgotten part of the right to privacy and data protection, companies like Google have put in place administrative processes to assess requests to delete search results. Data subjects can make the same request to website operators who are responsible for their content. However, the CJEU has now made it clear that the data subject is not obliged to contact the website operator first in case of ambiguity, and that the search engine operator is also obliged to assess the request (correctly) and cannot refer the subject to the submission of a judicial decision.
In practice, the proportion of successful deletion requests can be expected to increase, and unless Google invests in the (likely) more time-consuming process of assessing deletion requests, it will risk the damage compensation for non-compliance.
However, it is necessary to distinguish from cases of clearly untrue or misleading information published online, news that is true but which is not supported by the overriding interest of society to be informed about it. Here, the relevant criterion is the time: the interest in protecting privacy and reputation becomes more prevalent as time passes since the event is published. Therefore, even the disclosure of truthful information may not be permanent in the information age, and data subjects may defend against it.
