The right to be forgotten

The Federal Court of Justice (BGH – VI ZR 405/18 and VI ZR 476/18) recently dealt with the right to be forgotten in two cases.

In one case, a decision was issued that shows the criteria according to which persons can have entries deleted from search engines such as Google. The former managing director of a regional welfare association filed a lawsuit because he wanted to prevent a press report from 2011 in particular from appearing in the hit list in a Google search for his name. This report revealed that the regional association had a deficit of around one million euros during his term of office and that he had called in sick during the crisis. The BGH dismissed the action. In contrast to the European Court of Justice (ECJ), the BGH states that a comprehensive weighing of fundamental rights must always be carried out before there is a claim to remove a critical press report from the hit list of an Internet search engine. In this context, the fundamental rights of the persons concerned to protection of their privacy and their personal data are opposed to the fundamental rights of the search engine operator to entrepreneurial freedom and freedom of expression. In addition, there is the search engine user’s right to freedom of information. In its 2014 ruling (Google-Spain), in which the ECJ established a right to be forgotten for the first time, it stated that the right of personality of the person concerned must always be given priority, unless the person concerned plays a special role in public life. The BGH now comes to the conclusion that the fundamental rights of the parties involved must be weighed in each individual case. In doing so, it follows the decision of the Federal Constitutional Court, which was issued at the end of 2019 (1 BvR 276/17 – Right to be Forgotten II).

Another case involving information whose truthfulness is disputed was referred to the ECJ. The plaintiffs are a financial services couple that was portrayed as frivolous by a U.S. website. The couple accused the Americans of misreporting in order to blackmail those affected. Here, it was disputed whether the information linked by Google was accurate. Google rejected the delisting request, saying it could not judge whether the U.S. reports were accurate. The plaintiffs based their claim for delisting on Article 17 (1) of the General Data Protection Regulation (GDPR). The BGH has now referred the case to the ECJ for a preliminary ruling because the Court of Justice of the EU is responsible for interpreting the GDPR. At the same time, the BGH suggested to the couple how they should proceed. In summary proceedings, they could sue the US website to clarify the truth of the reports. If the untruthfulness of the reports is established, the couple would have a claim against Google for delisting of the reports on the grounds of incorrectness.

Once the ECJ has ruled, the case will come back to the BGH.

Accordingly, the more prominent the person concerned and the more recent the entry, the more difficult it is likely to be to enforce deletion under the current supreme court case law in Germany.

Dr. Verena Jütte

Dr. Verena Jütte>6 Beiträge