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Right to be forgot’ has no worldwide application

On September 24, 2019, the Court of Justice issue a judgment on the scope of the ‘right to be forgot’. This right is enshrine in Article 17 of the GDPR and mean that in certain case a person can request the erasure of his personal data. In principle, the controller is oblige to actually delete this data. In its judgment of 24 September 2019, the Court clarify the application of the ‘cos è il diritto all oblio‘.

Worldwide ‘right to be forgot’

The case before the Court of Justice related to a dispute between the French regulator (CNIL) and Google. The French regulator had fined Google because Google refused to remove all search results about a specific person in all versions of its search engine worldwide. According to Google, the ‘right to be forgot’ does not imply that all search result in all national version of its search engine must be remove, without any form of geographical ranking being apply. According to Google, CNIL’s actions are base on an incorrect interpretation of (the predecessor of) the GDPR.

In dealing with the case, the Court reiterate that on the basis of the ‘right to be forgot’, a search engine is oblige to remove, at the request of a data subject, the search result that come up when the person concern is search. However, according to the Court, this right is not absolute. Under certain circumstances, a refusal to delete the search results may be justified by the Internet users’ interest in accessing certain information about the data subject.

The Court further determine that a search engine cannot be oblige to remove all search result about a specific person in all version of its search engine worldwide. It is sufficient that a search engine only removes the search results that appear in the versions of its search engine within the European Union. Search result that come up when the search engine is use in country outside the European Union need not be delete, except in special circumstance cos’è il diritto all’oblio.

Special personal data

A stricter regime applies to the removal of search results relating to special personal data than for ‘normal’ personal data. This stricter regime is based on the fact that a processing ban applies to special personal data. For that reason, request to delete special personal data must in principle be honor. Processing of special personal data by means of search results is only possible if there is a legal basis for this. This is the case for example when the inclusion of search results that refer to special personal data. Is necessary for ‘reasons of important public interest’ (Art. 9 para. 2 lit. g GDPR).

A reason of important public interest may lie in the (fundamental) right to freedom of information. Internet users may have an interest in information about, for example, a criminal conviction of a known person. In order to assess whether a reason of substantial public interest exists, the search engine must verify whether “ the inclusion of this link in the list of results […] appears to be strictly necessary to protect the right to liberty enshrined in Article 11 of the Charter of information from Internet users who may be interested in accessing this web page through such a search. 

When assessing whether a reason of substantial public interest exists. The search engine must balance the interests of the data subject to respect for private life. And the protection of personal data. And the right to freedom of information for internet users. In the case of data on offenses or criminal convictions of a person. The search engine must take into account for example the nature and seriousness of the offense. The course and outcome of the criminal proceedings the function of the person in public life. And the content and form of the publication. If the interest of the person concerned outweighs the right to information (via search results) for internet users diritto all oblio definizione.

What now

It follow from the foregoing that search engine are not oblige to remove personal data. About the person concern if this conflict with the right of internet user to access information. In addition search engine are not oblige to remove all global search result. That refer to data about a specific person. It is enough to only delete the search results in the Member States of the European Union.

This is different with the request to delete special personal data. Such a request must in principle be honor by a search engine. Only if it is strictly necessary to protect the right to freedom of information. A search engine may refuse to delete special personal data .