By judgement rendered on 13 May 2014, the European Court of Justice (ECJ) affirms the right "to be forgotten" by acknowledging that a person may require the removal of the links indexing information relating to such person from the list of results of a given search engine. This judgement creates the right "to be forgotten".

The judgment was rendered by the ECJ following prejudicial questions raised by the Spanish National High Court (Audiencia Nacional), in the context of two separate actions brought by Google Spain and Google Inc. against the decision of the "Agencia Espanola de Proteccion de Datos. Such decision upheld the claim of a Spanish citizen ("Claimant") who requested that the relevant operators of search engines be required to remove or conceal personal data relating to the Claimant so that they ceased to appear in the search results when typing the Claimant's name. Indeed, the Claimant deplored that an internet user which entered the Claimant's name in the search engine of Google group, received links to two pages of a Spanish newspaper on which an announcement mentioning the Claimant's name in connection with a real-estate auction related with attachment proceedings for the recovery of social security debts.

One of the prejudicial questions asked to the ECJ was the following:

"Must it be considered that the rights to erasure and blocking of data, provided for in Article 12(b), and the right to object, provided for by [subparagraph (a) of the first paragraph of Article 14] of the Directive 95/46/EC [of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (the "Directive")], extend to enabling the data subject to address himself to search engines in order to prevent indexing of the information relating to him personally, published on third parties' web pages, invoking his wish that such information should not be known to internet users when he considers that it might be prejudicial to him or he wishes it to be consigned to oblivion, even though the information in question has been lawfully published by third parties?"

The ECJ indicated first that the operations performed by the search engine operator, in the scope of its indexing activities, must be classified as "processing of personal data". The ECJ then considered that, to the extent that the operator of a search engine itself determines the purposes and means of that indexing activity (and thus of the processing of personal data that it carries out), it must be regarded as a "controller". In these circumstances, the operator of the search engine must ensure that the activity meets the requirements of the Directive in order "that the guarantees laid down by the directive may have full effect and that effective and complete protection of data subjects, in particular of their right to privacy, may actually be achieved".

In this respect, pursuant to Article 12 b) of the Directive, it must grant the data subject the right to request "the rectification, erasure or blocking of data for which the processing does not comply with the provisions of the Directive, in particular because of the incomplete or inaccurate nature of the data". According to the ECJ, the incompatibility "may result not only from the fact that such data are inaccurate but, in particular, also from the fact that they are inadequate, irrelevant or excessive in relation to the purposes of the processing, that they are not kept up to date, or that they are kept for longer than is necessary unless they are required to be kept for historical, statistical or scientific purposes".

It follows that "even initially lawful processing of accurate data may, in the course of time, become incompatible with the directive where those data are no longer necessary in the light of the purposes for which they were collected or processed".

Under these circumstances, the ECJ considered that "having regard to the sensitivity for the data subject's private life of the information contained in those announcements and to the fact that its initial publication had taken place 16 years earlier, the data subject establishes a right that that information should no longer be linked to his name by means of such a list". Consequently, the data subject may, in particular, pursuant to the abovementioned Article 12(b), require the removal of the links mentioned in the results list.

It should be noted that the solution may have been different if "particular reasons" had existed "substantiating a preponderant interest of the public in having, in the context of such a search, access to that information". On that point, the ECJ underlines that the role played by the person in public life may be analysed as "a particular reason" substantiating "the interference with his fundamental rights by the preponderant interest of the general public in having, on account of its inclusion in the list of results, access to the information in question".