Questions on the right to delisting

21 septembre 2015

What does the court of European Court of Justice ruling say? What is the right to delisting? Who can make a delisting request? How to do it? What to do in the event of a refusal? The CNIL gives you the answers.

 

What does the court of justice of the European Union ruling say?

The Court rules that European legislation is applicable to search engines. In practical terms, any individual who wants to see removed one or more results displayed following a search made on the basis of his/her name can make a request to a search engine, under certain conditions which take into account the public’s right to information.

Who can exercise this right?

EU residents.

What is delisting?

It prevents search engines to display some results following a search made on the basis of a person’s name.
It does not lead to deletion of the information on the source website. The original information remains unchanged and will still be found on search engines using other search terms, or by direct access to the publisher’s original source.

What are the guarantees for freedom of expression and the public’s right to information?

In its ruling, the ECJ explains that the rights of the data subject requesting delisting prevail, as a general rule, as long as the request is based on legitimate grounds. However, the public’s right to information may prevent delisting, in particular if the data subject plays a role in public life. In order to ensure a fair balance between the rights to privacy and the right to information, search engines analyze requests on a case by case basis. In the event of a refusal by search engines, data protection authorities (such as the CNIL) or the competent judicial authority in each Member State will examine the citizens’ complaints in detail.

Is there a risk that delisting leads to form of censorship on the internet?

No. Delisting does not lead to deletion of the information on the internet; it merely prevents some results to be displayed following a search made on the sole basis of a person’s name. For instance, it is impossible to delist news or historical events based on a general heading, or results about another person, because this would mean redrafting the web at our leisure.

What is the scope of a delisting decision?

Delisting must be implemented on all relevant extensions of the search engines, including .com, for two reasons:

  • Geographical extensions (.fr, .es, etc.) are only paths giving access to the same processing operation. The right to delisting is exercised with respect to the search Engine, regardless of the way the query is made.
  • “Partial” delisting would mean ineffective delisting: any internet user could still find the search result using a non European domain name.

How can the French data protection law have effects outside the French territory?

The Charter of Fundamental Rights of the European Union gives a number of fundamental rights to European residents, including the respect for private and family life and the protection of personal data. If these rights cannot lead to a protection of non-European residents, they apply however to companies processing data about European residents. In order to be effective, the protection granted to a European citizen must apply to the search engine as a whole, even if this has one-off effects outside of this territory.

How to exercise this right?

EU citizens can ask search engines to delist a web page that affects their privacy negatively. This can be done through online forms available on search engines web pages. 

Can the search engine refuse a delisting request?

Yes, there is no obligation to delist systematically. Search engines have to make a case by case analysis in order to assess if the request is legitimate. For example, search engines can refuse to delist content about a public person.

What can be done if the search engine refuses to delist?

If the search engine rejects the delisting request, data subjects can either file a complaint with the data protection authority (in France it is the CNIL), or the competent judicial authority in each Member State.

Must search engines inform website editors about the delisting of specific links?

Search engines should not as a general practice inform the webmasters of the pages affected by delisting, but in practice, they sometimes do.

Does the public have to be informed when delisting prevents some results from being displayed?

There is no legal requirement to inform users of search engines that the list of results to their queries is not complete.

What role for the EU data protection authorities?

Data protection authorities have published rapidly a list of common criteria giving search engines guidance on the implementation of the ruling. These criteria are applied by DPAs to handle the complaints filed with the national offices, following the rejection of a delisting request by a search engine. These complaints allow DPAs to supervise the implementation of the right to delisting by search engines.

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