The use of the Internet without the use of search engines, which list links to Internet pages after keywords have been entered, is almost unthinkable. In the context of the search results, however, websites may appear that contain personal data and thus fall within the scope of the GDPR. The most well-known and most widely used search engine "Google" has so far been called upon, both at the national and European level, to erase the displaying of specific URLs in the search results in various configurations of cases.
Currently, the ECJ Advocate General in his Concluding Opinion of 10 January 2019 (Ref. no.: C-136/17) made clear in the framework of the GDPR which came into force on 25 May 2018 that search engine operators, as, in the relevant case of "Google", fall within the scope of the GDPR and thus data subjects whose data can be found through the activities of the search engine are able to file a request for erasure under the conditions of Article 17 GDPR. The operator must systematically grant such requests, taking into account the exceptions set out in Article 17 GDPR.
The operator of a search engine automatically and systematically collects information published on the Internet. By entering the name of a natural person, the user of this search engine can thus obtain an overview of all information that can be found within the Internet about the person sought. In doing so, personal data will inevitably be processed so that the provisions of the GDPR are applicable (cf. Article 2 (1) and 3 (2) GDPR). This is not contradicted by the fact that the operator of a search engine does not itself regularly publish personal data. For the processing of personal data, it is sufficient that the operator of a search engine provide links that refer to personal data. The prohibitions and restrictions from the GDPR, however, only apply after the relevant information has been published on a website and thus appears within the search results of a search engine.
Before the GDPR came into force, a data protection claim for erasure from search engine links pursuant to Section 35 (2) Sentence 2 no. 2 BDSG [Federal Data Protection Act] was granted on the condition that the data storage is impermissible. Such is already permissible under Section 29 (1) no. 2 BDSG insofar as the data was obtained from publicly accessible Internet sites and the legitimate interests of the data processing company did not outweigh this. With regard to a balancing of the indirectly affected freedom of the press and freedom of opinion of the operators of such linked websites, case law has predominantly rejected liability. If the violation of the personality rights concerned the right to the picture, the courts based a claim to erasure on Sections 22, 23 KUG [German Law on the protection of copyright in works of art and photographs], so that a balancing requirement was omitted due to the lack of consent of the person depicted.
With the entry into force of the GDPR, various erasure obligations arise from Article 17 (1) GDPR: On the one hand, the controller responsible for data protection may be obliged to erase certain data on its own initiative (Article 17 (1) a, d, e GDPR), but the obligation to erase may also arise as a result of a data subject's request for erasure (Article 17 (1) b, c, f GDPR). In addition to the unlawful processing of data, Article 17 GDPR is based both on the purpose ceasing to exist and on the requirement of the data subject objecting, which can justify a claim for erasure irrespective of the lawfulness of the data processing. For example, the data subject from the results of a search engine may, according to Article 17 para. 1 c GDPR, object to the processing of its data in accordance with Article 21 (1) GDPR. The data subject then applies to the operator of the search engine for erasure of the links that allow a conclusion of personal data and thus affect its personal rights. If the operator cannot counter with legitimate reasons for data processing that should take priority, it is obliged to grant the request for erasure (the so-called "Right to be forgotten").
Article 17 (3) GDPR also provides for exceptions to the obligation to erasure. It clarifies that the protection of personal data is not unlimited, but that a proportionate balancing of conflicting interests must be maintained. Therefore, the operator of a search engine, in the context of requests for erasure, must balance the interests of the data subject, the user of the search engine and the one whose website was linked to within the search. Also, the search engine operator’s own, above all economic, interests can be included. The right to privacy and the protection of personal data of the data subject as well as the right to free access to information of the general public and at the same time the right to freedom of expression with a view to publication of a web page must be weighed against each other. Whether or not an exception to the controller’s obligation of erasure applies can usually only be answered by taking into account the circumstances of the individual case.
Regardless of the final outcome of this procedure before the European Court of Justice, it is already clear that new room to maneuver has opened up for those affected within the meaning of Article 17 GDPR as a result of the direct application of the GDPR. While a claim to erasure from the regulations of the BDSG presupposes the inadmissibility of the data storage, the right to erasure from the GDPR may be objectively and legally binding as well as binding as a result of initiatives of the data subject. A balancing of the conflicting interests remains present, which makes it difficult to forecast the development of the case law concerning the new regulations from the GDPR.
However, it is not the justification of the right to be forgotten and thus to erasure that is weighed, but rather the possibility of making an exception to the obligation to erase. The Higher Regional Court of Frankfurt am Main (Case no. 16 U 193/17) rejected a claim to erasure and gave more weight to the interest of the public in the further provision of reports linked to it by Google - despite the Google Spain decision of the European Court of Justice, in which the right to be forgotten out of GDPR was recognised for the first time. The appeal against the not enforceable judgment was permitted, so the assessment of the BGH [Federal Court of Justice] must be awaited. The development of the questions that arise from the interplay of Article 17 GDPR and the BGH Thumbnail case law remains exciting, too.