CJEU Case C-136/17/ Opinion

Introduction

1. Reconciling the right to privacy and to the protection of personal data with the right to information and to freedom of expression in the internet era is one of the main challenges of our time. It is not surprising, therefore, that over recent years a number of cases raising legal questions connected with that problem have been brought before the Court.
2. Once a question has been addressed and settled, new questions arise. That phenomenon is all the more problematic because very often the legal framework was not adopted with the internet era in mind. The case in the main proceedings, like Case C‑507/17, Google (Territorial scope of de-referencing), in which my Opinion is also delivered on the same day as in the present case, is a good example of that: how and to what extent do the obligations imposed by a 1995 directive on data protection, namely Directive 95/46/EC, apply to a search engine such as Google, an undertaking created in 1998?
3. In its landmark judgment of 13 May 2014, Google Spain and Google, the Court held that, under Article 12(b) and point (a) of the first paragraph of Article 14 of Directive 95/46, individuals have a ‘right to be forgotten’ that may entail an obligation for the operator of a search engine to remove the links to information relating to the individual in question. The present case is a continuation of that judgment. In fact, following that judgment, a large number of new questions have arisen, concerning in particular the processing of what is known as ‘sensitive’ data, relating to racial or ethnic origin, political opinions and religious or philosophical beliefs.
4. That is why, when I interpret the law as it exists, I shall also refer both to the legislation in force and to the interpretation of that legislation in the judgment in Google Spain and Google.
5. In short, my proposal to the Court is twofold: first, as a general rule, the internet links to sensitive data should, on request, be systematically removed by the operator of a search engine; and, second, freedom of expression must be respected. In that regard, I invite the Court to interpret its judgment in Google Spain and Google in such a way as to take due account of freedom of expression.

Conclusion

Having regard to all of the foregoing considerations, I propose that the Court should answer the questions for a preliminary ruling submitted by the Conseil d’État (Council of State, France) as follows:

1. Within the framework of the responsibilities, powers and capabilities of an operator of a search engine, Article 8(1) and (5) of 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 applies, in principle, to the activities of such an operator of a search engine.
2. The referencing of an internet page comprising data reporting the committing of an offence and criminal proceedings comes within the scope of Article 8(5) of Directive 95/46.
3. Under Article 8(1) and (5) of Directive 95/46, an operator of a search engine is required to systematically grant requests for de-referencing that relate to links leading to web pages containing sensitive data referred to in that provision, subject to the exceptions provided for in Directive 95/46, such as those provided for in Article 8(2)(a) and (e) of that directive.
4. Conversely, the fact that the data on the internet page at issue come within Article 9 of Directive 95/46 constitutes a circumstance that may allow a request for de-referencing to be refused. In such a situation, the operator of a search engine must weigh up, on the one hand, the right to respect for privacy and the right to protection of the data under Articles 7 and 8 of the Charter of Fundamental Rights of the European Union and, on the other, the right of the public to have access to the information at issue and also the right to freedom of expression of the person from whom the information emanates, on the basis of Article 11 of the Charter.