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On January 10, the Advocate General delivered his Opinion on two requests for a preliminary ruling regarding the right to be forgotten: case C-136/17, about the possibility that search engines may be ordered to automatically remove from the list of results any webpages containing “sensitive” data (see this post); and case C-507/17, on the geographic scope of search-result blocking (see this post).

As regards the de-referencing of search results relating to webpages that contain sensitive data, Advocate General Szpunar acknowledges that search engines only intervene after the sensitive data have been published online. Hence, prohibitions and restrictions cannot apply to them as if they had included those data on the webpages. According to the Advocate General, such restrictions can only apply ex post, on the basis of a de-referencing request by the data subject.

The Advocate General considers that de-referencing requests should not be systematically granted. Search engines must weigh up, on the one hand, the right to respect for privacy and the right to protection of the data 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. Such balancing should also apply to de-referencing requests regarding incomplete, inaccurate or out-of-date data. When the request concerns press articles, it should be taken into account that journalistic information constitutes and artistic or literary expression.

As regards the geographic scope of search-result blocking, Advocate General Szpunar notes that the issue at stake does not require EU law to be applied beyond its territorial borders. Again, it is important to weigh up the fundamental right to be forgotten and the legitimate interest of the public in having access to the information sought. Therefore, if worldwide de-referencing were admitted, the EU authorities would not be in a position to strike a balance between the right to receive information and other rights such as the right to data protection and to private life, since the public interest in having access to information will vary from one third State to another.

In sum, the Advocate General considers that search engines are not required to remove results worldwide, in such a way that the links no longer appear regardless of the place from which the search is carried out. Instead, search engines must remove the results so that they are not accessible from the territory of the European Union, whatever the domain name from which the search is carried out.

By Ane Alonso

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ane.alonso@cuatrecasas.com