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12/10/2019 CURIA - Documents (f) 8 processing is necessary for the purposes of the legitimate interests pursued by the controller or by the third party or parties to whom the data are disclosed, except where such interests are overridden by the interests for fundamental rights and freedoms of the data subject which require protection under Article 1(1).’ Articles 8 and 9 of Directive 95/46 appear in Chapter II, Section III, headed ‘Special categories of processing’. Article 8, headed ‘The processing of special categories of data’, provides: ‘1. Member States shall prohibit the processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, and the processing of data concerning health or sex life. 2. Paragraph 1 shall not apply where: (a) the data subject has given his explicit consent to the processing of those data, except where the laws of the Member State provide that the prohibition referred to in paragraph 1 may not be lifted by the data subject’s giving his consent; or … (e) the processing relates to data which are manifestly made public by the data subject or is necessary for the establishment, exercise or defence of legal claims. … 4. Subject to the provision of suitable safeguards, Member States may, for reasons of substantial public interest, lay down exemptions in addition to those laid down in paragraph 2 either by national law or by decision of the supervisory authority. 5. Processing of data relating to offences, criminal convictions or security measures may be carried out only under the control of ofﬁcial authority, or if suitable speciﬁc safeguards are provided under national law, subject to derogations which may be granted by the Member State under national provisions providing suitable speciﬁc safeguards. However, a complete register of criminal convictions may be kept only under the control of ofﬁcial authority. Member States may provide that data relating to administrative sanctions or judgments in civil cases shall also be processed under the control of ofﬁcial authority. …’ 9 Article 9 of Directive 95/46, headed ‘Processing of personal data and freedom of expression’, states: ‘Member States shall provide for exemptions or derogations from the provisions of this Chapter, Chapter IV and Chapter VI for the processing of personal data carried out solely for journalistic purposes or the purpose of artistic or literary expression only if they are necessary to reconcile the right to privacy with the rules governing freedom of expression.’ 10 Article 12 of Directive 95/46, headed ‘Right of access’, provides: ‘Member States shall guarantee every data subject the right to obtain from the controller: … (b) as appropriate the rectiﬁcation, erasure or blocking of data the processing of which does not comply with the provisions of this Directive, in particular because of the incomplete or inaccurate nature of the data; …’ 11 Article 14 of Directive 95/46, headed ‘The data subject’s right to object’, provides: curia.europa.eu/juris/document/document_print.jsf?docid=218106&text=&dir=&doclang=EN&part=1&occ=ﬁrst&mode=DOC&pageIndex=0&cid=2571804 4/19

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GC, AF, BH, ED v. National Commission on Informatics and Liberty (CNIL)

Case Law

Country

France

Country Location

Latitude: 46.808568018841505

Longitude: 2.799314618110868

Country Location (linked Case Law): France

Decision Date: Sep 24, 2019

Case Status: Closed

Case Outcome (Procedural)

Remanded for Decision in Accordance with Ruling

Case Outcome (Disposition)

Declaratory Relief

Keywords

Data Protection and Retention
Privacy
Right to be Forgotten
Search Engines

Judicial Body: Court of Justice of the European Union (CJEU)

Court Name: Grand Chamber of the Court of Justice of the European Union

Case Number: C‑136/17

Case Summary: The Grand Chamber of the Court of Justice of the European Union held in a Preliminary Ruling that the European Union Directive 95/46, which protects the right to privacy with respect to processing sensitive personal data, applied to search engine operators. Four individuals in France brought complaints before the French Data Protection Authority (CNIL) to de-reference links displayed on Google following searches of their names. This included information about their criminal convictions, judicial enquiries, as well as religious and political views. In 2015 and 2016, the CNIL refused to take up their complaints and the four appealed to France’s Conseil d’État (Council of State) against CNIL’s refusal. The Council of State referred to the Court of Justice of the European Union questions regarding the processing of sensitive personal data and the obligations of search engine operators. The Court of Justice found that the processing of personal data by search engines significantly affected privacy rights of those concerned. Data subjects could request de-referencing of such personal data and when assessing them search engine operators had to strike a balance between privacy rights of data subjects and the rights of Internet users potentially interested in that information.

Case Significance: The judgment expands expression since it gives search engine operators the authority and prerogative to decide which links to de-reference and which links to not. However, private companies are not necessarily the best arbiters of determining whether privacy rights or the public interest should take precedence, as companies are motivated by their own commercial interests and hence cannot be neutral parties. The ruling effectively “placed the burden and responsibility of balancing of users’ fundamental rights on private actors, forcing them to take up the role of private adjudicators in online space.” Yet on the positive side, it upholds a system for notice and take-down allowing search engines to respond to requests, rather than putting them in a situation where they would need to pro-actively monitor and de-index sensitive data independently.

The decision also protects the right of data subjects to ensure that sensitive information about them that is available online is accurate and up-to-date by requiring search engine operators to adjust the list of results in a way that the overall picture it gives the internet user reflects the current status quo. Despite some of the positive aspects of the ruling, requiring search engines to adjust results could render less accurate results and have some unintended consequences.

The decision establishes a binding or persuasive precedent within its jurisdiction.

Related Caselaw (self)

Source URL: Global Freedom of Expression

Collection

Columbia

Date Updated: Jul 3, 2024

Primary Documents

Judgment.pdf
English
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CYRILLA: Global Digital Rights Law

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GC, AF, BH, ED v. National Commission on Informatics and Liberty (CNIL)

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