12/10/2019 CURIA - Documents 62 With respect to the exception in Article 8(2)(a) of Directive 95/46 and Article 9(2)(a) of Regulation 2016/679, it follows from the definition of ‘consent’ in Article 2(h) of that directive and Article 4(11) of that regulation that the consent must be ‘specific’ and must therefore relate specifically to the processing carried out in connection with the activity of the search engine, and thus to the fact that the processing enables third parties, by means of a search based on the data subject’s name, to obtain a list of results including links leading to web pages containing sensitive data relating to him or her. In practice, it is scarcely conceivable — nor, moreover, does it appear from the documents before the Court — that the operator of a search engine will seek the express consent of data subjects before processing personal data concerning them for the purposes of his referencing activity. In any event, as inter alia the French and Polish Governments and the Commission have observed, the mere fact that a person makes a request for de-referencing means, in principle, at least at the time of making the request, that he or she no longer consents to the processing carried out by the operator of the search engine. In this connection, it should also be recalled that Article 17(1)(b) of the regulation mentions among the grounds justifying the ‘right to be forgotten’ the data subject’s withdrawal of the consent on which the processing is based in accordance with Article 9(2)(a) of the regulation, where there is no other legal ground for the processing. 63 By contrast, the circumstance, referred to in Article 8(2)(e) of Directive 95/46 and Article 9(2)(e) of Regulation 2016/679, that the data in question are manifestly made public by the data subject is intended to apply, as has been observed by all those who have made submissions on the point, both to the operator of the search engine and to the publisher of the web page concerned. 64 Consequently, in such a case, despite the presence on the web page referenced of personal data falling within the special categories in Article 8(1) of Directive 95/46 and Article 9(1) of Regulation 2016/679, the processing of those data by the operator of the search engine in connection with its activity, provided that the other conditions of lawfulness are satisfied, in particular those laid down by Article 6 of the directive or Article 5 of the regulation (see, to that effect, judgment of 13 May 2014, Google Spain and Google, C-131/12, EU:C:2014:317, paragraph 72), is compliant with those provisions. 65 However, even in that case, the data subject may, pursuant to Article 14(a) of Directive 95/46 or Article 17(1)(c) and Article 21(1) of Regulation 2016/679, have the right to de-referencing of the link in question on grounds relating to his or her particular situation. 66 In any event, when the operator of a search engine receives a request for de-referencing, he must ascertain, having regard to the reasons of substantial public interest referred to in Article 8(4) of Directive 95/46 or Article 9(2)(g) of Regulation 2016/679 and in compliance with the conditions laid down in those provisions, whether the inclusion of the link to the web page in question in the list displayed following a search on the basis of the data subject’s name is necessary for exercising the right of freedom of information of internet users potentially interested in accessing that web page by means of such a search, a right protected by Article 11 of the Charter. While the data subject’s rights protected by Articles 7 and 8 of the Charter override, as a general rule, the freedom of information of internet users, that balance may, however, depend, in specific cases, on the nature of the information in question and its sensitivity for the data subject’s private life and on the interest of the public in having that information, an interest which may vary, in particular, according to the role played by the data subject in public life (see, to that effect, judgment of 13 May 2014, Google Spain and Google, C-131/12, EU:C:2014:317, paragraph 81). 67 Furthermore, where the processing relates to the special categories of data mentioned in Article 8(1) and (5) of Directive 95/46 or Article 9(1) and Article 10 of Regulation 2016/679, the interference with the data subject’s fundamental rights to privacy and protection of personal data is, as observed in paragraph 44 above, liable to be particularly serious because of the sensitivity of those data. 68 Consequently, where the operator of a search engine receives a request for de-referencing relating to a link to a web page on which such sensitive data are published, the operator must, on the basis of all the relevant factors of the particular case and taking into account the seriousness of the interference with the data subject’s fundamental rights to privacy and protection of personal data laid down in Articles 7 and 8 of the Charter, ascertain, having regard to the reasons of substantial public interest referred to in Article 8(4) of Directive 95/46 or Article 9(2)(g) of Regulation 2016/679 and in compliance with the curia.europa.eu/juris/document/document_print.jsf?docid=218106&text=&dir=&doclang=EN&part=1&occ=first&mode=DOC&pageIndex=0&cid=2571804 15/19