The internet has a long and comprehensive memory, which can be very uncomfortable when you’re stored there with missteps, scandals, or even violations of the law. The supreme courts in Germany and in Europe have been dealing with the “right to be forgotten” for ten years; it’s about personal rights on the one hand and the free exchange of information on the other. Since 2017, this “right to be forgotten” has also been included in the EU General Data Protection Regulation. This Tuesday, the Federal Court of Justice (BGH) heard a case in which the almost philosophical question about the network’s memory was reduced to a very specific question: What does the person concerned have to do to remove an unpleasant article from the search engine listing to be deleted? In other words, how can you force Google to forget?
The case that gave rise to the trial is somewhat bizarre. The two plaintiffs in this case – a couple from the financial services industry – had appeared on a US website in a number of articles that presented them in a less than favorable light. The investment model operated by their company was presented critically, and photos were shown as typical professional illustrations: the plaintiff at the wheel of a luxury car, in a helicopter, in front of an airplane, the partner in a convertible. Visual message: Two questionable financial service providers are having a good time with their investors’ money.
In the course of the proceedings, of course, the website had also fallen into disrepair. Their business model – so the accusation went – was not about clarification and transparency, but blackmailing those same financial service providers. The plaintiffs also claimed to have been victims of these practices.
This shimmering backlighting remained unresolved, at least in the BGH proceedings, because the luxury couple’s lawsuit was directed solely against Google and not against the alleged transparency website: they did not want the incriminating articles to appear when their names were entered into the search engine. Because European law was at stake here, the Federal Court of Justice first appealed to the European Court of Justice. The answer has been available since December. And in the BGH hearing on Tuesday, it became apparent that the couple’s chances of success are low.
Mere doubts about the truth are not enough
While it goes without saying that Google would have no justification for distributing such articles if they were untrue. However, Google is under no obligation to actively participate in checking the content itself, as the BGH Senate Chairman Stephan Seiters made clear in the hearing. Such an obligation could lead to Google deleting the content without further ado, just to free itself from the burden of the investigation.
The decisive factor is what the data subjects have to submit in order to have Google delete the data. Because she meets the “burden of explanation and proof” to substantiate her claim. And the ECJ had made it clear that mere doubts about the truth are by no means sufficient. Those affected are responsible for “proving that the information contained in this content is obviously incorrect”, or at least a significant part of it. And the plaintiffs, as the BGH was to understand, obviously did not succeed in providing this evidence.
So you will probably have to live with the fact that Google continues to guide Internet users to the reports about questionable investment models and expensive cars. Whether this also applies to the preview images – the so-called “thumbnails” – is less clear after the course of the negotiations. The sixth BGH civil senate apparently tends to view the thumbnails in isolation, i.e. without the context provided by the website behind them. A different legal standard would therefore apply to the preview images than to the website behind them. Google could be forced to remove at least the preview images for the specific website. Of course, this would only be a minor loss for the search engine: the man in the luxury car would still be easy to find.