Curia press release: "[...] In his Opinion delivered today, Advocate General Maciej Szpunar begins by stating that the provisions of Directive 95/46 should be interpreted in such a way as to take account of the responsibilities, powers and capabilities of a search engine. Thus, he points out that the prohibitions and restrictions laid down by Directive 95/46 cannot apply to the operator of a search engine as if it had itself placed sensitive data on the web pages concerned. Since the activity of a search engine logically takes place only after (sensitive) data have been placed online, those prohibitions and restrictions can therefore apply to a search engine only by reason of that referencing and, thus, through subsequent verification, when a request for de-referencing is made by the person concerned.
The Advocate General points out that Directive 95/46 lays down a prohibition on the processing of sensitive data. Consequently, he states that the prohibition on the operator of a search engine processing sensitive data requires that operator to accede, as a matter of course, to requests for dereferencing relating to links to web pages on which such data appear, subject to the exceptions provided for by Directive 95/46. The Advocate General takes the view that the exceptions to the prohibition on the treatment of sensitive data, laid down by Directive 95/46, apply even though some of the exceptions appear to be more theoretical than practical as regards their application to a search engine.
The question of the derogations authorised under freedom of expression and their reconciliation with the right to respect for private life is then addressed by the Advocate General. He proposes that the Court should reply that, where there is a request for de-referencing relating to sensitive data, the operator of a search engine must weigh up, on the one hand, the right to respect for private life and the right to protection of data and, on the other hand, the right of the public to access the information concerned and the right to freedom of expression of the person who provided the information.
Lastly, the Advocate General addresses the question of the request for de-referencing relating to personal data which have become incomplete, inaccurate or obsolete, such as, for example, press articles relating to a period before the conclusion of judicial proceedings. The Advocate General proposes that the Court should hold that, in such circumstances, it is necessary for the operator of a search engine to conduct a balancing exercise on a case-by-case basis between, on the one hand, the right to respect for private life and the right to protection of data under Articles 7 and 8 of the Charter of the Fundamental Rights of the European Union and, on the other hand, the right of the public to access the information concerned, while taking into account the fact that that information relates to journalism or constitutes artistic or literary expression."
Read the whole press release here.
Read the Opinion (at the moment only available in French) here.