Opinion of the Advocate General — ECLI:EU:C:2022:271
Date: 2022-04-07
Language of the case: German
Subject matter: Principles, objectives and tasks of the Treaties;Approximation of laws;Fundamental rights;Data protection;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
24 September 2020 
Referring court: 
Bundesgerichtshof (Germany) 
Date of the decision to refer: 
27 July 2020 
Applicants and appellants on a point of law: 
TU 
RE 
Defendant and respondent in the appeal on a point of law: 
Google LLC 
  
Subject matter of the main proceedings 
Claim for de-referencing of particular links in search results that lead to online 
third-party articles identifying the applicants and featuring photographs of them, 
and for an order requiring the defendant to refrain from displaying those 
photographs in the form of preview images (thumbnails) 
Subject matter and legal basis of the request for a preliminary ruling 
Interpretation of EU law, Article 267 TFEU  
Questions referred for a preliminary ruling 
1. Is it compatible with the data subject’s right to respect for private life 
(Article 7 of the Charter of Fundamental Rights of the European Union, OJ C 202 
of 7 June 2016, p. 389) and to protection of personal data (Article 8 of the 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-460/20 
 
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Charter), if, within the context of the weighing-up of conflicting rights and 
interests arising from Articles 7, 8, 11 and 16 of the Charter, within the scope of 
the examination of his request for de-referencing brought against the data 
controller of an internet search engine, pursuant to Article 17(3)(a) of Regulation 
(EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on 
the protection of natural persons with regard to the processing of personal data 
and on the free movement of such data and repealing Directive 95/46/EC (General 
Data Protection Regulation, GDPR, OJ L 119 of 4 May 2016, p. 1), when the link, 
the de-referencing of which the applicant is requesting, leads to content that 
includes factual claims and value judgements based on factual claims the truth of 
which is denied by the data subject, and the lawfulness of which depends on the 
question of the extent to which the factual claims contained in that content are 
true, the national court also concentrates conclusively on the issue of whether the 
data subject could reasonably seek legal protection against the content provider, 
for instance by means of interim relief, and thus at least provisional clarification 
on the question of the truth of the content displayed by the search engine data 
controller could be provided? 
2. In the case of a request for de-referencing made against the data controller of 
an internet search engine, which in a name search searches for photos of natural 
persons which third parties have introduced into the internet in connection with 
the person’s name, and which displays the photos which it has found in its search 
results as preview images (thumbnails), within the context of the weighing-up of 
the conflicting rights and interests arising from Articles 7, 8, 11 and 16 of the 
Charter pursuant to Article 12(b) and Article 14, first paragraph, (a) of Directive 
95/46/EC of the European Parliament and of the Council of 24 October 1995 on 
the protection of individuals with regard to the processing of personal data and on 
the free movement of such data (Data Protection Directive, OJ L 281 of 
23 November 1995, p. 31)/Article 17(3)(a) of the GDPR, should the context of the 
original third-party publication be conclusively taken into account, even if the 
third-party website is linked by the search engine when the preview image is 
displayed but is not specifically named, and the resulting context is not shown 
with it by the internet search engine? 
Provisions of EU law cited 
Charter of Fundamental Rights of the European Union, Articles 7, 8, 11 and 16 
Regulation (EU) 2016/679 of the European Parliament and of the Council of 
27 April 2016 on the protection of natural persons with regard to the processing of 
personal data and on the free movement of such data, and repealing Directive 
95/46/EC; Article 17, fourth recital 
Directive 95/46/EC of the European Parliament and of the Council of 24 October 
1995 on the protection of individuals with regard to the processing of personal 
data and on the free movement of such data; Articles 12 and 14 
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Case-law cited: 
- Case-law of the European Court of Justice 
judgment of 13 May 2014, Google Spain and Google (C-131/12, EU:C:2014:317) 
judgment of 24 September 2019, GC and Others (De-referencing of sensitive data 
(C-136/17, EU:C:2019:773) 
judgment of 24 September 2019, Google (Territorial scope of de-referencing) 
(C-507/17, EU:C:2019:772) 
judgment of 29 July 2019, Spiegel Online (C-516/17, EU:C:2019:625) 
judgment of 14 February 2019, Buivids (C-345/17, EU:C:2019:122) 
judgment of 7 August 2018, Renckhoff (C-161/17, EU:C:2018:634) 
judgment of 8 September 2016, GS Media (C-160/15, EU:C:2016:644) 
judgment of 16 February 2012, SABAM (C-360/10, EU:C:2012:85) 
judgment of 24 November 2011, Scarlet Extended (C-70/10, EU:C:2011:771) 
judgment of 16 December 2008, Satakunnan Markkinapörssi and Satamedia 
(C-73/07, EU:C:2008:727) 
- Case-law of the European Court of Human Rights  
judgment of 28 June 2018, M.L. and W.W. v. Germany, 
CE:ECHR:2018:0628JUD006079810  
judgment of 4 December 2018, Magyar Jeti Zrt v. Hungary, 
CE:ECHR:2018:1204JUD001125716 
judgment of 27 June 2017, Satakunnan Markkinapörssi OY and Satamedia v. 
Finland, CE:ECHR:2017:0627JUD000093113 
judgment of 2 February 2016, Magyar Tartalomszolgáltatók Egyesülete and 
Index.hu Zrt v. Hungary, CE:ECHR:2016:0202JUD002294713 
judgment of 7 February 2012, Axel Springer v. Germany, 
CE:ECHR:2012:0207JUD003995408  
judgment of 7 February 2012, Von Hannover v. Germany (No 2), 
CE:ECHR:2012:0207JUD004066008 
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Brief summary of the facts and proceedings 
1 The first applicant works in a position of responsibility, or is involved, in various 
companies which provide financial services. The second applicant was the first 
applicant’s cohabiting partner and, until May 2015, held general commercial 
power of representation in one of those companies. 
2 On 27 April 2015, 4 June 2015 and 16 June 2015, three articles appeared on the 
website www.g …net (‘g-net’) which criticised the investment model of several of 
those companies. The article dated 4 June 2015 also featured three photographs of 
the first applicant and one photograph of the second applicant. The articles 
prompted doubts as to the reliability of the investment model, while the images, in 
conjunction with the articles, suggested that the applicants were enjoying a life of 
externally financed luxury. The operator of the g-net website is G-LLC, according 
to the imprint. The corporate purpose of G-LLC is, according to its own statement, 
‘to contribute consistently towards fraud prevention in the economy and society 
by means of active investigation and constant transparency’. The business model 
of G-LLC has been criticised in various publications, including with the 
accusation that it attempts to blackmail companies by initially publishing negative 
reports and then offering to delete the reports or prevent negative reporting in 
return for protection money. 
3 The defendant displayed in its search results the articles dated 4 June 2015 and 
16 June 2015 when the applicants’ first names and surnames were entered in its 
search engine, both separately and in conjunction with particular company names, 
and the article of 27 April 2015 was displayed when particular company names 
were entered in its search engine, and linked to them in each case. The defendant 
also displayed photographs of the applicants contained in the article dated 4 June 
2015 as thumbnails in the list of results of its image search; this has no longer 
been the case since September 2017. Since 28 June 2018, the linked articles have 
no longer been available to view on g-net either. 
4 The action by which the applicants sought to have the hits and thumbnails 
removed from the list of results by the defendant remained unsuccessful before the 
lower courts. The appellate court assumed that the processing of the applicants’ 
personal data was carried out lawfully by the defendant and that no remedy could 
therefore be sought on the basis of Article 17 of Regulation 2016/679. It held that, 
within the scope of the pending consideration of conflicting rights and interests of 
the parties in accordance with Article 6(1)(f) of Regulation 2016/679, the specific 
working method and special significance of a search engine in making the internet 
usable must be weighted accordingly. It also stated that, as the search engine 
operator normally has no legal relationship with the authors of the content shown 
in the list of results, as the investigation and evaluation of all facts of the case are 
not possible without taking account of a statement from the content provider, and 
as only the names of the data subject were available to the search engine operator, 
the operator of a search engine would have specific duties to act only if it became 
aware of an obvious and clearly discernible infringement of rights as a result of a 
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specific notification from the data subject. Those principles, the court stated, 
applied correspondingly if the use of the search engine was limited to an image 
search. 
5 It also stated that, in so far as the veracity of the alleged fact is concerned, the duty 
to state the facts and the burden of proof lies with the claimant, that is to say, the 
applicants. As the applicants have claimed that the facts reported about them and 
the stated value judgements are untrue, but have not proven this, it was not 
possible for the defendant to make a final judgement on the content it has linked 
to. For this reason, the defendant was not required to de-reference the search 
results in question according to the criterion of ‘obvious and clearly discernible 
infringement of rights’. The court stated that there is also no evidence of any 
rights infringement in respect of the images displayed in the form of thumbnails 
that is obvious and clearly discernible to the defendant. 
Brief summary of the grounds for the request 
6 The successful outcome of the appeal on a point of law pending before the 
referring court depends on the interpretation of EU law. Regulation 2016/679 is 
applicable with respect to the time period, circumstances and geographical area 
covered by the links to the three articles mentioned. The applicants’ claim for 
permanent de-referencing from the search results to which they object is covered 
by Article 17(1) of Regulation 2016/679. Articles 12(b) and 14(1)(a) of Directive 
95/46 are applicable with regard to the thumbnails, as the defendant has, in any 
event, no longer been displaying the thumbnails since 2017, prior to the entry into 
force of Regulation 2016/679. The referring court assumes that the conditions for 
de-referencing in accordance with the General Data Protection Regulation and the 
Data Protection Directive apply in parallel. For that reason, the referring court 
requests that the second question concerning the image source also be answered in 
relation to the General Data Protection Regulation. 
The first question referred 
7 Article 17(1) of Regulation 2016/679 is not, in accordance with Article 17(3)(a) 
thereof, applicable if the data processing carried out by the search engine operator 
is necessary for exercising the right to freedom of expression and information. As 
stated in recital (4) of the regulation, the right to the protection of personal data is 
not an absolute right; it must be considered in relation to its function in society 
and be balanced against other fundamental rights, in accordance with the principle 
of proportionality. This consideration of fundamental rights must be made on the 
basis of all relevant circumstances in an individual case, taking account of the 
severity of the infringement of the fundamental rights of the data subject (the 
applicants) on the one hand, and, on the other hand, the defendant’s fundamental 
rights, the interests of its users and the general public, and the fundamental rights 
of providers of the content shown in the results links which are the subject of 
objection. 
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8 The basis for weighing up is the procedure employed in the defendant’s search 
engine. Specifically, this concerns its own act of data processing, which must also 
be evaluated separately in relation to the associated restrictions on fundamental 
rights. The question of whether the linking is lawful is separate from the question 
of whether publication of the linked articles by the content provider is lawful. 
9 In the present case, the applicants base their request for de-referencing on the 
claim that the statements contained in the three linked articles are false. The 
defendant’s view is that it is unable to appraise the veracity of the statements 
being objected to. 
10 As the statements in question infringe the data subjects’ fundamental rights to 
respect for private life and protection of personal data provided for respectively in 
Articles 7 and 8 of the Charter, the weighing-up requested in accordance with 
Article 17(3)(a) of Regulation 2016/679 depends on whether the factual claims 
contained in the linked articles are true. If they are true, a justified public interest 
in accessing information would exist, and the interests of the search engine 
operator, the content provider, and the users protected as fundamental rights 
would outweigh the applicants’ interests protected under Articles 7 and 8 of the 
Charter.  
11 The defendant has no information as to the veracity of the factual claims objected 
to by the applicants, and, within the scope of assessing the request for de-
referencing, it was therefore unable to weigh up, as it is required to do, the 
conflicting rights and interests arising from Articles 7 and 8 of the Charter, on the 
one hand, and from Articles 11 and 16 of the Charter, on the other hand. 
12 The question of whether the defendant ought to have complied with the 
applicants’ request for de-referencing therefore depends on whether the applicants 
would have been required to prove the alleged falsehood of the claims to which 
they objected or to at least present specific evidence of falsehood, or whether the 
defendant should have taken the applicants’ claim of falsehood of the factual 
claims to which they objected to be correct or should have investigated the facts of 
the matter. 
13 In the view of the referring court, the conditions for possible de-referencing 
cannot disappear simply because the articles originally displayed by the defendant 
in the list of results ceased to be available for view on g-net from 28 June 2018. 
The articles could, after all, be posted online again. 
14 There is no clarification in EU law regarding the key question of the legal dispute 
referred to in paragraph 12, regarding which obligations fall to which party in a 
case of a request for de-referencing when the veracity of the content displayed by 
the search engine is disputed. 
15 A schematic solution which regards the obligation as resting with either the search 
engine operator or the data subject seems unjustifiable in view of the fact that, on 
the one hand, the data subject’s right of objection does not exist unconditionally, 
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and, on the other hand, internet search engines play an essential role in making 
this medium usable. Rather, the conflicting rights and interests in such sets of 
circumstances arising from Articles 7 and 8 of the Charter, on the one hand, and 
from Articles 11 and 16 of the Charter, on the other hand, must be weighed up 
equally against one another. 
16 If, in a case such as the present one, the data subject were held to be obliged to 
provide the search engine operator with evidence of the falsehood of the linked 
content, he would be required to declare to the search engine operator details of a 
potentially particularly sensitive nature that might affect personal rights, and 
would nevertheless bear the risk of the matter not being amenable to investigation. 
This risk would be especially relevant in the context of proving a negative fact; in 
other words, if the data subject were required to prove that he had not done 
something. The entitlement to de-referencing under Article 17(1) of Regulation 
2016/679 would be practically rendered valueless in these cases. 
17 By contrast, if the search engine operator were required to accept the data 
subject’s claim of the falsehood of a fact as being correct when deciding on a 
request for de-referencing, there would then be a risk that true factual claims in 
which there would be a justified public interest in information and the publication 
of which would undoubtedly be permitted given the veracity of the factual claim 
would not be displayed by the search engine to a material extent and would be 
publicly accessible only with increased difficulty. This would result in a breach of 
the content provider’s rights to freedom of expression that are protected under 
Article 11 of the Charter and the public interest in accessing such forms of 
expression. 
18 For those reasons, the only option is a conciliatory solution instead of a schematic 
one. For example, the search engine operator could be requested to investigate and 
evaluate the true facts of a case within the scope of a notice and take down 
procedure, while obtaining the opinion of the responsible content provider as is 
normally required for such a procedure. However, the data subject himself could 
also be requested to arrange a review of the truth of the content displayed by the 
search engine operator, at least provisionally (in other words, by means of interim 
relief), but only if the bringing of proceedings for interim relief against the content 
provider is reasonable for the data subject, depending on the actual circumstances 
of the individual case. 
19 The referring court tends towards the latter approach, specifically a claim against 
the content provider by the data subject to review the truthful nature of the linked 
content. The question of truth of the content can, in fact, be answered only within 
the relationship between the content provider and the data subject. Although the 
search engine operator is directly responsible under data protection law, it remains 
merely an intermediary with regard to the content to which it has provided a link. 
A prior claim against the content provider by the data subject would thus be 
limited to such sets of circumstances in which the question of truth of the 
information linked to by the search engine operator cannot be reviewed as part of 
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the handling of a request for de-referencing by the deciding court in the overall 
weighing-up of rights and interests arising from Articles 7, 8, 11 and 16 of the 
Charter in relation to the data subject and the search engine operator. 
The second question referred 
20 If the data controller of an image search engine, such as the defendant is in this 
case, displays thumbnails of images which it has found on the internet for the 
requested search term in a list of search results it has produced itself, this 
constitutes independently making those images accessible and independent data 
processing. The independent displaying of thumbnails in the search engine’s list 
of results does not, by itself, indicate the context of the original publication; 
rather, the thumbnail in the results link is devoid of context. 
21 Within the scope of Articles 12(b) and 14(1)(a) of Directive 95/46, and 
Article 17(3)(a) of Regulation 2016/679, the determining factor in the pending 
weighing-up of rights and interests arising from Articles 7, 8, 11 and 16 of the 
Charter is whether this context-neutral thumbnail alone or the original context of 
the image publication is to be taken into account. 
22 With regard to the images, the referring court also expresses its view that the time-
related conditions for the applicants’ request for de-referencing have not ceased to 
apply. 
23 In the first instance, the fact that the thumbnails ultimately concern a link to a 
third-party website favours a general consideration of the context of the original 
publication. It is clear to the perceptive average user of an image search engine 
that the thumbnails compiled by the search engine in the list of results have been 
filtered from third-party publications and have generally been published in a 
particular context. 
24 The fact that the operations of a search engine data controller are regarded as 
independent supports the argument that the context of the original third-party 
publication should be ignored in any examination of the request for de-
referencing. An internet search engine contributes towards the wider global 
dissemination of images that it has indexed by making them accessible to any 
internet user who carries out a search using the name of the person in question. 
25 If a search engine operator is regarded as operating independently, it therefore 
becomes more relevant that the original context of the image publication is not 
stated when the thumbnail is displayed and is not otherwise visible either, even 
though it can be traced back through multiple links. With regard to the separate 
assessment of the search engine data controller’s operations, account must be 
taken of the fact that a casual user of the image search engine will only consider 
the thumbnails in any case, without tracing back the origin of the images and their 
original context in any detail. The search engine data controller strips the images 
of their context by displaying them entirely as a thumbnail, and even shows them 
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in isolation as its own content on its webpage, abandoning its status as a mere 
intermediary. For this reason, it seems logical, in order to judge the lawfulness of 
the search engine data controller’s data processing, to base the pending weighing-
up only on the rights and interests apparent from the thumbnail itself. 
26 In the opinion of the referring court, the latter view takes account of an 
individual’s right to protection of his own image, as this right requires, in 
particular, that the data subject should determine how his own image is handled, 
including in particular the opportunity to oppose dissemination of the image.