Guidelines 05/2019 on criteria of the Right to be Forgotten in search engines

Paragraph 1 at Exception 2  :  Legal obligation

56. It is difficult to imagine the existence of legal provisions that oblige search engine providers to disseminate certain information. This is a consequence of the type of activity they develop. Search engine providers do not produce or present information.

57. Therefore, it seems unlikely that Member State law includes obligations for search engine providers to publish some type of information, instead of setting the obligation for that publication to be carried out in other web pages that will then be linked by search engine providers.

58. This assessment may also be extended to the possibility that Union or Member State law enables a public authority to take decisions that oblige search engine providers to publish information directly, and not through the URL links to the web page where that information is contained.

59. If there are cases in which the law of a Member State establishes the obligation forthe search engine providers to publish decisions or documents containing personal information, or which authorises public authorities to demand such publication, the exemption contained in Article 17.3.b GDPR should be applied.

60. This application must take into account the terms in which it is established, that is, that the maintenance of the information in questions is necessary to meet the legal obligation of publication. For example, that a legal obligation, or the decision of an authority legally entitled to adopt it, may include a time limit to the publication, or expressly stated purposes that may have been reached within a certain time period. In these cases, if the request for delisting occurs having exceeded these time limits, it should be considered that the exemption is no longer applicable.

61. On the contrary, it is frequent that Member State law provides for the publication on web pages of information containing personal data. That legal obligation to publish or maintain the published information can not be considered as covered by the exemption contained in Article 17.3.b GDPR, since it is not directed to the search engine provider, but to the web publishers whose content is linked by the search engine provider’s index. Therefore, the search engine provider cannot invoke the existence of the obligation to reject a request for delisting.

62. However, the legal obligation of publication addressed to other web publishers should be taken into consideration when establishing the balance between the rights of data subjects and the interest of the Internet users in accessing the information. The fact that information must be published online by legal mandate, or following the decision of an authority legally entitled to adopt it, is indicative of an interest in the public being able to access that information.

63. That presumption of existence of a prevalent interest of the public does not operate in the same way in respect of the originating web pages compared to the results index of a search engine provider. Although the legal obligation to publish information on a certain web site may lead to the conclusion that this information should not be deleted from that web page, the decision regarding the results offered by the search engine provider when the name of a data subject is generally used as search term may be different.

64. The assessment of the request for delisting in these cases should not assume that the existence of the legal obligation of publication necessarily implies that, to the extent that this obligation is imposed ont he original web publishers, it is not possible to accept the delisting by the search engine provider.

65. The decision should be taken, as is the general rule, by balancing the rights of the data subject and the interest of the Internet users to access this information through the search engine provider.