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

Paragraph 2 at Exception 2 :  Performance of a task carried out in public interest or in the exercise of official authority

66. Search engine providers are not public authorities and therefore do not exercise public powers by themselves.

67. However, they could exercise those powers if they were attributed by the law of a Member State or of the Union. In the same way that they could carry out missions of public interest if their activity was considered necessary to satisfy that public interest in accordance with national legislation.

68. Given the characteristics of search engine providers, it is unlikely that Member States will grant them public powers or consider that their activity or part of it is necessary for the achievement of a legally established public interest.

69. If, in spite of that, there is a case in which the law of the Member States grants search engines public powers or links their activity to the achievement of a public interest, they could avail of the exemption provided for in Article 17.3.b GDPR. The considerations previously made on the cases in which the law of a Member State had established a legal obligation to process information for search engine providers are also valid in this case.

70. To decide not to follow a delisting request for reasons related to this exemption, it is necessary to determine whether the maintenance of the information in the search engine results is necessary for the achievement of the public interest pursued or for the exercise of the powers of attorney.

71. On the other hand, the legal definition of powers or public interest would be carried out by a Member State, and if the search engine rejects a request for delisting on the basis of this exemption, it must also be understood that it does so because it considers that its activity is necessary to achieve public interests. The search engine provider should, in that event, provide reasons why it considers its activity to be carried out in the public interest. Without such an explanation, the denial to follow a data subject’s delisting request does not have the possibility of relying on the exemption.

72. Consequently, it would also be the Supervisory Authority of the Member State whose law is applicable that will have to deal with a potential complaint pursuant to Article 55.2 GDPR.