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

1.2 Ground 2:  The Right to request delisting when the data subject withdraws consent where the legal basis for the processing is pursuant to Article 6.1.a or Article 9.2.a GDPR and where there is no other legal basis for the processing (Article 17.1.b)

22. According to Article 17.1.b GDPR, a data subject may obtain the erasure of personal data concerning him or her where he or she withdraws consent for the processing.

23. In case of delisting, it would mean that the search engine provider would have utilised the consent of the data subject as lawful basis for its processing. Article 17.1 GDPR indeed raises the question of the lawful basis for processing relied upon by  a search engine provider for the purpose of returning search engine results including personal data.

24. For that reason, it appears unlikely that a delisting request would be submitted by a data subject on the basis that he or she wishes to withdraw consent because the controller to whom the data subject gave his or her consent is the web publisher, not the search engine operator that indexes the data. This interpretation has been endorsed by the CJEU in its judgement C-136-17 of 24 September 2019 ( the “Google 2 judgment”). The Court indicates that “(…) the consent must be ‘specific’ and must therefore relate specifically to the processing carried out in connection with the activity of the search engine (…). In practice, it is scarcely conceivable (…) that the operator of a search engine will seek the express consent of data subjects before processing personal data concerning them for the purposes of his referencing activity. In any event, (…) the mere fact that a person makes a request for de-referencing means, in principle, at least at the time of making the request, that he or she no longer consents to the processing carried out by the operator of the search engine.”

25. Nonetheless, in the event where a data subject would have withdrawn his or her consent for the use of his or her data on a particular web page, the original publisher of that web page should inform search engine providers who have indexed that data pursuant to Article 17.2 GDPR. The data subject would thus still be entitled to obtain the delisting of personal data concerning him or her but according to Article 17.1.c in such case.