The Council of State recalls that the right to dereference is not an absolute right

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The right to be forgotten is the possibility for a person to be able to ask the operator of a search engine to dereference information about it. Created to protect privacy on the internet, this prerogative is not absolute, however, says the Council of State in 13 decisions issued on December 6, 2019. The administrative judge gives, for the first time, a kind of user manual This may prove very useful for the National Commission for Informatics and Liberties (CNIL) and the search engine operators who are often confronted with such requests.

13 individuals had seized Google a request to dereference links to web pages containing personal data about them. The Mountain View firm refused. The applicants then appealed to the CNIL, which had also rejected those requests. The Council of State was the last resort.

A balance between privacy and the right to information

The administrative court points out that if the dereferencing of a link is a right, it is not absolute. Indeed, a balance must be struck between the applicant's right to privacy and the public's right to information. The arbitration between these two freedoms depends on the nature of the personal data concerned by the request.

If the data are sensitive (health, sexual life, political opinion …) or criminal (judicial procedure or conviction), the only reason for refusal of a request for dereference is the information of the public. For privacy data without being sensitive, it is sufficient that there is a "overriding public interest in accessing the information in question"so that the query of the user is legally rejected by the search engine operator.In addition to the characteristics of the data concerned, the Council of State states that must be taken into account"the social role of the applicant", that is to say its notoriety, its role in public life and its function in society.We must also examine the conditions under which the data have been made public and remain otherwise accessible.

The dereferencing is not equal to the deletion

The Council of State does not return on a capital information: the dereferencing does not mean the erasure of the data. Indeed, the original content remains unchanged and is always accessible, using other search criteria or by going directly to the site at the origin of the broadcast.

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