German courts had a few opportunities to decide on cease and desist claims against search engines with the aim to block certain search results in connection with the claimant’s name, a situation often associated with the right to be forgotten – or RTBF – as established by the ECJ. Delicate decisions need to be taken.
Most recently, the Regional Court of Frankfurt used Article 17 (1) GDPR as the legal bases for this (decisions dated 28 Feb 2019, case ref 2-03 O 315/17). It held that where a data subject may in certain in cases request deletion this implies that cease and desist from processing in the future can be claimed as well. The court arrived at this interpretation by autonomously construing European law.
Earlier this year, the Higher Regional Court of Dresden in a similar matter also reviewed Article 17 GDPR in this context (decisions dated 7 Feb 2019, case ref 4 W 1149/18), but had the dismissed the claim based on Article 17 para (3), arguing that in the present case the balancing of interests between such of the data subject and of the general public especially with a view to the function of search engines and their importance for freedom of information, went in favour of the search engines.
The decisions illustrate the real problem: search engines face the difficult task of assessing the balance of interests in each individual case. The German courts do provide some support to the engines by requiring that the claimant shows an infringement of rights which is “obvious and clearly recognizable at first sight”. However, even if this prerequisite is met the actual weighing of interests may still be difficult and delicate and is always treading the fine line between over-blocking and undue exposure.