The French Data Protection Authority Publishes a Q&A to Recall the Main Characteristics of the Right to De-listing

On April 7, 2020, the French Data Protection Authority (the CNIL) published on its website a Q&A on the right to de-listing. The right to de-listing enables a data subject to request from a search engine to remove one or several results provided when a search request is carried out using the data subject’s name and surname.

The timing of this publication is interesting as it took place a few days after the decision of the French Highest Administrative Court (the Conseil d’Etat) on the so-called Google case.

Back in 2016, Google Inc. was fined EUR 100,000 by the CNIL as it refused to abide by the formal notice issued months earlier, requesting Google Inc. to proceed with  the de-listing of the results on all of its domain names (not only the French one) when it was requested to do so by a data subject. Google Inc. challenged the CNIL’s decision before the Conseil d’Etat which, in turn, stayed the proceedings and referred several preliminary rulings to the ECJ regarding the conditions within which the right to de-listing must be carried out.

Following the ECJ’s rulings, the Conseil d’Etat overturned on March 27, 2020 the CNIL’s decision and held that the CNIL did not have the competence to impose a global de-listing as its jurisdiction is limited to Europe. It should however be mentioned that the Conseil d’Etat underlined that a law may allow the CNIL to impose a global de-listing—which is not the case today—but that, even in such case, a global de-listing cannot be systematic and could only be imposed on a case-by-case basis.

In its Q&A, the CNIL also highlights:

  • the conditions within which the right to de-listing may be carried out by a data subject;
  • the right of a search engine to refuse a request of de-listing and the criteria that are to be considered by the search engine;
  • the exercise of the de-listing insofar sensitive data or data including offences and criminal convictions are concerned. In such situations, the CNIL shall assess whether such data is “strictly necessary” to public information;
  • the possibility for a data subject to file a complaint in the event of a refusal by the search engine to proceed to the de-listing. In such case, the CNIL would check the justifications provided by the search engine and would weigh the arguments of both parties.

The CNIL Q&A is available in English by following this link: https://www.cnil.fr/en/right-de-listing-questions.