Admissibility

40. Google expresses doubts as to whether the first question is admissible, on the ground that the problem which it raises is hypothetical in nature. In particular, the solution suggested by the referring court takes the form of an abstract construction which is unrelated to the facts at issue in the case in the main proceedings. In its view, the Court also does not have the necessary material to provide a useful answer to that question.

41. In that regard, it should be noted that, according to settled case-law, in the context of the cooperation between the Court and the national courts provided for in Article 267 TFEU, it is solely for the national court before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted by the national court concern the interpretation of EU law, the Court of Justice is, in principle, bound to give a ruling (judgment of 15 July 2021, The Department for Communities in Northern Ireland, C-709/20, EU:C:2021:602, paragraph 54 and the case-law cited).

42. The Court may refuse to rule on a question referred by a national court for a preliminary ruling only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 15 July 2021, The Department for Communities in Northern Ireland, C-709/20, EU:C:2021:602, paragraph 55 and the case-law cited).

43. In the present case, as the Advocate General observed in point 22 of his Opinion, the referring court has provided a sufficiently precise and comprehensive picture of the factual and legal context underlying the dispute in the main proceedings and has sufficiently substantiated the need, in that context, to obtain an answer to the question submitted.

44. In that connection, it should be pointed out that the processing of personal data carried out in the context of the activity of a search engine can be distinguished from and is additional to that carried out by publishers of websites, consisting in loading those data on an internet page (judgment of 13 May 2014, Google Spain and Google, C-131/12, EU:C:2014:317, paragraph 35). Where the data subject brings an action against the operator of the search engine, the rights, interests and restrictions involved are not, therefore, necessarily the same as in the context of an action brought against a content provider, with the result that a specific weighing-up exercise for the purposes of examining a request for de-referencing under Article 17 of the GDPR is necessary.

45. It is apparent from the considerations set out by the referring court that the Court's answer to the question concerning, first, the extent of the obligations and responsibilities incumbent on the operator of a search engine in processing a request for de-referencing based on the alleged inaccuracy of the information in the referenced content and, second, the burden of proof imposed on the data subject as regards that inaccuracy is capable of having a direct impact on the assessment, by the referring court, of the action in the main proceedings, regardless of whether the applicants in the main proceedings are in a position to obtain effective judicial protection as against the content provider concerning publication on the internet of the allegedly inaccurate content.

46. As the Advocate General observed in point 22 of his Opinion, the fact that the referring court's questions regarding the methodology which it considers to be applicable in a situation such as that at issue in the main proceedings are expressed in general and abstract terms does not mean that the question referred to the Court in that regard is hypothetical.

47. It follows that the first question is admissible.

Substance

48. By its first question, the referring court asks, in essence, whether Article 17(3)(a) of the GDPR must be interpreted as meaning that, within the context of the weighing-up exercise which is to be undertaken between the rights referred to in Articles 7 and 8 of the Charter, on the one hand, and those referred to in Articles 11 and 16 of the Charter, on the other hand, for the purposes of examining a request for de- referencing made to the operator of a search engine seeking the removal of a link to content containing claims which the person who submitted the request regards as inaccurate from the list of search results, that de-referencing is subject to the condition that the question of the accuracy of the referenced content has been resolved, at least provisionally, in an action brought by that person against the provider of that content, where there is a reasonable possibility of obtaining such judicial protection.

49. As a preliminary point, it must be recalled, first, that the activity of a search engine consisting in finding information published or placed on the internet by third parties, indexing it automatically, storing it temporarily and, finally, making it available to internet users according to a particular order of preference must be classified as ‘processing of personal data’ within the meaning of Article 2(b) of Directive 95/46 and points 1 and 2 of Article 4 of the GDPR when that information contains personal data and, second, that the operator of the search engine must be regarded as the ‘controller’ in respect of that processing within the meaning of Article 2(d) of that directive and Article 4(7) of that regulation (see, to that effect, judgments of 13 May 2014, Google Spain and Google, C-131/12, EU:C:2014:317, paragraph 41, and of 24 September 2019, GC and Others (De-referencing of sensitive data), C-136/17, EU:C:2019:773, paragraph 35).

50. Indeed, as recalled in paragraph 44 of the present judgment, the processing of personal data carried out in the context of the activity of a search engine can be distinguished from and is additional to that carried out by publishers of websites, consisting in loading those data on an internet page. In addition, that activity plays a decisive role in the overall dissemination of those data in that it renders the latter accessible to any internet user making a search on the basis of the data subject's name, including to internet users who otherwise would not have found the internet page on which those data are published. Also, the organisation and aggregation of information published on the internet that are effected by search engines with the aim of facilitating their users' access to that information may, when users carry out their search on the basis of an individual's name, result in them obtaining through the list of results a structured overview of the information relating to that individual that can be found on the internet enabling them to establish a more or less detailed profile of the data subject (see, to that effect, judgments of 13 May 2014, Google Spain and Google, C-131/12, EU:C:2014:317, paragraphs 36 and 37, and of 24 September 2019, GC and Others (De- referencing of sensitive data), C-136/17, EU:C:2019:773, paragraph 36).

51. Therefore, inasmuch as the activity of a search engine is liable to affect significantly, and additionally compared with that of the publishers of websites, the fundamental rights to privacy and to the protection of personal data, the operator of the search engine as the person determining the purposes and means of that activity must ensure, within the framework of its responsibilities, powers and capabilities, that the activity meets the requirements of Directive 95/46 and of the GDPR in order that the guarantees laid down by that directive and that regulation may have full effect and that effective and complete protection of data subjects, in particular of their right to privacy, may actually be achieved (see, to that effect, judgments of 13 May 2014, Google Spain and Google, C-131/12, EU:C:2014:317, paragraph 38, and of 24 September 2019, GC and Others (De-referencing of sensitive data), C-136/17, EU:C:2019:773, paragraph 37).

52. As regards the extent of the responsibility and specific obligations of the operator of a search engine, the Court has already stated that that operator is responsible not because personal data appear on an internet page published by a third party, but because of the referencing of that page and, in particular, the display of the link to that internet page in the list of results presented to internet users following a search carried out on the basis of an individual's name, since such a display of the link in such a list is liable significantly to affect the data subject's fundamental rights to privacy and to the protection of the personal data relating to him or her (see, to that effect, judgments of 13 May 2014, Google Spain and Google, C-131/12, EU:C:2014:317, paragraph 80, and of 24 September 2019, GC and Others (De-referencing of sensitive data), C-136/17, EU:C:2019:773, paragraph 46).

53. In those circumstances, having regard to the responsibilities, powers and capabilities of the operator of a search engine as the controller of the processing carried out in connection with the activity of the search engine, the prohibitions and restrictions laid down by Directive 95/46 and by the GDPR can apply to that operator only by reason of that referencing and thus via a verification, under the supervision of the competent national authorities, on the basis of a request by the data subject (see, to that effect, judgment of 24 September 2019, GC and Others (De-referencing of sensitive data) (C-136/17, EU:C:2019:773, paragraph 47).

54. As regards such a request, the GDPR contains, in Article 17, a provision which specifically governs the ‘right to erasure’, also known as the ‘right to be forgotten’. Although paragraph 1 of that article provides that the data subject has, in principle, for the reasons listed therein, the right to obtain the erasure of personal data relating to him or her by the controller, it states, in paragraph 3, that that right may not be relied on where the processing in question is necessary on account of one of the grounds listed, which include, in Article 17(3)(a), exercising the right relating, in particular, to freedom of information.

55. Accordingly, the operator of a search engine who receives a request for de-referencing must ascertain whether the inclusion of the link to the internet page in question in the list displayed following a search carried out on the basis of the data subject's name is necessary for exercising the right to freedom of information of internet users potentially interested in accessing that internet page by means of a search, a right protected by Article 11 of the Charter (see, by analogy, judgment of 24 September 2019, GC and Others (De-referencing of sensitive data) (C-136/17, EU:C:2019:773, paragraph 66).

56. The fact that Article 17(3)(a) of the GDPR expressly provides that the data subject's right to erasure is excluded where processing is necessary for the exercise of the right of information, guaranteed in Article 11 of the Charter, is an expression of the fact that the right to protection of personal data is not an absolute right but, as recital 4 of the regulation states, must be considered in relation to its function in society and be balanced against other fundamental rights, in accordance with the principle of proportionality (see, to that effect, judgment of 24 September 2019, GC and Others (De-referencing of sensitive data), C-136/17, EU:C:2019:773, paragraph 57 and the case-law cited).

57. In that context, it should be recalled that Article 52(1) of the Charter accepts that limitations may be imposed on the exercise of rights such as those set forth in Articles 7 and 8 of the Charter, as long as the limitations are provided for by law, respect the essence of those rights and freedoms and, subject to the principle of proportionality, are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others (judgment of 24 September 2019, GC and Others (De-referencing of sensitive data), C-136/17, EU:C:2019:773, paragraph 58 and the case-law cited).

58. The GDPR, and in particular Article 17(3)(a), thus expressly lays down the requirement to strike a balance between the fundamental rights to privacy and protection of personal data guaranteed by Articles 7 and 8 of the Charter, on the one hand, and the fundamental right of freedom of information guaranteed by Article 11 of the Charter, on the other (judgment of 24 September 2019, GC and Others (De-referencing of sensitive data), C-136/17, EU:C:2019:773, paragraph 59).

59. It should be added that Article 7 of the Charter, regarding the right to respect for private and family life, contains rights corresponding to those guaranteed in Article 8(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), and that the protection of personal data is of fundamental importance to a person's enjoyment of his or her right to respect for private and family life, as guaranteed by Article 8 of the ECHR (ECtHR, 27 June 2017, Satakunnan Markkinapörssi oy and satamedia oy v. Finland, CE:ECHR:2017:0627JUD000093113, § 137). In accordance with Article 52(3) of the Charter, Article 7 of the Charter is thus to be given the same meaning and the same scope as Article 8(1) ECHR, as interpreted by the case-law of the European Court of Human Rights. The same is true of Article 11 of the Charter and Article 10 ECHR (see to that effect, judgment of 14 February 2019, Buivids, (C-345/17, EU:C:2019:122, paragraph 65 and the case-law cited).

60. It is apparent from the case-law of the European Court of Human Rights that, as regards the publication of data, for the purposes of striking a balance between the right to respect for private life and the right of freedom of expression and information, a number of relevant criteria must be taken into consideration, such as contribution to a debate of public interest, the degree of notoriety of the person affected, the subject of the news report, the prior conduct of the person concerned, the content, the form and consequences of the publication, the manner and circumstances in which the information was obtained as well and its veracity (see, to that effect, ECtHR, 27 June 2017, Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland, CE:ECHR:2017:0627JUD000093113, § 165).

61. It is in the light of those considerations that an examination must be made of the conditions in which the operator of a search engine is required to accede to a request for de-referencing and thus to remove from the list of results displayed following a search on the basis of the data subject's name, the link to an internet page on which that personal data specific to that person appear, on the ground that the referenced content contains claims which that person regards as inaccurate (see, to that effect, judgment of 24 September 2019, GC and Others (De-referencing of sensitive data) (C-136/17, EU:C:2019:773, paragraph 60).

62. In that regard, it should be noted, first of all, that, while the data subject's rights protected by Articles 7 and 8 of the Charter override, as a general rule, the legitimate interest of internet users who may be interested in accessing the information in question, that balance may, however, depend on the relevant circumstances of each case, in particular on the nature of that information and its sensitivity for the data subject's private life and on the interest of the public in having that information, an interest which may vary, in particular, according to the role played by the data subject in public life (judgments of 13 May 2014, Google Spain and Google, C-131/12, EU:C:2014:317, paragraph 81, and of 24 September 2019, GC and Others (De-referencing of sensitive data), C-136/17, EU:C:2019:773, paragraph 66).

63. In particular, where the data subject plays a role in public life, that person must display a greater degree of tolerance, since he or she is inevitably and knowingly exposed to public scrutiny (see, to that effect, ECtHR, 6 October 2022, Khural and Zeynalov v. Azerbaijan, CE:ECHR:2022:1006JUD005506911, § 41 and the case-law cited).

64. The question of whether or not the referenced content is accurate also constitutes a relevant factor when assessing the conditions for application laid down in Article 17(3)(a) of the GDPR, for the purpose of assessing whether the right of internet users to information and the content provider's freedom of expression may override the rights of the person requesting de-referencing.

65. In that regard, and as stated, in essence, by the Advocate General in point 30 of his Opinion, while, in certain circumstances, the right to freedom of expression and information may override the rights to private life and to protection of personal data, in particular where the data subject plays a role in public life, that relationship is in any event reversed where, at the very least, a part – which is not minor in relation to the content as a whole – of the information referred to in the request for de-referencing proves to be inaccurate. In such a situation, the right to inform and the right to be informed cannot be taken into account, since they cannot include the right to disseminate and have access to such information.

66. It should be added that, while the issue of whether or not the assertions in the referenced content are accurate is relevant for the application of Article 17(3)(a) of the GDPR, a distinction must be drawn between factual assertions and value judgements. While the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof (see, to that effect, ECtHR, 23 April 2015, Morice v. France, CE:ECHR:2015:0423JUD002936910, § 126).

67. Next, it is necessary to determine, first, whether, and if so to what extent, it is for the person who has submitted the request for de-referencing to provide evidence to support his or her claim relating to the inaccuracy of the information in the referenced content and, second, whether the operator of the search engine must seek to clarify the facts itself in order to establish whether the allegedly inaccurate information is or is not accurate.

68. As regards, in the first place, the obligations of the person requesting de-referencing on account of the referenced content being inaccurate, it is for that person to establish the manifest inaccuracy of the information found in that content or, at the very least, of a part – which is not minor in relation to the content as a whole – of that information. However, in order to avoid imposing on that person an excessive burden which is liable to undermine the practical effect of the right to de-referencing, that person has to provide only evidence that, in the light of the circumstances of the particular case, can reasonably be required of him or her to try to find in order to establish that manifest inaccuracy. In that regard, that person cannot be required, in principle, to produce, as from the pre-litigation stage, in support of his or her request for de-referencing made to the operator of the search engine, a judicial decision made against the publisher of the website in question, even in the form of a decision given in interim proceedings. To impose such an obligation on that person would have the effect of imposing an unreasonable burden on him or her.

69. As regards, in the second place, the obligations and responsibilities incumbent on the operator of the search engine, it is true that the operator of the search engine must, in order to determine whether content may continue to be included in the list of search results carried out using its search engine following a request for de-referencing, take into account all the rights and interests involved and all the circumstances of the case.

70. However, when assessing the conditions for application laid down in Article 17(3)(a) of the GDPR, that operator cannot be required to play an active role in trying to find facts which are not substantiated by the request for de-referencing, for the purposes of determining whether that request is well founded.

71. Accordingly, when such a request is processed, the operator of the search engine concerned cannot be required to investigate the facts and, to that end, to organise an adversarial debate with the content provider seeking to obtain missing information concerning the accuracy of the referenced content. In so far as it would require the operator of the search engine to contribute to establishing itself whether or not the referenced content is accurate, such an obligation would impose on that operator a burden in excess of what can reasonably be expected of it in the light of its responsibilities, powers and capabilities, within the meaning of the case-law referred to in paragraph 53 of the present judgment. That obligation would thereby entail a serious risk that content meeting the public's legitimate and compelling need for information would be de-referenced and would thereby become difficult to find on the internet. In that regard, there would be a real risk of a deterrent effect on the exercise of freedom of expression and of information if the operator of the search engine undertook such a de-referencing exercise quasi- systematically, in order to avoid having to bear the burden of investigating the relevant facts for the purpose of establishing whether or not the referenced content was accurate.

72. Accordingly, where the person who has made a request for de-referencing submits relevant and sufficient evidence capable of substantiating his or her request and of establishing the manifest inaccuracy of the information found in the referenced content or, at the very least, of a part – which is not minor in relation to the content as a whole – of that information, the operator of the search engine is required to accede to that request for de-referencing. The same applies where the data subject submits a judicial decision made against the publisher of the website, which is based on the finding that information found in the referenced content – which is not minor in relation to that content as a whole – is, at least prima facie, inaccurate.

73. By contrast, where the inaccuracy of such information found in the referenced content is not obvious, in the light of the evidence provided by the data subject, the operator of the search engine is not required, where there is no such judicial decision, to accede to such a request for de-referencing. Where the information in question is likely to contribute to a debate of public interest, it is appropriate, in the light of all the circumstances of the case, to place particular importance on the right to freedom of expression and of information.

74. It should be added that, in accordance with what has been stated in paragraph 65 of the present judgment, it would also be disproportionate to de-reference articles, with the result that accessing all of them on the internet would be difficult, in a situation where only certain information of minor importance, in relation to the content found in those articles as a whole, proves to be inaccurate.

75. Lastly, it must be stated that, where the operator of a search engine does not grant the request for de- referencing, the data subject must be able to bring the matter before the supervisory authority or the judicial authority so that it carries out the necessary checks and orders that controller to adopt the necessary measures (see, to that effect, judgment of 13 May 2014, Google Spain and Google (C-131/12, EU:C:2014:317, paragraph 77). It is, in particular, for the judicial authorities to ensure a balance is struck between competing interests, since they are best placed to carry out a complex and detailed balancing exercise, which takes account of all the criteria and all the factors established by the relevant case-law of the Court of Justice and of the European Court of Human Rights.

76. However, where administrative or judicial proceedings concerning the alleged inaccuracy of information found in referenced content are initiated and where the existence of those proceedings has been brought to the attention of the operator of the search engine concerned, it is for that operator, for the purposes, inter alia, of providing internet users with information which continues to be relevant and up-to-date, to add to the search results a warning concerning the existence of such proceedings.

77. In the light of all the foregoing, the answer to the first question is that Article 17(3)(a) of the GDPR must be interpreted as meaning that, within the context of the weighing-up exercise which is to be undertaken between the rights referred to in Articles 7 and 8 of the Charter, on the one hand, and those referred to in Article 11 of the Charter, on the other hand, for the purposes of examining a request for de-referencing made to the operator of a search engine seeking the removal of a link to content containing claims which the person who submitted the request regards as inaccurate from the list of search results, that de- referencing is not subject to the condition that the question of the accuracy of the referenced content has been resolved, at least provisionally, in an action brought by that person against the content provider.

The applicable law ratione temporis

78. By its second question, the referring court requests an interpretation of Article 12(b) and point (a) of the first paragraph of Article 14 of Directive 95/46 as well as of Article 17(3)(a) of the GDPR. It states, in that regard, that, while the request to have Google de-reference, on a long-term basis, the links to the articles at issue in the main proceedings falls ratione temporis within the scope of the GDPR, the request that Google put an end to the display, in the form of thumbnails, of photographs of the applicants in the main proceedings contained in the 4 June 2015 article falls ratione temporis within the scope of Directive 95/46, given that those photographs, unlike the links, were no longer displayed by the search engine operated by Google on the date when the GDPR entered into force.

79. In that regard, there is no need to distinguish between the provisions of Directive 95/46 and those of the GDPR referred to in the second question referred for a preliminary ruling, since the scope of all of those provisions must be regarded as similar for the purposes of the interpretation which the Court is required to give in the present case (see, by analogy, judgment of 1 August 2022, Vyriausioji tarnybinės etikos komisija, C-184/20, EU:C:2022:601, paragraph 58 and the case-law cited).

80. Consequently, in order to provide useful answers to the second question, it must be examined from the perspective of both Directive 95/46 and the GDPR.

Admissibility

81. Google also expresses doubts as to whether the second question is admissible, on the ground that the problem which it raises is hypothetical. First of all, Google takes the view that the subject matter of the dispute in the main proceedings is not a request to de-reference the results of an image search carried out on the basis of the names of the applicants in the main proceedings, but rather a general prohibition on displaying thumbnails corresponding to photographs illustrating one of the three articles at issue in the main proceedings. Next, Google argues that the thumbnails have not been available on the g-net website since September 2017 and the articles since 28 June 2018. Lastly, Google states that it introduced a new version of its image search engine as from 2018, in which the abbreviated title of the internet page specifically referenced and the internet address or a part of it are displayed on the results page under each thumbnail in the form of an additional link.

82. Pursuant to the principles identified by the case-law of the Court referred to in paragraphs 41 and 42 of the present judgment, it must be stated, first of all, that, in the present case, it is not obvious from the file before the Court that the interpretation of the provisions of Directive 95/46 and the GDPR, as sought by the referring court in the context of the assessment of the substance of the request seeking to have the display of the photographs brought to an end, bears no relation to the actual facts of the main action or its purpose.

83. As regards, in particular, the fact that the photographs and articles at issue in the main proceedings no longer appear on the g-net website, it is important to note, as the referring court has observed, that the removal of that content appears to be merely temporary, as shown by the statement on the g-net website that it is ‘currently’ impossible to access those articles. In those circumstances, it cannot be ruled out that those articles may be re-posted online in the future and may once again be referenced by Google's search engine. That is all the more so since Google continues to take the view that the request for de-referencing at issue in the main proceedings is unjustified and since Google continues to refuse to accede to that request.

84. Moreover, the interest in a response from the Court concerning the interpretation of the relevant provisions of Directive 95/46 and of the GDPR, in the context of the request seeking to have brought to an end the display, in the form of thumbnails, of the photographs at issue in the case in the main proceedings, cannot be called into question either by the fact, relied on by Google, that the applicants in the main proceedings have not limited their request to searches on the basis of their names, or by the fact that Google has introduced a new version of its image search engine in which the abbreviated title of the internet page specifically referenced and the internet address or a part of it are displayed on the results page under each thumbnail in the form of an additional link.

85. First, even if the request of the applicants in the main proceedings to bring to an end the display, in the form of thumbnails, of the photographs representing them were not limited to searches carried out on the basis of their names, the fact remains that that request covers a display resulting from such searches. In those circumstances, it cannot be held that the interpretation sought by virtue of the second question clearly bears no relation to the actual facts of the main action or its purpose.

86. Second, as regards the introduction in the image search of an additional link showing the internet page on which they were originally published, in accordance with the settled case-law of the Court, it is for the national courts to establish the facts on the basis of which the dispute in the main proceedings must be resolved and to decide the extent to which subsequent developments in the search engine concerned are relevant in that regard.

87. It follows that the second question is admissible.

Substance

88. By its second question, the referring court asks, in essence, whether Article 12(b) and point (a) of the first paragraph of Article 14 of Directive 95/46 as well as Article 17(3)(a) of the GDPR must be interpreted as meaning that, in the context of the weighing-up exercise which is to be undertaken between the rights referred to in Articles 7 and 8 of the Charter, on the one hand, and those referred to in Articles 11 and 16 of the Charter, on the other hand, for the purposes of examining a request for de-referencing made to the operator of a search engine seeking the removal from the results of an image search carried out on the basis of the name of a natural person of photographs displayed in the form of thumbnails representing that person, the original context of the publication of those photographs on the internet must be conclusively taken into account.

89. That question thereby referred to the Court involves a request which seeks the removal of the photographs displayed in the form of thumbnails, which illustrated the article published on the g-net website on 4 June 2015, from the results of the image search carried out on the basis of the names of the applicants in the main proceedings. In that regard, the referring court seeks, in particular, to ascertain whether, for the purposes of assessing whether that request is well founded, account should be taken solely of the informative value of the thumbnails as such, in the neutral context of the list of results, or whether regard must also be had to the original context of the publication of the photographs, which is not apparent solely from the display of thumbnails in the context of the list of results.

90. As a preliminary point, it should be noted, as the Advocate General did in point 53 of his Opinion, that image searches carried out by means of an internet search engine on the basis of a person's name are subject to the same principles as those which apply to internet page searches and the information contained in them. The Court's case-law referred to in paragraphs 49 to 61 of the present judgment therefore also applies to the processing of a request for de-referencing which seeks the removal of photographs displayed in the form of thumbnails from the results of an image search.

91. In that regard, it is important to state, first of all, that the display, in the results of an image search, of photographs of natural persons in the form of thumbnails constitutes processing of personal data in respect of which the operator of the search engine concerned, as ‘controller’ within the meaning of Article 2(d) of Directive 95/46 and Article 4(7) of the GDPR, must, within the framework of its responsibilities, powers and capabilities, ensure compliance with the requirements contained in those provisions.

92. Next, it should be noted that the question referred concerns the specific method of searching for images offered by certain search engines, such as the search engine at issue in the main proceedings, by means of which internet users can search for information of any kind which takes the form of graphic content (photographs, representations of paintings, designs, graphs, tables, and so forth). When conducting such a search, the search engine generates a list of results consisting of thumbnails providing a link to internet pages containing both the search terms used and the graphic content set out in that list.

93. In that regard, it has been held that, since the inclusion in the list of results, displayed following a search made on the basis of a person's name, of an internet page and of the information contained on it relating to that person makes access to that information appreciably easier for any internet user making a search in respect of that person and may play a decisive role in the dissemination of that information, it is liable to constitute a more significant interference with the data subject's fundamental right to privacy than the publication on the internet page (judgment of 13 May 2014, Google Spain and Google, C-131/12, EU:C:2014:317, paragraph 87).

94. That is all the more so where, following a search by name, photographs of the data subject are displayed in the form of thumbnails, that display being such as to constitute a particularly significant interference with the data subject's rights to private life and that person's personal data referred to in Articles 7 and 8 of the Charter.

95. A person's image constitutes one of the chief attributes of his or her personality as it reveals the person's unique characteristics and distinguishes the person from others. The right to the protection of one's image is thus one of the essential components of personal development and mainly presupposes that person's control over the use of that image, including the right to refuse publication of it. It follows that, while freedom of expression and of information undoubtedly includes the publication of photographs, the protection of the right to privacy takes on particular importance in that context since photographs are capable of conveying particularly personal or even intimate information about an individual or his or her family (see, to that effect, ECtHR, 7 February 2012, Von Hannover v. Germany, CE:ECHR:2012:0207JUD004066008, §§ 95, 96 and 103 and the case-law cited).

96. Consequently, when the operator of a search engine receives a request for de-referencing which seeks the removal, from the results of an image search carried out on the basis of the name of a person, of photographs displayed in the form of thumbnails representing that person, it must ascertain whether displaying the photographs in question is necessary for exercising the right to freedom of information of internet users who are potentially interested in accessing those photographs by means of such a search, a right protected by Article 11 of the Charter (see, by analogy, judgment of 24 September 2019, GC and Others (De-referencing of sensitive data) (C-136/17, EU:C:2019:773, paragraph 66).

97. In that regard, the contribution to a debate of public interest is an essential factor to be taken into consideration when striking a balance between competing fundamental rights, for the purposes of assessing whether what prevails are (i) the data subject's rights to respect for private life and to protection of his or her personal data or (ii) the rights to freedom of expression and information.

98. In so far as the search engine displays photographs of the data subject outside the context in which they are published on the referenced internet page, most often in order to illustrate the text elements contained in that page, it is necessary to establish whether that context must nevertheless be taken into consideration when striking a balance between the competing rights and interests.

99. In that context, as the Advocate General observed in point 54 of his Opinion, the question whether that assessment must also include the content of the internet page containing the photograph displayed in the form of a thumbnail, the removal of which is sought, depends on the purpose and nature of the processing at issue.

100. As regards, in the first place, the purpose of the processing at issue, it should be noted that the publication of photographs as a non-verbal means of communication is likely to have a stronger impact on internet users than text publications. Photographs are, as such, an important means of attracting internet users' attention and may encourage an interest in accessing the articles they illustrate. Since, in particular, photographs are often open to a number of interpretations, displaying them in the list of search results as thumbnails may, in accordance with what has been stated in paragraph 95 of the present judgment, result in a particularly serious interference with the data subject's right to protection of his or her image, which must be taken into account when weighing-up competing rights and interests.

101. Consequently, a separate weighing-up of competing rights and interests is required depending on whether the case concerns, on the one hand, articles containing photographs which are published on an internet page and which, when placed into their original context, illustrate the information provided in those articles and the opinions expressed in them, or, on the other hand, photographs displayed in the list of results in the form of thumbnails by the operator of a search engine outside the context in which they were published on the original internet page.

102. In that regard, it must be recalled that not only does the ground justifying the publication of a piece of personal data on a website not necessarily coincide with that which is applicable to the activity of search engines, but also, even where that is the case, the outcome of the weighing-up of the rights and interests at issue may differ according to whether the processing carried out by the operator of a search engine or that carried out by the publisher of that internet page is at issue, given that, first, the legitimate interests justifying the processing may be different and, second, the consequences of the processing for the data subject, and in particular for his or her private life, are not necessarily the same (judgment of 13 May 2014, Google Spain and Google, C-131/12, EU:C:2014:317, paragraph 86).

103. As regards, in the second place, the nature of the processing carried out by the operator of the search engine, it must be observed, as did the Advocate General in point 55 of his Opinion, that, by retrieving the photographs of natural persons published on the internet and displaying them separately, in the results of an image search, in the form of thumbnails, the operator of a search engine offers a service in which it carries out autonomous processing of personal data which is distinct both from that of the publisher of the internet page from which the photographs are taken and from that, for which the operator is also responsible, of referencing that page.

104. Therefore, an autonomous assessment of the activity of the operator of the search engine, which consists of displaying results of an image search, in the form of thumbnails, is necessary, given that the additional interference with fundamental rights resulting from such activity may be particularly intense owing to the aggregation, in a search by name, of all information concerning the data subject which is found on the internet. In the context of that autonomous assessment, account must be taken of the fact that the display of the photographs in the form of thumbnails on the internet constitutes, in itself, the result sought by the internet user, regardless of his or her subsequent decision to access the original internet page or not.

105. It should be added that such a specific weighing-up exercise, which takes account of the autonomous nature of the data processing performed by the operator of the search engine, is without prejudice to the possible relevance of text elements which may directly accompany the display of a photograph in the list of search results, since such elements are capable of casting light on the informative value of that photograph for the public and, consequently, of influencing the weighing-up of the rights and interests involved.

106. In the present case, it is apparent from the observations in the order for reference that, while the photographs of the applicants in the main proceedings contribute, in the context of the 4 June 2015 article of which they form part, to conveying the information and opinions expressed therein, those photographs, outside that context, when they appear solely in the form of thumbnails in the list of results displayed following a search carried out by the search engine, have little informative value. It follows that, if the request for de-referencing of that article were to be rejected, on the ground that freedom of expression and of information must prevail over the rights of the applicants in the main proceedings to respect for their private life and to protection of their personal data, that fact would be without prejudice to the appropriate outcome of the request for removal of those photographs displayed in the form of thumbnails in the list of results.

107. By contrast, if the request for de-referencing of the 4 June 2015 article at issue were to be granted, the display, in the form of thumbnails, of the photographs contained in that article would have to be removed. If that display were retained, the practical effect of de-referencing the article would be compromised since internet users would continue to have access to the entire article, by virtue of the link contained in the thumbnails which leads to the internet page on which the article from which the thumbnails are taken is published.

108. In the light of all the foregoing, the answer to the second question is that Article 12(b) and point (a) of the first paragraph of Article 14 of Directive 95/46 as well as Article 17(3)(a) of the GDPR must be interpreted as meaning that, in the context of the weighing-up exercise which is to be undertaken between the rights referred to in Articles 7 and 8 of the Charter, on the one hand, and those referred to in Article 11 of the Charter, on the other hand, for the purposes of examining a request for de-referencing made to the operator of a search engine seeking the removal from the results of an image search carried out on the basis of the name of a natural person of photographs displayed in the form of thumbnails representing that person, account must be taken of the informative value of those photographs regardless of the context of their publication on the internet page from which they are taken, but taking into consideration any text element which accompanies directly the display of those photographs in the search results and which is capable of casting light on the informative value of those photographs.