Can the right to be forgotten be enforced in Europe?

In both Germany and Italy, every important new contact in business is first “googled”. If the search engine then disseminates false information, this can not only be defamatory, but also massively damaging to business. Under certain conditions, the data subject therefore has the right to have the data deleted in accordance with Art. 17 GDPR. In its decision of 4 July 2024 (15 U 60/23), the Cologne Higher Regional Court granted a local politician, who was the subject of demonstrably false and damaging information in the search engine results, the right to have it deleted by Google. The significance of the judgment, however, does not lie in the decision itself, but in the fact that the Higher Regional Court of Cologne considered the Irish company that operates Google's European business to be the proper defendant. Google Ireland, which was sued, had previously defended itself by claiming that it only provided access to the search engine, while the decisions on the relevant search results were not made by it, but by the Google company in the United States. The plaintiff should have taken legal action against Google in California.

However, in line with the case law of the Federal Court of Justice, the Higher Regional Court of Cologne left no doubt that Google Ireland, as the operator of the search engine in Europe, is considered to be the controller within the meaning of Article 4(7) of the GDPR and must therefore ensure that the data is erased.

On 13 May 2014, the European Court of Justice (C-131/12) had already ruled in favour of a Spanish data subject against Google and established the search engine's responsibility for its search results. In this case, however, Google itself had appealed against a decision by the Spanish data protection authority. The question of whether the person concerned, who wishes to take legal action for the deletion of the data and possibly for damages, has to go to the United States to do so was therefore not raised before the ECJ.

We are not aware of a similar decision by an Italian court and would appreciate being sent a copy should one be forthcoming. The decision by the Cologne judges is not yet legally binding. The first instance, the Cologne District Court, had seen the question of the responsibility of Google Ireland in Google's favour.

The case is a good example of how formal law can beat substantive law. Neither the average consumer nor a small company can afford to start a civil lawsuit in the USA.

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