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Profiling by search engines, this scourge of modern times – Big Brother is Watching You – You are stuck and appear in search results: what to do?

In the age of social networks and vociferous TV shows where people come with their feelings slung over their shoulders, the right of reply is often presented as the absolute bulwark against the excessive use of freedom of expression, allowing anyone who is referred to in a published article to require the publication of a patch. However, things need to be put into perspective. Typically the profiling of people and companies by search engines, very fond of American-style freedom of expression, the savage "freedom of speech" of the US Constitution, does not allow any right of reply and really stigmatizes this who are victims of it.


The absence of a right of reply against search engines

On the internet, the right of reply is governed by:

Article 6-IV of Law No. 2004-575 of June 21, 2004 on confidence in the digital economy

Decree 2007-1527 of October 24, 2007 relating to the right of reply applicable to online public communication services and taken for the application of IV of Article 6 of Law No. 2004-575 of June 21, 2004 for the confidence in the digital economy
Article 13 of the law of July 29, 1881 on the freedom of the press

Search engines generally look favorably on what can be likened to dialogue and constructive criticism, or what reinforces and ultimately legitimizes a negative opinion, such as a response.

According to the principles of e-reputation, the insertion of a response nevertheless has a counter-productive effect in the sense that it would tend to increase the referencing of the publication that one precisely wants to combat.

However, this right of reply often remains the only way to quickly combat disparagement and defamation, invasions of privacy, while waiting for something better, when there is a way for the person concerned to reply directly, online, to the notice. (Unfortunately: no right of reply against search engines that index unfavorable content and whose power of nuisance is much greater).

This is all the more so since the remedies remain so laborious for ordinary mortals.

Consult a lawyer specializing in communication law in Paris

The palliative of the "right to be forgotten"

The Costeja judgment (Court of Justice of the European Union, May 13, 2014, Costeja / Google Spain, C-131/12) may possibly be opposed to search engines to obtain a delisting ("right to be forgotten") , and with reference to Articles 17 and 85 of EU Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data data, and repealing Directive 95/46/EC (General Data Protection Regulation) (GDPR), and Article 80 of Law No. 78-17 of January 6, 1978 relating to data processing, files and freedoms.

The Costeja judgment makes it possible to pursue the referencing made by search engines, given that they make it possible to establish the profile of a person by a search on his name, by indexing the pages which mention this name. This computer processing carried out by the engine is covered by Article 17 of the GDPR ("right to be forgotten" or "right to erasure") and developed in Article 51 of the Data Protection Act, which reserves the exercise of freedom of expression.

This delisting is not automatic. It allows a stigmatized person to claim from a search engine that certain content concerning them should no longer be marked by the engine. It must be based on valid reasons (judgment of the CJEU of September 24, 2019, judgments of the Council of State of December 6, 2019 and March 27, 2020, Court of Cassation, Civil Chamber 1, November 27, 2019, 18-14.675 , Published in the bulletin, pole 1), or on the protection of privacy.

With regard to the theme of the protection of personal data in the face of freedom of expression, we note:

Article 85 of the GDPR refers to the law of each Member State regarding the reconciliation of the right to the protection of personal data with freedom of expression.

In this regard, Article 80, 2°, of the Data Protection Act, in its version of June 1, 2019 resulting from Ordinance No. 2018-1125 of December 12, 2018, Article 1, maintains the restriction of the right to protection of personal data in the face of freedom of expression only insofar as it is exercised by a professional journalist... and Google, in its search engine activity ("Google Search") does not do journalism, but indexer. It is also accountable to the journalistic content it indexes (see DIRECTIVE (EU) 2019/790 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 17 April 2019 on copyright and related rights in the digital single market and amending Directives 96/9/EC and 2001/29/EC, Article 17).

Article 21 paragraph 1 of the GDPR allows everyone to invoke a particular situation, linked to their personal background, to oppose the processing of their personal data ("right of opposition", also referred to in Article 56 of the Data Protection Act).

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