France, Council of State, 3 October 2018 405939

Identification of the case

• Protection of personal data (art. 8 CFREU)

• Law No. 78-17 of 6 January 1978 on information technology, data files and civil liberties, in particular Article 45

• Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, in particular Article 8

Summary of the case

In that case, the applicant had subscribed to a magazine, to which he had repeatedly asked to correct the spelling of his surname so that the particle of his surname appeared in lower case letters instead of capital letters. After his request for correction was refused, he referred the matter to the CNIL, which decided not to pursue his complaint.

• Administrative judicial enforcement

Rectification request

The Council of State dismissed the appeal. It noticed that the CNIL has broad discretionary power to decide on the action to be taken on a complaint or claim submitted to it and that it takes into account the seriousness of the alleged breaches in reaching its decision. It therefore considers that the CNIL has correctly applied article 40 of the Law No. 78-17 of 6 January 1978 on information technology, data files and civil liberties, by considering that the capital letters of the particle of the applicant's surname did not vitiate the inaccuracy of his personal data and did not create a risk of confusion or error concerning the person concerned and by deciding, therefore, not to institute proceedings under article 45, paragraph I, of the Law No. 78-17 of 6 January 1978 on information technology, data files and civil liberties.

When the author of the complaint is based on a lack of knowledge of the rights granted to him by article 40 I of the Law No. 78-17 of 6 January 1978, in particular the right to rectify his personal data, the CNIL's discretionary power to decide on the action to be taken, given the nature of the individual rights at issue, is exercised under the full control of the judge in charge of excess of power. The Council of State had already given the same solution in a 2017 ruling concerning a request for de-referencing on a website (Council of State, 24 February 2017, No. 391000).

It follows from the provisions of Article 11 of the Law No. 78-17 of 6 January 1978 on information technology, data files and civil liberties that, without prejudice to the means of appeal open before the courts in disputes between private individuals and search engine operators, the CNIL is competent to hear complaints following a decision by the operator of a search engine to refuse de-referencing and, where appropriate, to give the operator formal notice to comply with the request for de-referencing. This power is exercised, having regard to the nature of the individual rights at issue, under the full control of the judge of excess of power (CJEU, 13 May 2014, C-131/12, Google Spain SL, Google Inc. contre Agencia Espanola de Proteccion de Datos, Mario Costeja Gonzalez).

Elements of judicial dialogue

• Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)

• CJEU C-131/12,Google Spain