With a disturbing decision, related to case C-136/17 in re: search engine’s de-listing duties the European Court of Justice hold that
the operator of the search engine as the person determining the purposes and means of that activity must ensure, within the framework of his responsibilities, powers and capabilities, that the activity meets the requirements of EU law in order that the guarantees laid down by EU law may have full effect and that effective and complete protection of data subjects, in particular of their right to privacy, may actually be achieved.
but did not spend a single word on the role and duties of the originator of information.
In other words: a search engine retrieves what has been made public by somebody else. If the content needs to be updated to match the “fairness” requisite, this should firstly be a legal obligation for the content creator.
Putting, in contrast, duties on a search engine without addressing at the same time the position of those who release information online sends a wrong message: do whatever you want, because somebody else will be liable for your actions.
As strong as this statement might sounds, it is the next iteration of the legal theory of “intermediary liability” aimed at shift burdens and fines over the electronic communication service provider rather than targeting the actual culprit of an infringement: the user.