Forget what you have read. Szpunar AG does not restrict EU ‘Right to be forgotten’ /data protection laws to European territory.

I have previously reported extensively on various national and European developments re the right to have search results delisted, more popularly referred to as the ‘right to be forgotten’ (‘RTBF’ – a product of the CJEU in Google Spain) and its territorial limits. (Search string ‘Google’ or ‘rtbf’ ought to assist the reader). Szpunar AG opined mercifully  succinctly last Thursday in C-505/17.

Possibly because of the English-language press release (‘Advocate General Szpunar proposes that the Court should limit the scope of the de-referencing that search engine operators are required to carry out to the EU‘) and because of the actual text of the Opinion hitherto being available in French only, general reporting has been almost unequivocally (note Michèle Finck’s 10th Tweet in an early thread on the Opinion as a cautious exception), that the AG suggests that the RTBF is limited to EU soil only.

Except, he does not.

The Conseil d’Etat has referred one or two specific Qs but also, just to be sure, has also asked the Court of Justice for general insight into how data protection laws apply to the internet.

The AG of course departs from the core objective of the data protection Directive and now the GDPR, and Google Spain, and points out that the CJEU has put the protection of the fundamental rights of the data subject at the centre. At 46 he summarises his view before justifying it:

‘in my opinion one should distinguish according to the place in which the search is carried out. Searches carried out outside the EU ought not to be made subject to delisting’. (My translation from the French).

Geo-blocking can be ordered and ensures that within the EU territory, no Google extension may be used to access the information at issue (at 64 ff) after duly having balanced the right of freedom of information against the right to be forgotten.

Turning to his arguments, the AG points out at 47 ff first of all – briefly: see e.g. Belgian case-law on Facebook for more extensive discussion –  that public international law defines the borders of the EU and its Member States. The AG sees no reason (48-49) exceptionally to extend the scope of application beyond that border in the case of the Directive or the GDPR.

(51-52) Other examples of ‘extraterritoriality’ do not sway him, such as the Trademark Directive or EU competition law. He argues that in these cases the Internal Market is impacted and EU law applies to these situations ex-EU only because the Internal Market is a finite, territorial unit. The internet is not (at 53: Le marché intérieur est un territoire clairement délimité par les traités. En revanche, l’internet est, par nature, mondial et, d’une certaine manière, est présent partout. Il est donc difficile de faire des analogies et des comparaisons).

Note that references to other instances of ‘extraterritoriality’ (or not) could have been made: such as the cases surrounding animal welfare (Zuchtvieh), cosmetics, or the EU’s emissions trading scheme.

The AG also briefly discusses ‘extraterritorial’ protection of rights under the ECHR, but distinguishes the EU Charter from same. (On the topic of the ‘extraterritorial’ impact of the EU’s human rights obligations, see excellently Lorand Bartels here).

At 60-61 the AG argues (paras which have been more or less literally translated in the Press release) that if worldwide de-referencing were permitted, the EU authorities would not be able to define and determine a right to receive information, let alone balance it against the other fundamental rights to data protection and to privacy. This, the AG argues, is all the more so since ‘the right of the public to access such information’ (un tel intérêt du public à accéder à une information; this word string bizarrely translated in the press release as ‘such a publication’) will necessarily vary from one third State to another depending on its geographic location. There would be a risk, the AG suggests, that if worldwide de-referencing were possible, persons in third States would be prevented from accessing information and, in turn, that third States would prevent persons in the EU Member States from accessing information. This might in turn lead to a race to the bottom in the right to access of information.

This is an important point, because it essentially encapsulates a core argument made by Google: that particularly in the US, the constitutional right to free speech and the corollary of the freedom to receive information, gazumps a right to be forgotten – putting Google in the event of worldwide delisting orders between SCOTUS’ rock and CJEU’s hard place.

Crucially however at 62 the AG then in my view perhaps not quite torpedoes but certainly seriously softens his overall general analysis by suggesting that his views on territoriality are the default position only, which may be varied should specific instances of the balancing act of fundamental rights, so require: it’s just that the specific circumstances of the case do not.

Les enjeux en cause n’exigent donc pas que les dispositions de la directive 95/46 soient d’application au-delà du territoire de l’Union. Cela ne signifie pas pour autant que le droit de l’Union ne saurait jamais imposer à un exploitant de moteur de recherche tel que Google qu’il entreprenne des actions au niveau mondial. Je n’exclus pas qu’il puisse y avoir des situations dans lesquelles l’intérêt de l’Union exige une application des dispositions de la directive 95/46 au-delà du territoire de l’Union. Mais dans une situation telle que celle de la présente affaire, il n’y a pas de raison d’appliquer les dispositions de la directive 95/46 d’une telle manière.

The circumstances of the case do not justify worldwide blocking. Yet other circumstances might. This is a crucial section for the French data protection authority’s (CNIL) decision at issue, 2016/054 [thank you again to the Dutch Ministry of Foreign Affairs for providing the factual background to the case; also note that in the French decision Google’s name, amusingly, is anonymised] is a general CNIL instruction to Google to carry out global delisting in instances where natural persons request removal; not a case-specific one. In other words the ‘circumstances of the case’ concern a generic, not a factual balancing.

In yet other words: there could be many instances where national data protection authorities might find worldwide delisting to be the only proper means to balance the various fundamental rights at stake. The AG Opinion offers little to no support that such worldwide delisting in concrete cases were to infringe the Directive /the GDPR. Such balancing act would be akin to X v Google LLC at the Tribunal de grande instance de Paris on which I reported last week.

Note that in his Opinion of the same day in C-136/17, the AG Opines that the default response of search engine providers must be to honour requests for delisting, and to only exceptionally not do so.

Some issues for the Grand Chamber to chew on. And then some more.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.8.2, Heading 2.2.8.2.5.

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SAS Institute v World Programming. Ordre Public, res judicata, fraus and (European) statute conspire against enforcement.

SAS Institute Inc v World Programming Limited [2018] EWHC 3452 (Comm) is a rare example of refusal by an English court of enforcement of a US judgment. 20 Essex Street have excellent analysis here and I am happy generally to refer.

The outcome of English Proceedings was that WPL defeated SAS’ claims regarding software licence and copyright infringements, with an important role played by the European software Directive as applied by the CJEU in Case C-406/10 upon preliminary reference in the very case.

Meanwhile SAS had commenced concurrent proceedings in the US. WPL initially objected to the US Proceedings on forum non conveniens and other jurisdictional grounds. These objections were later withdrawn and WPL submitted to the jurisdiction of the US District Court and participated in the process before it. Judgment was awarded against it. SAS curtailed its claim of enforcement to as to increase chances of success: it only seeks to enforce the US Judgment in England insofar as it is for compensatory damages based on WPL’s fraud (an issue which was litigated in the US but not in the UK); it does not seek to enforce the breach of contract claim or that part of the US Judgment which awarded multiple damages.

At 35-36 Cockerill J summarises the law: ‘There are three strands of potential preclusion: cause of action estoppel (not live here) issue estoppel and Henderson v Henderson abuse of process. As Lord Sumption observed in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] UKSC 46[2014] AC 160 at p.180H at [17]:

“…the policy underlying all of the…[res judicata] principles…” is “…the more general procedural rule against abusive proceedings…”.

The different doctrines therefore have different requirements, but they shoot at the same target – that of ensuring that nobody should be vexed twice in respect of one and the same cause: “nemo debet bis vexari pro una et eadem causa“: as it was put by Lord Diplock in Vervaeke v Smith [1983] AC 145 at p.160A-B, G. A more modern version was given by Lord Bingham in Johnson v Gore Wood [2002] 2 AC 1 at p.31A-B in the context of the Henderson doctrine:

Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole.” ‘

Issue estoppel per Dicey (referred to by Cockerill J) at paragraph 14-156 means that a “foreign judgment will not be recognised if it is inconsistent with a previous decision of a competent English court in proceedings between the same parties“. Akin therefore in residual English private international law (EU law is not engaged, the judgment having been issued ex-EU) to Brussels I Recast’s Article 45(1)c ‘s rule.

The fundamental point is that issue estoppel bars relitigation not of all issues, but only of issues determined as an essential part of the cause of action (at 40). The Henderson principle is concerned with protecting the integrity of the cause of action and issue estoppel defences and preventing them from being deliberately or inadvertently circumvented by a party which did not advance an argument in England which would otherwise have created such an estoppel (at 47).

This is the core of the abuse investigation and this formulated one can see why it is a difficult test to apply.

At 55: ‘There are two issues: was the Fraud claim “parasitic” on the breach of contract claim and the related question of whether the Fraud claim was a separate, distinct and independent cause of action. Both of these really go to the question of whether there is sufficient identity of issue.’ At 73 Cockerill J concludes that there was such abuse: ‘Ultimately, I have come to the conclusion that the existence of the terms of the contract was a fundamental building block for the Fraud Claim and that without it that claim – as it was formulated in the US – could not have been run. The essence of the case in the US Proceedings related to alleged fraudulent representations concerning its “present intention to comply with those terms”. It was fundamental to the claim that WPL “had no intention of abiding by those terms“. It was inherent in that case that those terms did exist; and yet the courts of this country had already held that those terms did not exist.’

Obiter, at 156 ff, Cockerill J adds that enforcement would also have been refused for reasons of the public policy embodied in the Software Directive. Authority in the arbitration context was referred to to pro inspiratio, including CJEU authority C-168/05 Mostaza Claro and C-126/97 Eco Swiss (at 163). At 179: ‘The fundamental problem for SAS is that the Directive plainly envisages the rendering null and void of provisions such as those on which SAS wants to rely, indeed that is explicitly the policy enunciated in the case-law and yet SAS’s fraud case is dependent upon those terms’ existence. The effect of the Directive is, as I have indicated above, to make SAS’s fraud claim (as formulated) impossible to express. It is therefore unrealistic to analyse the matter as the Directive “authorising frauds“.’ And at 184: ‘It is clear that the Software Directive gives expression to two important public policy objectives of preventing the monopolisation of ideas and promoting competition and consumer welfare.’

A very lengthy judgment which merits full reading.

Geert.

 

 

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Request for consultations under the Trade and Sustainable Devlopment chapter of the EU-Korea FTA.

Update 16 January 2019 the first such trigger was quickly followed by a second: the EU have requested consultations with Ukraine over the country’s ban on the export of unprocessed woods.

This is a short posting for completeness and filing purposes. The EU have requested consultations with South Korea under the Trade and Sustainable Development chapter of the EU-Korea FTA. Labour rights are at the heart of the request. The request is a first trigger of the ‘Trade and’ consultations chapters under recent EU FTAs. I am not in a position to say more at this stage.

Geert.

 

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Menon CJ of Singapore’s Supreme Court on cross-border insolvency.

Many thanks to Filbert Lam for alerting me to Menon CJ’s most exquisite 2018 speech on cross-border insolvency law. His honour’s talk addresses forum shopping (including for cram down reasons), the Model Law, a most enlightening comparison between international commercial arbitration (particularly: the New York Convention’s role) and insolvency, and of course modified universalism (on which see also this recent post by Bob Wessels, with ia analysis of the EU position). A delightfully sharp observation of key elements of international insolvency practice and policy.

Geert.

(Handbook of) EU Private International Law, 2nd edition 2016, Chapter 5.

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Kalma v African Minerals. Vicarious liability for human rights abuses at the hands of Sierra Leone police.

[2018] EWHC 3506 (QB) Kalma v African Minerals et al was held by the High Court on 19 December 2018. It essentially entails vicarious liability of UK-incorpored companies (jurisdiction firmly settled therefore) for human rights abuses committed by Sierra Leone police (SLP), who ensured security at the defendants’ mine. All claims were held to have failed. The judgment is lengthy and very factual, please refer to same.

Matrix have brief analysis here, critical reception of the judgment is inter alia here. The case does not raise the kind of jurisdictional or applicable law issues which trigger interest of this blog (such as yesterday’s post on Nevsun Resources). Nevertheless discussion of the factual involvement of the companies with SLP activities, required to establish vicarious liability, has echoes of the discussion on the level of oversight required for mother companies to be held liable for subsidiaries’ actions (such as e.g, in Apartheid or in various CSR cases making their way through UK courts).

Of additional note:

  • Turner J’s discussion at 61 ff headed ‘keeping things in proportion’: the difficulty of a judge;s task, particularly at 63: ‘I make no complaint about the volume of written material which has been provided for my assistance. I have read all of it carefully. Both sides have been extremely well served by the industry and thoroughness of their respective legal teams. Inevitably, however, and for the sake of proportionality, I have had to leave a very considerable number of these points on the cutting room floor. This does not mean that I have failed to consider them or that I have discarded them as being entirely redundant but merely that the inclusion of their analysis or resolution in an already lengthy judgment would not have a material impact on the determination of the central issues.’ Less can be more.
  • At 84: irrelevance of CSR discussions: ‘Both sides were very enthusiastic about the idea of setting the parameters of their evidence and submissions to cover broad issues concerning the general level of social responsibility displayed by the defendant – upon which topic they predictably entertained very different views. This, however, I have not permitted. The consequences of the exploration of such issues would have been entirely disproportionate, in terms both of time and costs, to the limited value of resolving them. For the same reason, I do not propose to adjudicate upon the rights and wrongs of the community and employment disputes which lay behind the incidents to which they gave rise.’

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 8, Heading 8.3.

 

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Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al. Some of the unanswered Kiobel and Jesner Bank issues now at the Canadian Supreme Court.

Plenty of goings-on in the Corporate Social Responsibility /mass torts category, as regular readers of the blog and /or my Twitter-feed will know. Thank you Jutta Brunnée for alerting us to Nevsun Resources v Gize Ybeyo et al, currently making its way through the Canadian Supreme Court. Thank you also Cory Wanless for pointing out the core of the issue: Nevsun are not contesting jurisdiction (its existence is secure; much like in the EU context) e.g. on forum non conveniens grounds. Rather, the Supreme Court is asked whether there should be a new tort of breach of international law, and whether the “act of state” doctrine prevents adjudication.

The first question undoubtedly will lead to a discussion of similar issues raised in Kiobel, where they were not discussed by the USSC, and in Jesner Bank, where the USCC refused to be the dealmaker on public international law. The second issue is likely to imply consideration of the very foreign poicy considerations which featured heavily in circuit considerations prior to Kiobel.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 8, Heading 8.3.

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Heller v Uber at the Ontario Court of Appeal: arbitration clause requiring arbitration in the Netherlands of disputes between drivers and Uber invalid.

Thank you Christopher Burkett for alerting me to Heller v. Uber Technologies Inc., 2019 ONCA 1.  The case is reminiscent of California’s Senate Bill 1241 (review here) and of an article that I co-authored with Jutta Gangsted [‘Protected parties in European and American conflict of laws: a comparative analysis of individual employment contracts]. The starting point of the California, the EU rules, and the Canadian judgment is the same: employees cannot be considered to really consent to either choice of law or choice of court /dispute resolution hence any clause doing same will be subject to mandatory limitations.

Here, an arbitration clause requiring arbitration in the Netherlands of disputes between drivers and Uber was held to be invalid and unenforceable, because it deprives an employee of the benefit of making a complaint to the Ministry of Labour under relevant Ontarian law.

Of note is that the judgment applies assuming the contract is one of employment – which remains to be determined under Ontarian law. Of note is also that the Court of appeal rejected Uber’s position that the validity is an issue for the arbitrator to determine because it is an issue going to the jurisdiction of the arbitrator. Uber invoked the “competence-competence” /kompetenz kompetenz principle in support of its position.

Geert.

(Handbook of) European Private international law, 2nd ed. 2016. Chapter 2, Heading 2.2.8.3, Chapter 3, Heading 3.2.5.

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