In Google v Agencia Española de Protección de Datos, the Spanish High Court (Audiencia Nacional) has asked assistance with a number of essential questions under the EU’s flagship Directive on the protection of personal data, Directive 95/46. The case is relevant not just for the particular context of the data protection Directive: it generally addresses the million dollar question of ‘location’ in an internet context.
Mario Costeja González had requested Google to remove from its search results, an advertisement which had appeared in print, relating to the sale of property as a result of a former (and meanwhile resolved) debt. Google refused. Complaints to the Spanish data protection agency led i.a. to the question whether Spain at all has jurisdiction over the subsidiary, or whether California is the only acceptable forum, the Spanish subsidiary not trading in and of its own right, but rather providing collected data to its mother company.
Article 4 of the Directive is the crucial provision. It effectively links applicable law to jurisdiction (putting the horse before the cart, one could say):
National law applicable
1. Each Member State shall apply the national provisions it adopts pursuant to this Directive to the processing of personal data where:
(a) the processing is carried out in the context of the activities of an establishment of the controller on the territory of the Member State; when the same controller is established on the territory of several Member States, he must take the necessary measures to ensure that each of these establishments complies with the obligations laid down by the national law applicable;
(b) the controller is not established on the Member State’s territory, but in a place where its national law applies by virtue of international public law;
(c) the controller is not established on Community territory and, for purposes of processing personal data makes use of equipment, automated or otherwise, situated on the territory of the said Member State, unless such equipment is used only for purposes of transit through the territory of the Community.
2. In the circumstances referred to in paragraph 1 (c), the controller must designate a representative established in the territory of that Member State, without prejudice to legal actions which could be initiated against the controller himself.
Whence ‘carried out in the context of the activities of an establishment of the controller on the territory of the Member State‘
‘makes use of equipment (…) , situated on the territory of the said Member State‘
are the crucial connecting factors. It led the High Court to the following questions (I have only selected those with a specific conflicts relevance):
With regard to the territorial application of Directive 95/46/EC and, consequently, of the Spanish data-protection legislation:
1.1. must it be considered that an ‘establishment’, within the meaning of Article 4(1)(a) of Directive 95/46/EC, exists when any one or more of the following circumstances arise:
– when the undertaking providing the search engine sets up in a Member State an office or subsidiary for the purpose of promoting and selling advertising space on the search engine, which orientates its activity towards the inhabitants of that State,
– when the parent company designates a subsidiary located in that Member State as its representative and controller for two specific filing systems which relate to the data of customers who have contracted for advertising with that undertaking,
– when the office or subsidiary established in a Member State forwards to the parent company, located outside the European Union, requests and requirements addressed to it both by data subjects and by the authorities with responsibility for ensuring observation of the right to data protection, even where such collaboration is engaged in voluntarily?
1.2. Must Article 4(1)(c) of Directive 95/46/EC be interpreted as meaning that there is ‘use of equipment … situated on the territory of that Member State’
when a search engine uses crawlers or robots to locate and index information contained in web pages located on servers in that Member State
when it uses a domain name pertaining to a Member State and arranges for searches and the results thereof to be based on the language of that Member State?
1.3. Is it possible to regard as a use of equipment, in the terms of Article 4(1)(c) of Directive 95/46/EC, the temporary storage of the information indexed by internet search engines? If the answer to that question is affirmative, can it be considered that that connecting factor is present when the undertaking refuses to disclose the place where it stores those indexes, invoking reasons of competition?
1.4. Regardless of the answers to the foregoing questions and particularly in the event that the Court of Justice of the European Union considers that the connecting factors referred to in Article 4 of the Directive are not present:
must Directive 95/46/EC on data protection be applied, in the light of Article 8 of the European Charter of Fundamental Rights, in the Member State where the centre of gravity of the conflict is located and more effective protection of the rights of European Union citizens is possible?
The references to the Charter and to ‘centre of gravity’ (in the questions) and to public international law (in the Directive) make this review particularly tantalising. Let’s see which questions the Court will be happy to pick off and chew over.