As announced on the blog earlier, JÄÄSKINEN AG has opined this morning in Case C-131/12 Google Spain. The Opinion covers a lot of issues in relatively condensed space – one of these Opinions where you should not trust the summary of a blogger, for invariably the blog posting does not do justice to all issues addressed. Below my highlights on the basis of diagonal reading: for I find this too important an Opinion not to flag it immediately.
As summarised by the AG, according to Article 4(1) of the Directive, the primary factor that gives rise to the territorial applicability of the national data protection legislation is the processing of personal data carried out in the context of the activities of an establishment of the controller on the territory of the Member State. Further, when a controller is not established on EU territory but uses means or equipment situated on the territory of the Member State for processing of personal data, the legislation of that Member State applies unless such equipment or means is used only for purposes of transit through the territory of the EU. The territorial scope of application of the Directive and the national implementing legislation is triggered therefore either by the location of the establishment of the controller, or the location of the means or equipment being used when the controller is established outside the EEA. Nationality or place of habitual residence of data subjects is not decisive, nor is the physical location of the personal data – at least not in the current versions of the Directive. The AG points out that in future legislation relevant targeting of individuals could be taken into account in relation to controllers not established in the EU. Such an approach, attaching the territorial applicability of EU legislation to the targeted public, is consistent with the Court’s case-law on the applicability of the e-commerce Directive 2000/31, the Brussels I (‘jurisdiction’) Regulation and Directive 2001/29, the on copyright and related rights in the information society to cross-border situations. Again, though, it is not a criterion in the current version of the data protection Directive, with respect to providers established outside of the EU.
The AG turns to the business model of a company to assist him in establishing applicability of the Directive for the case at issue, where Google (domiciled in California) does have establishments in the EU (the establishment of the controller therefore being the trigger), as well as at least two known data centres:
‘Google Inc. is a Californian firm with subsidiaries in various EU Member States. Its European operations are to a certain extent coordinated by its Irish subsidiary. It currently has data centres at least in Belgium and Finland. Information on the exact geographical location of the functions relating to its search engine is not made public. Google claims that no processing of personal data relating to its search engine takes place in Spain. Google Spain acts as commercial representative of Google for its advertising functions. In this capacity is has taken responsibility for the processing of personal data relating to its Spanish advertising customers. Google denies that its search engine performs any operations on the host servers of the source web pages, or that it collects information by means of cookies of non registered users of its search engine.’ (at 62).
‘In my opinion the Court should approach the question of territorial applicability from the perspective of the business model of internet search engine service providers. This, as I have mentioned, normally relies on keyword advertising which is the source of income and, as such, the economic raison d’être for the provision of a free information location tool in the form of a search engine. The entity in charge of keyword advertising (called ‘referencing service provider’ in the Court’s case-law) is linked to the internet search engine. This entity needs presence on national advertising markets. For this reason Google has established subsidiaries in many Member States which clearly constitute establishments within the meaning of Article 4(1)(a) of the Directive. It also provides national web domains such as google.es or google.fi. The activity of the search engine takes this national diversification into account in various ways relating to the display of the search results because the normal financing model of keyword advertising follows the pay-per-click principle.’ (…) ‘In conclusion, processing of personal data takes place within the context of a controller’s establishment if that establishment acts as the bridge for the referencing service to the advertising market of that Member State, even if the technical data processing operations are situated in other Member States or third countries.’ (…)
‘For this reason, I propose that the Court should answer the first group of preliminary questions in the sense that processing of personal data is carried out in the context of the activities of an ‘establishment’ of the controller within the meaning of Article 4(1)(a) of the Directive when the undertaking providing the search engine sets up in a Member State for the purpose of promoting and selling advertising space on the search engine, an office or subsidiary which orientates its activity towards the inhabitants of that State.’ [footnotes omitted]
The AG uses the terms ‘targeted at’ [cf in this respect ‘intended target of information’ in Football Dataco] and ‘oriented at’ – not, as had become custom, ‘directed at’: presumably to emphasise the contrast with the other Directives mentioned above.
The AG then turns his attention inter alia to the alleged ‘right to be forgotten’: not one, he suggests, which exists under the current Directive, not even when read in conjunction with the Charter on Fundamental Rights and Freedoms (the EU’s version of the Human Rights Act). That surely is an important observation.
Much to chew on – not quite all digested above, however I do hope these first impressions may act as an appetizer for discussion elsewhere.