Posts Tagged ABC v Google
Territoriality and delisting. Google score (cautious) French points ahead of Thursday’s AG Opinion in CJEU case.
X v Google LLC at the Tribunal de grande instance de Paris on 14 November 2018 is a good warm-up, forwarded to me (for which many thanks) by Jef Ausloos (I have copy for those interested). The case concerns an article in Le Monde linking a French resident, active in international hotel management, to a Moroccan enquiry into pedophilia. The court’s review of the facts suggests an unsubstantiated link between X and the case – yet the damage to claimant’s reputation evidently is done nevertheless. Claimant requests delinking not just for searches performed in France on all Google extensions, but rather for all searches performed globally.
The court first of all observes that for searches performed in France, delisting of many of the identified urls has already happened – and orders on the basis of French law (which it applies, it suggests, per the GDPR) Google LLC to carry out delisting for the others in as far as searches are carried out from French territory. X’s privacy is given priority over freedom of expression and Google LLC’s US domicile is not mentioned as being relevant (no verbatim discussion of same is recorded in the judgment. X’s French nationality and domicile however, are, hence presumably it is the infamous Article 14 Code Civil which is at play here). Google’s argument that the as listed urls link to articles in languages other than French and relating to facts taking place outside of France is dismissed as irrelevant.
Claimant however had requested global delisting, regardless of the user’s geographical location. That, the court holds, is a request it cannot grant. Its refusal is justified in one sentence only: a global delisting order would be disproportionate in the case of a French national and resident, simply because his employment record is international:
‘une telle mesure apparaît ici disproportionnée, s’agissant d’un résident français, le seul caractère international de ces démarches d’emploi ne pouvant justifier d’une telle restriction, qui conduirait in fine à soumettre le réseau internet à une injonction de portée globale.’
The judgment therefore does not tackle the conceptual issues surrounding jurisdiction (which the Belgian courts, for instance, have been tempted into in the Facebook case), neither does it rule out global injunctions in cases which have more than just a fleeting international element.
Update 19 November 2018 Michèle Finck has excellent reporting on the hearing before the CJEU here.
Update May 2018 our paper on global case-law re RTBF is here.
Update 23 May 2017 the Case is C-136/17 and the relevant dossier (partially in Dutch) is here, on the unparalleled website of the Dutch foreign ministry. A related case is C-505/17. Update 1 February 2018 for a recent English case see  EWHC 137 (QB) ABC v Google. Order to block access was denied for no permisison to serve out of jurisdiction had been sought (Google being incorporated in Delaware).
Many thanks to KU Leuven law student Dzsenifer Orosz (she is writing a paper on the issues for one of my conflict of laws courses) for alerting me to the French Conseil D’Etat having referred ‘right to be forgotten’ issues to the European Court of Justice. I have of course on occasion reported the application of data protection laws /privacy issues on this blog (try ‘Google’ as a search on the blog’s search function). I also have a paper out on the case against applying the right to be forgotten to the .com domain, and with co-authors, one where we catalogue the application of RTBF until December 2016. See also my post on the Koln courts refusing application to .com.
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 Court is unlikely to offer such tutorial (not that it would not be useful). However any Advocate General’s opinion of course will offer 360 insight.
One to look forward to.