Posts Tagged Data protection Directive
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):