GDPR (General Data Protection Regulation) aficionados will have already seen the draft guidelines published by the EDPB – the European data protection board – on the territorial scope of the Regulation.
Of particular interest to conflicts lawyers is the Heading on the application of the ‘targeting’ criterion of GDPR’s Article 3(2). There are clear overlaps here between Brussels I, Rome I, and the GDPR and indeed the EDPB refers to relevant case-law in the ‘directed at’ criterion in Brussels and Rome.
(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 184.108.40.206.3, Heading 220.127.116.11.5.
I have an ever-updated post on Google’s efforts to pinpoint the exact territorial dimension of the EU’s data protection regime, GDPR etc. Now, Facebook are reportedly (see also here) appealing a fine imposed by the UK’s data protection authority in the wake of the Cambridge Analytica scandal. Facebook’s point at least as reported is that the breach did not impact UK users.
The issue I am sure exposes Facebook in the immediate term to PR challenges. However in the longer term it highlights the need to clarify the proper territorial reach of both data protection laws and their enforcement.
One to look out for.
In  EWHC 799 (QB) the High Court granted one and refused another delisting request, otherwise known as the ‘right to be forgotten’ (rtbf or RTBF) following the CJEU’s judgment in Google Spain.
Of interest to data protection lawyers is Warby J’s excellent review of the test to be applied (particularly within the common law context of misuse of private information). Of interest to readers of this blog, is what is not yet part of the High Court’s ruling: the precise wording of the delisting order. Particularly: defendant is Google LLC, a US-based company. Will the eventual delisting order in the one case in which it was granted, include worldwide wording? For our discussion of relevant case-law worldwide, see here.
In  NIQB 81 Townsend v Google Inc. & Anor the Northern Ireland High Court refused service our of jurisdiction in relation to a request for Google (UK and Inc.) to de-list a number of urls relating to reports on sexual and other criminal offences committed by plaintiff.
Plaintiff seeks an injunction inter alia requiring the defendants and each of them to withdraw and remove personal data relating to the plaintiff, making reference to or tending to reveal sexual offences committed by the plaintiff while a child, from their data processing and indexing systems and to prevent access to such personal data in the future. The Court references ia Vidal-Hall and Google Spain. I will leave readers to digest the ruling largely for themselves for there is a lot in there: consideration of Article 8 ECHR; Directive 95/46; aforementioned precedent; tort law etc.
Of particular note is Stephens J’s finding at 61 that ‘(t)here is a clear public interest in open justice. There is a clear right to freedom of expression. In such circumstances the processing was not unwarranted and that there is no triable issue in relation to any allegation that Google Inc. has not satisfied this condition.’
A judgment to add to the growing pile of internet, jurisdiction and balancing of interests in privacy considerations.
Update 8 November 2017 thank you Dan Svantesson for alerting me to Google seeking preliminary injuntive relief against the order’s enforement in the US. relief which, update 5 February 2018, was granted.
Thank you Stephen Pittel for alerting me to 2017 SCC 34 Google Inc. v Equustek Solutions Inc. – alternative review ia here, and apologies for my late reporting: the case came to my attention late June. I have of course posted before on various aspects of worldwide removal and other orders, particularly in the context of the EU’s ‘right to be forgotten’.
Equustek sued Datalink for various intellectual property violations and found alleged insufficient co-operation from Google in making it difficult for users to come across Datalink’s offerings. Google seemingly did not resist jurisdiction, but did resist the injunction and any ex-Canada effect of same.
The majority in the case however essentially applied an effet utile consideration: if as it found it did, it has in personam jurisdiction over defendant, an extraterritorial reach is not problematic if that is the only way to make the order effective. An order limited to searches or websites in Canada would not have addressed the harm: see Stephen’s verbatim comment (referring to para 38 of the judgment). Google was ordered to de-index globally.
Dissenting opinions suggested Datalink could be sued in France, too, however this I suppose does not address the effet utile consideration of the majority.
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.