Posts Tagged Internet

Lloyd v Google. High Court rejects jurisdiction viz US defendant, interprets ‘damage’ in the context of data protection narrowly.

Warby J in  [2018] EWHC 2599 (QB) Lloyd v Google (a class action suit with third party financing) considers, and rejects, jurisdiction against Google Inc (domiciled in the US) following careful consideration (and distinction) of the Vidal Hall (‘Safari users) precedent.

Of note is that the jurisdictional gateway used is the one in tort, which requires among others an indication of damage. In Vidal Hall, Warby J emphasises, that damage consisted of specific material loss or emotional harm which claimants had detailed in confidential court findings (all related to Google’s former Safari turnaround, which enabled Google to set the DoubleClick Ad cookie on a device, without the user’s knowledge or consent, immediately, whenever the user visited a website that contained DoubleClick Ad content.

In essence, Warby J suggests that both EU law (reference is made to CJEU precedent under Directive 90/314) and national law tends to suggest that “damage” has been extended in various contexts to cover “non-material damage” but only on the proviso that “genuine quantifiable damage has occurred”.

Wrapping up, at 74: “Not everything that happens to a person without their prior consent causes significant or any distress. Not all such events are even objectionable, or unwelcome. Some people enjoy a surprise party. Not everybody objects to every non-consensual disclosure or use of private information about them. Lasting relationships can be formed on the basis of contact first made via a phone number disclosed by a mutual friend, without asking first. Some are quite happy to have their personal information collected online, and to receive advertising or marketing or other information as a result. Others are indifferent. Neither category suffers from “loss of control” in the same way as someone who objects to such use of their information, and neither in my judgment suffers any, or any material, diminution in the value of their right to control the use of their information. Both classes would have consented if asked. In short, the question of whether or not damage has been sustained by an individual as a result of the non-consensual use of personal data about them must depend on the facts of the case. The bare facts pleaded in this case, which are in no way individualised, do not in my judgment assert any case of harm to the value of any claimant’s right of autonomy that amounts to “damage”…”

The judgment does not mean that misuse of personal data cannot be disciplined under data protection laws (typically: by the data protection authorities) or other relevant national courses of action. But where it entails a non-EU domiciled party, and the jurisdictional gateway of ‘tort’ is to be followed, ‘damage’ has to be shown.

Geert.

 

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Li Shengwu, Singapore: Serving out of jurisdiction in contempt of court cases.

Many thanks to Filbert Lam, a former student of mine, for alerting me to another interesting case in comparative conflict of laws: the story of Li Shengwu is recalled here.

The Singapore Prime Minister’s nephew made remarks in a Facebook post, which were allegedly contemptuous of the judiciary. When he made those remarks, he was located in the US, where he intends to stay (and work). The Attorney-General’s Chambers (AGC) wants to serve the summons on him in the US. Under what circumstances can this be done and what is the impact of a procedural law seemingly assisting the AGC in serving the summons, but which would have to be applied retroactively in the case at issue?

The Court of Appeal proceeding will be one to look out for.

Geert.

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On soggy grounds. The GDPR and jurisdiction for infringement of privacy.

Many thanks to Julien Juret for asking me contribute to l’Observateur de Bruxelles, the review of the French Bar representation in Brussels (la Délégation des barreaux de France). I wrote this piece on the rather problematic implications of the GDPR, the General Data Protection Regulation, on jurisdictional grounds for invasion of privacy.

I conclude that the Commission’s introduction of Article 79 GDPR without much debate or justification, will lead to a patchwork of fora for infringement of personality rights. Not only will it take a while to settle the many complex issues which arise in their precise application. Their very existence arguably will distract from harmonised compliance of the GDPR rules.

I owe Julien and his colleagues the French translation (as well as their patience in my late delivery) for I wrote the piece initially in English. Readers who would like to receive a copy of that EN original, please just send me an e-mail. (Or try here, which if it works should have both the FR and the EN version).

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.8.2.5.

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Jurisdiction for libel over the internet. Haaretz v Goldhar at the Canadian SC.

When I reported the first salvos in Goldhar v Haaretz I flagged that the follow-up to the case would provide for good comparative conflicts materials. I have summarised the facts in that original article. The Ontario Court of Appeal in majority dismissed Haaretz’ appeal in 2016, 2016 ONCA 515. In Haaretz.com v. Goldhar, 2018 SCC 28, the Canadian Supreme Court has now held in majority for a stay on forum non conveniens grounds. Both the lead opinion, the supporting opinions and the dissents include interesting arguments on forum non conveniens. Many of these, as Stephen Pitel notes, include analysis of the relevance of obstacles in enforcement proceedings.

If ever I were to get round to compiling that published reader on comparative conflicts, this case would certainly feature.

Have a good start to the working-week (lest it started yesterday in which case: bonne continuation).

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.14.5.

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Handing over. ‘Joint control’ in Fansites.

Choices, choices. I will continue to follow the GDPR for jurisdictional purposes, including territorial scope. (And I have a paper coming up on conflict of laws issues in the private enforcement of same). But for much of the GDPR enforcement debate, I am handing over to others. Johannes Marosi, for instance, who reviews the CJEU judgment this week in Fansites, over at Verfassungsblog. I reviewed the AG’s Opinion here.

Judgment in Grand Chamber but with small room for cheering.

As Johannes’ post explains, there are many loose ends in the judgment, and little reference to the GDPR (technically correct but from a compliance point of view wanting). (As an aside: have a look at Merlin Gömann’s paper, in CMLREv, on the territorial scope of the GDPR).

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.8.2.5.

 

 

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The High Court on the right to be forgotten. Precise terms of delisting order to be finalised.

In  [2018] 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.

Geert.

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Clutching at jurisdictional straws as short as hotpants. Suing Google for hotlinkers: High Court refuses service out of jurisdiction in Wheat v Alphabet /Google Inc and Monaco Telecom.

Hotlinking is explained at para 17 of [2018] EWHC 550 (Ch) Wheat v Alphabet /Google Inc and Monaco Telecom. (Cross-reference is also made to the related main case against Monaco Telecom, [2017] EWHC 3150 (Ch)). The principal claim against Monaco Telecom is that it has broadcast, and continues to broadcast, an unauthorised duplicate of theirearth.com – claimant’s website. Google is involved in the litigation because claimant alleges that Google’s search engine algorithm has done little to address hotlinking practice, which, it is said, facilitates copyright infringement.

Both cases are a good example of the standards for serving out of jurisdiction, essentially, to what degree courts of the UK should accept jurisdiction against non-UK defendants (here: with claimants resident in the UK). The Brussels I Recast Regulation is not engaged in either cases for neither Monaco nor Alphabet are EU based.

Copyright aficionados are best referred to the judgment to appreciate its impact. The judgment essentially confirms that other than in a B2C context (particularly where EU law applies and privacy is involved), suing (for tort) Google or indeed internet companies not headquartered here, is not an easy proposition.

Geert.

 

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