Google and the jurisdictional reach of the Belgian DPA in right to be forgotten cases. Another piece misplaced in the puzzle?

Thank you Nathalie Smuha for first signalling the €600,000.00 fine which the Belgian Data Protection Authority (DPA) issued on Tuesday against Google Belgium, together with a delisting order of uncertain reach (see below) and an order to amend the public’s complaint forms. The decision will eventually be back up here I am assume (at vanished yesterday) however I have copy here.

Nauta Dutilh’s Peter Craddock and Vincent Wellens have very good summary and analysis up already, and I am happy to refer. Let me add a few things of additional note:

  • The one-stop shop principle of the GDPR must now be under severe strain. CNIL v Google already put it to the test and this Belgian decision further questions its operationalisation – without even without for the CJEU to answer the questions of the Brussels Court of Appeal in the Facebook case. At 31, the DPA refers to a letter which Google LLC had sent on 23 June 2020 (a few days therefore after the French decision) to the Irish DPA saying that it would no longer object to national DPAs exercising jurisdiction in right to be forgotten cases. Of note is that in ordinary litigation, deep-pocket claimants seeking mozaik jurisdiction seldom do that because it serves the general interest.
  • Having said that, the Belgian DPA still had to establish jurisdiction against Google Belgium. Here, CJEU Google v Spain, Google v CNIL, and Wirtschaftsakademie led the DPA to take a ‘realistic’ /business plan approach (such as Jääskinen AG in Google Spain) rather than a legally pure approach: at 80 following extensive reference to CJEU authority, and to the effet utile of the GDPR, the DPA holds that it matters little whether the actual processing of the date takes places outside of the EU, by Google employees ex-EU, and that Google Belgium’s activities are supportive only. A Belgian resident’s right to be forgotten has been infringed; a Google entity is available there: that would seem to suffice.
  • That left the issue of the territorial reach of the delisting request. The DPA arguably cuts a few corners on the Google Belgium issue; here, it is simply most vague: at 81 ff it refers to the jurisdictional decision in e-Date Advertising, that for infringement of privacy within Brussels Ia, the courts of the person’s centre of interests are best placed to hear the case in its entirety, holding this should be applied mutatis mutandis in GDPR cases and removal orders. It then holds at 85 that neither Google v CNIL nor Belgian law give it specific power to impose a worldwide delisting order, yet at 91 that an EU-wide delisting order would seem an effective means of redress, to end up in its final order (p.48-49) not identifying a territorial scope for delisting.

I am confused. I suspect I am not the only one.

Geert.

(Handbook of) EU private international law, 2nd ed.2016, chapter 2, Heading 2.2.8.2.5.

 

The GDPR’s one stop shop principle put to the test in French Supreme Court confirmation of CNIL jurisdiction over Google Android case. The Court also rebukes the spaghetti bowl of consent ticking and unticking.

Thank you Gaetan Goldberg for flagging that the French Supreme Court has confimed on 19 June last, jurisdiction of the French Data Protection Agency (‘DpA’), CNIL for issuing its fine (as well as confirming the fine itself) imposed on Google for the abuse of data obtained from Android users. The Court was invited to submit preliminary references to the CJEU on the one-stop shop principle of  the GPDR, but declined to do so.

Readers of the blog know that my interest in the GDPR lies in the jurisdictional issues – I trust date protection lawyers will have more to say on the judgment.

With respect to the one stop shop principle (see in particular A56 GDPR) the Court held at 5 ff that Google do not have a ‘main establishment’ in the EU at least not at the time of the fine complained of, given that the Irish Google office (the only candidate for being the ‘main establishment) at least at that time did not have effective control over the use and destination of the data that were being transferred – US Google offices pulling the strings on that decision. A call by the CNIL under the relevant EU procedure did not make any of the other DPAs come forward as wanting to co-ordinate the action.

On the issue of consent the SC referred to CJEU Cc-673/17 Planet49 and effectively held that the spaghetti bowl of consent, ticking and unticking of boxes which an Android user has to perform to link a Google account to Android and hence unlock crucial features of Android, do not amount to consent or proper compliance with GDPR requirements.

Geert.

A reminder: Austrian courts apply CJEU Eva Glawischnig-Piesczek v Facebook ruling. Limits removal to national territory only but does not rule out worldwide removal on principle.

I had already reported in March on the first application of the CJEU C-18/18 Eva Glawischnig-Piesczek v Facebook ruling in an update to my post on the latter. I thought I’ld add a separate post on the ruling for it, well, deserves it: the court held that orders based on Austrian copyright are limited to Austria (given copyright’s territorial limitations), but if they are based on personal rights, the claimant has to specify the requested territorial reach (so potentially global).

IPKat have further analysis here. As one or two of us discussed at the time of the CJEU ruling: the infringement of personality rights angle is an important one.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.8.2, Heading 2.2.8.2.5.

Lloyd v Google. Court of Appeal overturns High Court, establishes jurisdiction viz US defendant. Takes a wider approach to loss of control over personal (browser-generated information) data constituting ‘damage’.

Update 16 July 2020 the Supreme Court has granted leave to appeal.

I reported earlier on Lloyd v Google at the High Court. The case involves Google’s alleged unlawful and clandestine tracking of iPhone users in 2011 and 2012 without their consent through the use of third party cookies.

The Court of Appeal in [2019] EWCA Civ 1599 has now overturned the High Court’s approach, nota bene just a day before the CJEU’s Eva Glawischnig-Piesczek v Facebook judgment.

Warby J in  [2018] EWHC 2599 (QB) Lloyd v Google (a class action suit with third party financing) had rejected jurisdiction against Google Inc (domiciled in the US) following careful consideration (and distinction) of the Vidal Hall (‘Safari users) precedent. In essence, Warby J held 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”. This did not mean that misuse of personal data could not 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.

The Court of Appeal has now overturned. A first question it considered was whether control over data is an asset that has value. Sir Geoffrey Vos C at 47 held ‘a person’s control over data or over their BGI (browser-generated information, GAVC) does have a value, so that the loss of that control must also have a value’. Sir Geoffrey did not even have to resort to metanalysis to support this:  at 46: ‘The underlying reality of this case is that Google was able to sell BGI collected from numerous individuals to advertisers who wished to target them with their advertising. That confirms that such data, and consent to its use, has an economic value.’ And at 57: ‘the EU law principles of equivalence and effectiveness (‘effet utile’, GAVC) point to the same approach being adopted to the legal definition of damage in the two torts which both derive from a common European right to privacy.’

(The remainder of the judgment concerns issues of reflection of damage on the class).

Conclusion: permission granted to serve the proceedings on Google outside the jurisdiction of the court.

All in all an important few days for digital media corporations.

Geert.

 

Steady now. Eva Glawischnig-Piesczek v Facebook. The CJEU on jurisdiction and removal of hate speech.

Update 12 November 2020 the court in the Glawischnig case has now reportedly ordered worldwide removal.

Update 5 May 2020 see the report of the first application of the criteria by the Austrian courts on 30 March 2020 here: the court held that orders based on Austrian copyright are limited to Austria, but if they are based on personal rights, the claimant has to specify the requested territorial reach (so potentially global).

My interest in C-18/18 Eva Glawischnig-Piesczek v Facebook as I noted in my short first review of the case, concerns mostly the territorial reach of any measures taken by data protection authorities against hosting providers. The Court held last week and o boy did it provoke a lot of comment.

The case to a large degree illustrates the relationship between secondary and primary law, and the art of reading EU secondary law. Here: Article 15 of the e-commerce Directive 2001/31 which limits what can be imposed upon a provider; and the recitals of the Directive which seem to leave more leeway to the Member States. Scant harmonisation of tort law in the EU does not assist the Institutions in their attempts to impose a co-ordinated approach.

The crucial issue in the case was whether Article 15 prohibits the imposition on a hosting provider (Facebook, in this case) of an obligation to remove not only notified illegal content, but also identical and similar content, at a national or worldwide level? The Court held the Directive does not as such preclude such order, and that as to the worldwide injunctive issue, EU law has not harmonised and that it is up to the Member States to direct in any such orders in compliance with public international law.

The judgment to a large degree concerns statutory interpretation on filtering content, which Daphne Keller has already reviewed pre the judgment succinctly here, Dan Svantesson post the judgment here, as did Lorna Woods, and a frenzied Twitter on the day of the judgment e.g. in this thread. A most balanced analysis is provided by Andrej Savin here. e-Commerce law is not the focus of this blog, neither my professed area of expertise (choices, choices). I do want to emphasise though

  • that as always it pays to bear in mind the CJEU’s judicial economy. Here: the need to interpret its judgment in line with the circumstances of the case. As Steve Peers noted, the Austrian court had ruled that the post was defamatory, which is a recognised basis for limiting freedom of expression; see also at 40: ‘In that regard, it should be made clear that the illegality of the content of information does not in itself stem from the use of certain terms combined in a certain way, but from the fact that the message conveyed by that content is held to be illegal, when, as in the present case, it concerns defamatory statements made against a specific person.‘ Nota bene, the same need to read the judgment in context goes for the earlier Google v CNIL case, applying Directive 95/46 and the GDPR, which I review here.
  • that speaking strictly as a member of the public who has seen the devastating effect of ‘social’ media on people close to me, the technical discussions on filtering (‘what filter does the CJEU think might possibly ever be available to FB to remove content in the way the Court wishes’) are emphatically beside the point. The public justifiably are not interested in the how. A service is offered which clearly has negative effects on EU citisens. Remedy those effects, or remove the service from those citisens. That is true for the negative impacts of goods (in 25 years of regulatory Bar practice I have seen plenty of that). There is no reason it should be any less true for services.

The jurisdictional issues are what interest me more from the blog’s point of view: the territorial scope of any removal or filtering obligation. In Google viz the GDPR and the data protection Directive, the Court confirmed my reading, against that of most others’, of Szpunar AG’s Opinion. EU law does not harmonise the worldwide removal issue. Reasons of personal indemnification may argue in specific circumstances for universal jurisdiction and ditto reach of injunctive relief on ‘right to be forgotten’ issues. Public international law and EU primary law are the ultimate benchmark (Google V CNIL). It is little surprise the Court held similarly in Eva Glawischnig-Piesczek, even if unlike in Google, it did not flag the arguments that might speak against such order. As I noted in my review of Google, for the GDPR and the data protection Directive, it is not entirely clear whether the Court suggests EU secondary law simply did not address extraterritoriality or decided against it. For the e-commerce Directive in Eva Glawischnig-Piesczek the Court notes at 50-52

Directive 2000/31 does not preclude those injunction measures from producing effects worldwide. However, it is apparent from recitals 58 and 60 of that directive that, in view of the global dimension of electronic commerce, the EU legislature considered it necessary to ensure that EU rules in that area are consistent with the rules applicable at international level.  It is up to Member States to ensure that the measures which they adopt and which produce effects worldwide take due account of those rules.

In conclusion, Member States may order a host provider to remove information covered by the injunction or to block access to that information worldwide within the framework of the relevant international law. To my knowledge, the Brussels Court of Appeal is the only national court so far to consider public international law extensively viz the issue of jurisdiction, and decided against it, nota bene in a case against Facebook Inc.

Any suggestion that the floodgates are open underestimates the sophisticated engagement of national courts with public international law.

In general, the CJEU’s approach is very much aligned with the US (SCOTUS in particular) judicial approach in similar extraterritoriality issues (sanctions law; export controls; ATS;…). There is no madness to the CJEU’s approach. Incomplete: sure (see deference to national courts and the clear lack of EU law-making up its legislative mind on the issues). Challenging and work in progress: undoubtedly. But far from mad.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.8.2, Heading 2.2.8.2.5.

Proposition Walhalla. ‘The algorithms of the law must keep pace with new and emerging technologies.’

Update 18 August 2020 the judgment was overturned upon appeal and a breach of Article 8 ECHR found: [2020] EWCA Civ 1058 Bridges, R (On the Application Of) v South Wales Police. reviewed here.

Update 17 January 2020 the European Commission reportedly has a different view and is preparing a proposal to ban this use temporarily.

‘The algorithms of the law must keep pace with new and emerging technologies’ is the opening sentence of Hadon-Cave LJ and Swift J in R v The Chief Constable of South Wales Police and others [2019] EWHC 2341.

The central issue is whether the current legal regime in the United Kingdom is adequate to ensure the appropriate and non-arbitrary use of AFR (automated face recognition) in a free and civilized society. The High Court finds it is. No doubt appeal will follow. I leave the assessment of the findings (discussing in particular Article 8 ECHR: right to respect for one’s private and family life, one’s home and one’s correspondence) of the Court to others. It is the opening sentence which drew my attention as, inevitably, it did others’. It is a sentence upon which one can hinge en entire regulatory /new technologies course. Must the algorithms of the law (whatever these may be) keep pace with technology?  Or rather, guard against the challenges of same?

Discuss.

Geert.

Court of Justice in Google v CNIL sees no objection in principle to EU ‘Right to be forgotten’ leading to worldwide delisting orders. Holds that as EU law stands, however, it is limited to EU-wide application, leaves the door open to national authorities holding otherwise.

Many commentators were wrong-footed on reading Advocate-General Szpunar’s Opinion in C-505/17 Google Inc v Commission nationale de l’informatique et des libertés (CNIL), concerning the territorial limits to right to have search results delisted, more popularly referred to as ‘the right to erasure’ or the ‘right to be forgotten’ (‘RTBF’ – a product of the CJEU in Google Spain). Far from ruling out ‘extraterritorial’ or worldwide force of the right, the AG saw no objection to it in principle, even if he suggested non-application to the case at issue (he did so again in his Opinion in C-18/18 Eva Glawischnig-Piesczek v Facebook, which I review here and on which judgment is forthcoming next week).

The Court yesterday held (the Twitter storm it created was later somewhat drowned by the UK Supreme Court’s decision in the prorogation case) and overall confirmed the AG’s views. As with the AG’s Opinion, it is important to read the Judgment for what it actually says, not just how the headlines saw it. For immediate analysis, readers may also want to read Daphne Keller’s and Michèle Finck’s threads and Dan Svantesson’s impromptu assessment.

It is again important to point out that the French data protection authority’s (CNIL) decision at issue, 2016/054 is a general CNIL instruction to Google to carry out global delisting in instances where natural persons request removal; not a case-specific one. 

I have a case-note on the case and on C-137/17 (judgment also yesterday) forthcoming with Yuliya Miadzvetskaya, but here are my initial thoughts on what I think is of particular note.

1. The Court of Justice (in Grand Chamber) first of all, unusually, examines the questions in the light of both Directive 95/46, applicable to the facts at issue, and the GDPR Regulation ‘in order to ensure that its answers will be of use to the referring court in any event’ (at 41).

2. Next, at 52, the Court dismisses a fanciful distributive approach towards the computing reality of data processing:

Google’s establishment in French territory carries on, inter alia, commercial and advertising activities, which are inextricably linked to the processing of personal data carried out for the purposes of operating the search engine concerned, and, second, that that search engine must, in view of, inter alia, the existence of gateways between its various national versions, be regarded as carrying out a single act of personal data processing. The referring court considers that (and the CJEU clearly agrees, GAVC), in those circumstances, that act of processing is carried out within the framework of Google’s establishment in French territory.

3. At 55, the Court points out that de-referencing carried out on all the versions of a search engine would meet the objective of data protection in full, particularly (at 56) given the fact that ‘(t)he internet is a global network without borders and search engines render the information and links contained in a list of results displayed following a search conducted on the basis of an individual’s name ubiquitous (the Court restating here its finding in both Google Spain and Bolagsupplysningen). 

At 58 the Court employs that finding of ubiquitousness to ‘justify the existence of a competence on the part of the EU legislature to lay down the obligation, for a search engine operator, to carry out, when granting a request for de-referencing made by such a person, a de-referencing on all the versions of its search engine.’ No grand statements on public international law’s views on adjudicative extraterritoriality /universality. Just a simple observation.

The Court subsequently however (at 59-60) notes other States’ absence of a right to de-referencing and their different views on the balancing act between privacy and freedom of speech in particular. At 61-62 it then notes

While the EU legislature has, in Article 17(3)(a) of Regulation 2016/679, struck a balance between that right and that freedom so far as the Union is concerned (see, to that effect, today’s judgment, GC and Others (De-referencing of sensitive data), C‑136/17, paragraph 59), it must be found that, by contrast, it has not, to date, struck such a balance as regards the scope of a de-referencing outside the Union.

In particular, it is in no way apparent from the wording of Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 or Article 17 of Regulation 2016/679 that the EU legislature would, for the purposes of ensuring that the objective referred to in paragraph 54 above is met, have chosen to confer a scope on the rights enshrined in those provisions which would go beyond the territory of the Member States and that it would have intended to impose on an operator which, like Google, falls within the scope of that directive or that regulation a de-referencing obligation which also concerns the national versions of its search engine that do not correspond to the Member States.

In other words the Court has adopted the same approach as the United States Supreme Court has done in Morrison v. National Australia Bank; and Kiobel: there is a presumption against extraterritoriality, however it is not excluded. In the absence of indications of the legislator wish to extend the right to delisting extraterritorially it does not so exist in the current state of the law.

4. At 63 the Court hints at what might be required as part of such future potential extraterritorial extension: EU law does not currently provide for cooperation instruments and mechanisms as regards the scope of a de-referencing outside the Union – in contrast with the regime it has intra-EU. This also hints at the CJEU taking a more multilateral approach to the issue than its SCOTUS counterpart.

5. At 69 the Court then adds that intra-EU, a delisting order covering all of the search engine’s EU extensions is both possible and may be appropriate: co-operation between authorities may lead to ‘where appropriate, a de-referencing decision which covers all searches conducted from the territory of the Union on the basis of that data subject’s name.’

6. A final twist then follows at 72:

Lastly, it should be emphasised that, while, as noted in paragraph 64 above, EU law does not currently require that the de-referencing granted concern all versions of the search engine in question, it also does not prohibit such a practice. Accordingly, a supervisory or judicial authority of a Member State remains competent to weigh up, in the light of national standards of protection of fundamental rights (references to CJEU authority omitted, GAVC), a data subject’s right to privacy and the protection of personal data concerning him or her, on the one hand, and the right to freedom of information, on the other, and, after weighing those rights against each other, to order, where appropriate, the operator of that search engine to carry out a de-referencing concerning all versions of that search engine.

Here I do not follow the Court: one could argue that the harmonised EU’s approach is currently not to extend the right to delisting extraterritorially. The Court on the other hand seems to be suggesting that the extraterritoriality issue was not discussed in the Directive or Regulation, that EU law does not occupy (‘pre-empt’) that regulatory space and consequently leaves it up to the Member States to regulate that right. (Update 27 September 2019: Other interpretations are collated here).

I shall need more detailed reading of the GDPR’s preparatory works to form a view as to whether the extraterritorial element was considered, and rejected, or simply not discussed. However I also want to already point out that if the decision is left to the Member States, the case-law and theory of pre-emption clarifies that such national action has to be taken in full compatibility with EU law. including free movement of services, say, which Google may rightfully invoke should there be a disproportionate impact on the Internal Market.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.8.2, Heading 2.2.8.2.5.

Brussels Court of Appeal rejects jurisdiction against Facebook Inc, Facebook Ireland in privacy, data protection case.

Update 10 September 2020 the case at the CJEU is listed as C-645/19.

The Brussels Court of Appeal held early May in a lengthy and scholarly judgment that it sees no ground in either public international law, or European law, for jurisdiction of the Belgian courts against Facebook Ireland and Facebook Inc (Palo Alto, California). I reported on the litigation inter alia here. I believe the Court is right, as readers of the blog know from my earlier postings.

Belgium’s Data Protection Authority (DPA) does not signal the rejection of jurisdiction against FB Ireland and FB Inc in its press release, however even its 3 page extract from the 121 page judgment clearly shows it (first bullet-point).

The questions which the Court of Appeal has sent up to Luxembourg concern Facebook Belgium only. The Court in the full judgment does not qualify FB Belgium’s activities as data processing. However it has very specific questions on the existence and extent of powers for DPAs other than the leading authority under the GDPR, including the question whether there is any relevance to the fact that action has started prior to the entry into force of the GDPR (25 May 2018). The Court is minded to interpret the one-stop shop principle extensively however it has doubt given the CJEU’s judgment in Fanpages

Crucial and so far, I believe, fairly unreported. (My delay explained by the possibility for use as an essay exam question – which eventually I have not).

Geert.

(Handbook of) EU private international law, 2nd ed.2016, chapter 2, Heading 2.2.8.2.5.

The internet’s not written in pencil, it’s written in ink. Szpunar AG in Eva Glawischnig-Piesczek v Facebook, re i.a. jurisdiction and removal of hate speech. (As well as confirming my reading of his Opinion in Google).

Case C-18/18 Eva Glawischnig-Piesczek v Facebook as I noted in my short first review of the case, revolves around Article 15 of the E-Commerce Directive. Does Article 15 prohibit the imposition on a hosting provider (Facebook, in this case) of an obligation to remove not only notified illegal content, but also identical and similar content, at a national or worldwide level?

Szpunar AG in his Opinion kicks off with a memorable Erica Albright quote from The Social Network:  The internet’s not written in pencil, [Mark], it’s written in ink’. 

His Opinion to a large degree concerns statutory interpretation on filtering content, which Daphne Keller has already reviewed succinctly here and which is not the focus of this blog. The jurisdictional issues are what interest me more: the territorial scope of any removal obligation.

Firstly, Szpunar AG matter of factly confirms my reading, against that of most others’, of his Opinion in C-505/17 Google: at 79:

‘in my Opinion in that case I did not exclude the possibility that there might be situations in which the interest of the Union requires the application of the provisions of that directive beyond the territory of the European Union.’

Injunctions (ordering removal) are necessarily based on substantive considerations of national law (in the absence of EU harmonisation of defamation law); which law applies is subject to national, residual conflicts rules (in the absence of EU harmonisation at the applicable law, level, too): at 78. Consequently, a Court’s finding of illegality (because of its defamatory nature) of information posted may well have been different had the case been heard by a court in another Member State. What is however harmonised at the EU level, is the jurisdiction for the civil and commercial damage following from defamation: see e-Date, in particular its centre of interests rule which leads to an all-encompassing, universal’ jurisdiction for the damages resulting from the defamation.

Separate from that is the consideration of the territorial extent of the removal obligation. Here, the AG kicks off his analysis at 88 ff by clearly laying out the limits of existing EU harmonisation: the GDPR and data protection Directive harmonise issues of personal data /privacy: not what claimant relies on. Directive 2000/31 does not regulate the territorial effects of injunctions addressed to information society service providers. Next, it is difficult, in the absence of regulation by the Union with respect to harm to private life and personality rights, to justify the territorial effects of an injunction by relying on the protection of fundamental rights guaranteed in Articles 1, 7 and 8 of the Charter: the scope of the Charter follows the scope of EU law and not vice versa. In the present case, as regards its substance, the applicant’s action is not based on EU law. Finally, Brussels Ia does not regulate the extra-EU effects of injunctions.

In conclusion therefore EU law does not regulate the question of extraterritorial reach in casu.

For the sake of completeness, the AG does offer at 94 ff ‘a few additional observations’ as regards the removal of information disseminated worldwide via a social network platform. At 96 he refers to the CJEU’s judgment in Bolagsupplysningen which might implicitly have acknowledged universal jurisdiction, to conclude at 100 (references omitted)

the court of a Member State may, in theory, adjudicate on the removal worldwide of information disseminated via the internet. However, owing to the differences between, on the one hand, national laws and, on the other, the protection of the private life and personality rights provided for in those laws, and in order to respect the widely recognised fundamental rights, such a court must, rather, adopt an approach of self-limitation. Therefore, in the interest of international comity…, that court should, as far as possible, limit the extraterritorial effects of its junctions concerning harm to private life and personality rights. The implementation of a removal obligation should not go beyond what is necessary to achieve the protection of the injured person. Thus, instead of removing the content, that court might, in an appropriate case, order that access to that information be disabled with the help of geo-blocking.

There are very sound and extensive references to scholarship in the footnotes to the Opinion, including papers on the public /private international law divide and the shifting nature of same (the Brussels Court of Appeal recently in the Facebook case justifiably found jurisdictional grounds in neither public nor private international law, to discipline Facebook Ireland and Facebook Inc for its datr-cookies placed on Belgian users of FB).

I find the AG’s Opinion convincing and complete even in its conciseness. One can analyse the jurisdictional issues until the cows come home. However, in reality reasons of personal indemnification may argue in specific circumstances for universal jurisdiction and ditto reach of injunctive relief. However these bump both into the substantial trade-off which needs to be made between different fundamental rights (interest in having freedom removed v freedom of information), and good old principles of comitas gentium aka comity. That is not unlike the US judicial approach in similar issues.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.8.2, Heading 2.2.8.2.5.

Eva Glawischnig-Piesczek v Facebook. Hate speech at the CJEU.

In Case C-18/18, Eva Glawischnig-Piesczek v Facebook, the Austrian Supreme Court has referred a ‘hate speech’ case to Luxembourg – hearing will be tomorrow, 12 February. The Case revolves around Article 15 of the E-Commerce Directive: one sentence Twitter summary comes courtesy of Tito Rendas: does Article 15 prohibit the imposition on a hosting provider (Facebook, in this case) of an obligation to remove not only notified illegal content, but also identical and similar content, at a national or worldwide level?

Mirko Brüß has more extensive analysis here. I used the case in my class with American University (my students will be at the hearing tomorrow), to illustrate the relationship between secondary and primary law, but also the art in reading EU secondary law (here: A15 which limits what can be imposed upon a provider; and the recitals of the Directive which seem to leave more leeway to the Member States; particularly in the light of the scant harmonisation of tort law in the EU). To readers of the blog the case is probably more relevant in light of the questions on territorial scope: if a duty to remove may be imposed, how wide may the order reach? It is in this respect that the case is reminiscent of the Google etc. cases.

Yet another one to look out for.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.8.2, Heading 2.2.8.2.5.