Posts Tagged rtbf

One of those groundhog days. The Brussels Court of First instance on Facebook, privacy, Belgium and jurisdiction.

I have flagged once or twice that the blog is a touch behind on reporting – I hope to be on top soon.

I blogged a little while ago that the Brussels Court of Appeal had sided with Facebook in their appeal against the Court of first instance’s finding of Belgian jurisdiction. I had earlier argued that the latter was wrong. These earlier skirmishes were in interim proceedings. Then, in February, the Court of First instance, unsurprisingly, reinstated its earlier finding, this time with a bit more substantial flesh to the bone.

First, a bit of Belgian surrealism. In an interlocutory ruling the court had requested FB to produce full copy of the Court of Appeal’s judgment upon which it relied for some of its arguments. Perhaps given the appalling state of reporting of Belgian case-law, this finding should not surprise. Yet it remains an absurd notion that parties should produce copies at all of Belgian judgments, not in the least copies of a Court of Appeal which is literally one floor up from the Court of first instance.

Now to the judgment. The court first of all confirms that the case does not relate to private international law for the privacy commission acts iure imperii (I summarise). Then follows a very lengthy and exhaustive analysis of Belgium’s jurisdiction on the basis of public international law. Particularly given the excellent input of a number of my public international law colleagues, this part of the judgment is academically interesting nay exciting – but also entirely superfluous. For any Belgian jurisdiction grounded in public international law surely is now exhausted regulated by European law, Directive 95/46 in particular.

In finally reviewing the application of that Directive, and inevitably of course with reference to Weltimmo etc. the Court essentially assesses whether Facebook Belgium (the jurisdictional anchor) carries out activities beyond mere representation vis-a-vis the EU institutions, and finds that it does carry out commercial activities directed at Belgian users. That of course is a factual finding which requires au faitness which the employees’ activities.

Judgment is being appealed by Facebook – rightly so I believe. Of note is also that once the GDPR applies, exclusive Irish jurisdiction is clear.

Geert.

 

 

 

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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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Extraterritorial application of warrants: Our amicus curiae brief in the Microsoft Ireland case.

Update 3 April 2018 Recently, the so-called “CLOUD Act” was passed by Congress and signed into law.  This new law amends the Stored Communications Act to give it a potentially extraterritorial reach.  Following this development, the U.S. Government has moved to have the Microsoft case dismissed as moot, and to have the Second Circuit’s decision vacated. [Technically, Congress has enacted, and the President has signed,
the Consolidated Appropriations Act, 2018, H.R. 1625, 115th Cong., 2d Sess. (2018). Division V of that Act is called the Clarifying Lawful Overseas Use of Data Act, or the CLOUD Act. TheCLOUD Act amends the Stored Communications Act, 18 U.S.C. 2701-2712, by adding 18 U.S.C. 2713, which now states:
A provider of electronic communication service or remote computing service shall
comply with the obligations of this chapter to preserve, backup, or disclose the contents
of a wire or electronic communication and any record or other information pertaining to a customer or subscriber within such provider’s possession, custody, or control, regardless of whether such communication, record, or other information is located within or outside of the United States.]

For background to the Microsoft  Ireland case under the Stored Communications Act (SCA), see here. The issue is essentially whether the US Justice Department may force Microsoft to grant access to e-mails stored on Irish servers.

With a group of EU data protection and conflicts lawyers, we have filed an amicus curiae brief in the case at the United States Supreme Court last week, arguing that the Court should interpret the SCA to apply only to data stored within the United States, leaving to Congress the decision whether and under what circumstances to authorize the collection of data stored in other countries.

There is not much point in me rehashing the arguments here: happy reading.

Geert.

 

 

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Right to be forgotten v Right to know. In Townsend v Google Inc and Google UK the Northern Irish High Court emphasises public interest in open justice.

In [2017] 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.

Geert.

 

 

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Google v Equustek: Google ordered to de-index globally.

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.

Geert.

 

 

 

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‘Right to be forgotten’ /data protection laws and the internet referred to CJEU.

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. Update 1 February 2018 for a recent English case see [2018] EWHC 137 (QB) ABC v Google. Order to block access was denied for no permisison to serve out of jurisdiction had been sought (Google been 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.

Geert.

 

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The Brussels Court of Appeal is spot on on Facebook, privacy, Belgium and jurisdiction.

The Brussels Court of Appeal has sided with Facebook  on 29 June. This post I am going to keep very, very simple: told you so. Geert.

 

 

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