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Migration of European Judicial Ideas Concerning Jurisdiction Over Google on Withdrawal of Information

  • Krystyna Kowalik-Bańczyk and Oreste Pollicino

Abstract

Google's position in the information market has caused interesting legal developments insofar as its obligations are concerned. On various grounds, courts worldwide have begun to impose injunctions on Google that require the company to withdraw the search results—in fact, information sources—that its search engines provide. This article looks at this recent phenomenon of imposing obligations on Google to withdraw some information through the lens of judicial dialogue. In particular, we analyze the “inspiring” role of the Court of Justice of the European Union (CJEU) in its Google Spain judgment. This case represents a clear migration of some ideas that might be perceived as universal. Some courts outside of Europe—such as Canada—are gaining “inspiration” from the CJEU's Google Spain judgment in order to reinforce their own decisions. The legitimacy and techniques of this process are also discussed in this article.

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1 See Case C-131/12, Google Spain v. Agencia Española de Protección de Dato (May 13, 2014), http://curia/europa.eu/ [hereinafter Google Spain].; see also Eleni Frantziou, Further Developments in the Right to be Forgotten: The European Court of Justice's Judgment in Case C-131/12, Google Spain, SL, Google Inc. v. Agencia Espanola de Proteccion de Datos, 14 Hum. Rts. L. Rev. 761 (2014); John W. Kropf, Google Spain SL v. Agencia Española de Protección de Datos (AEPD), Case C-131/12, 108 Am. J. of Int‘l L. 502, 502509 (2014); see also Jonathan Zittrain, Is the EU Compelling Google to Become About.me?, Harv. L. Blogs (May 13, 2014), http://blogs.law.harvard.edu/futureoftheinternet/2014/05/13/is-the-eu-compelling-google-to-become-about-me/ (providing comments on the case); Steeve Peers, The CJEU's Google Spain Judgment: Failing to Balance Privacy and Freedom of Expression, EU L. Analysis (May 13, 2014), http://eulawanalysis.blogspot.co.uk/2014/05/the-cjeus-google-spain-judgment-failing.html; Paul Bernal, Opinion: Google Privacy Ruling Could Change How We All Use the Internet, CNN Int‘l (May 14, 2014), http://edition.cnn.com/2014/05/13/business/opinion-google-privacy-bernal/index.html.

2 Google is a publicly traded company incorporated in Delaware, USA. Its head office is located in Mountain View, California, and its Internet search services are operated in that facility. Internet users are not restricted to using the website dedicated to their particular country.

3 On the responsibilities of search engines as user data controllers as of 2008, cf. Opinion 1/2008 on Data Protection Issues Related to Search Engines, Data Protection Working Party (2015).

4 Analytics Without the Bots: Desktop Search Engine Market Share in April 2016, NetMarketShare (Apr. 2016), https://www.netmarketshare.com/search-engine-market-share.aspx?qprid=4&qpcustomd=0.

5 The dominance itself is not illegal; it is the abuse of this dominance that is questioned. See Adi Ayal, Fairness in Antitrust: Protecting the Strong from the Weak (2014) (providing a critical analysis of the issue). The author's point is illustrated by the pending antitrust proceeding against Google, led by the European Commission since 2010, where the European Commission is still negotiating commitments. Cf. Joaquín Almunia, European Commission Press Release on Statement on the Google Investigation, Eur. Comm'n (Feb. 5, 2014), http://europa.eu/rapid/press-release_SPEECH-14-93_en.htm.

6 See Smale, Alison, In Germany, Strong Words Over Google's Power, N.Y. Times (Apr. 16, 2014), http://www.nytimes.com/2014/04/17/business/international/in-germany-strong-words-over-googles-power.html?_r=0.; Mathias Döpfner, An Open Letter to Eric Schmidt: Why we fear Google, Frankfurter AllgemeineZeitung (Sept. 11, 2014), http://www.faz.net/aktuell/feuilleton/debatten/mathias-doepfner-s-open-letter-to-eric-schmidt-12900860.html.

7 Roberts, See Jeff, Canadian Court Forces Google to Remove Search Results Worldwide, as Fears of “Memory Hole” Grow, Gigaom (July 25, 2014), https://gigaom.com/2014/07/25/canadian-court-forces-google-to-remove-search-results-worldwide-as-fears-of-memory-hole-grow/.

8 See Pollicino, Oreste & Bassini, Marco, Reconciling Right to be Forgotten and Freedom of Information in the Digital Age: Past and Future of Personal Data Protection in the European Union, 2 Diritto Pubblico Comparator italiano ed europeo 641 (2014); See also Neelie Kroes, Press Release, Freedom of Expression is No Laughing Matter: Media Freedom in the Internet Age, Euro. Comm'n (Sept. 2, 2014), http://europa.eu/rapid/press-release_SPEECH-14-575_en.htm.

9 The Court makes this very clear in points 57 and 58 of the reasons for the judgment of the Supreme Court of British Columbia, Equustek Solutions Inc. v. Jack, [2014] B.C.S.C. 1063 (Can.) [hereinafter Equustek].

10 See Oreste Pollicino & Marco Bassini, The Interaction between Europe‘s Legal Systems: Judicial Dialogue and the Creation of Supranational Laws (2012); see Ricardo Lorenzetti, Global Governance: Dialogue Between Courts, 3 Eur. Univ. Inst. 1 (2010); Francis G. Jacobs, Judicial Dialogue and the Cross-Fertilization of Legal Systems: The European Court of Justice, 38 Tex. Int‘l L.J. 547–56 (2003).

11 Interestingly, the ECtHR has not accepted this right, see cf. Węgrzynowski and Smolczewski v. Poland, App. No 33846/07 (Oct. 16, 2013), http://hudoc.echr.coe.int/.

12 See generally Equustek, B.C. S.C. 1063.

13 Equustek Solutions Inc. v. Google Inc., [2014] B.C.C.A. 295 (Can.) [hereinafter Equustek Solutions].

14 See Equustek, B.C.S.C. 1063 at para. 57–58; See also Equustek Solutions, B.C.C.A. 295 at para. 5.

15 See Equustek Solutions, B.C.C.A. 295 at para. 8.

16 This is distinct from “jurisdiction to prescribe,” which allows for creating laws for a certain territory. Cf. Opinion of Advocate General Darmon, Joined Cases C-89/85, C-104/85, C-114/85, C-116/85, C-117/85, C-125/85, C-126/85, C-127/85, C-128/85, C-129/85, Ahlström v Comm'n, 1994 E.C.R. I-00099, para. 28.

17 See Dieter G.E Lange & Sandage, John Byron, The Wood Pulp Decision and Its Implications for the Scope of EC Competition Law, 26 Common Mkt. L. Rev. 137, 139 (1989).

18 See Shaw, Malcolm N., Prawo międzynarodowe (International law) 351–60 (Książka i Wiedza ed., 2000).

19 See Moerel, Lokke, The long arm of EU data protection law: Does the Data Protection Directive apply to processing of personal data of EU citizens by websites worldwide? 28 (2010).

20 See Scott, Joanne, Extraterritoriality and Territorial Extension in EU Law, 62 Am. J. Comp. L. 87 (2014).

21 The pages contained two announcements in La Vanguardia concerning a real estate auction connected with attachment proceedings prompted by social security debts. Mr. González was mentioned as the owner of the property. At a later date, an electronic version of the newspaper was made available online by its publisher— there is no citation as it has been “forgotten.”

22 Directive 95/46 of the European Parliament and of the Council of 24 October 1995 on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data, 1995 O.J. (L 281) will be replaced by the Regulation 2016/679 of the European Parliament and of the Council of April 27, 2016 on the Protection of Natural Persons with Regard to the Processing of Personal Data and on the Free Movement of Such Data, 2016 O.J. (L 119). It shall apply from May 25, 2018.

23 Directive 95/46 of the European Parliament and of the Council of 24 October 1995, 1995 O.J. (L 281) has been the object of CJEU interpretations on various occasions, however, never on the issues of Internet search engines. Cf., Case C-101/01, Lindqvist, 2003 E.C.R. I-12971; Case C-195/06, ÖsterreichischerRundfunk, 2007 E.C.R. I-08817; Case C-73/07, SatakunnanMarkkinapörssi and Satamedia, 2008 E.C.R. I-09831; Joined Cases C-92/09, C-93/09, Volker und Markus Schecke & Eifert, 2010 E.C.R. I-11063. The question of Internet search engines did appear in cases on intellectual property rights and the jurisdiction of courts. See Joined Cases C-236/08, C-237/08, C238/08, Google France and Google, 2010 E.C.R. I-02417; Case C-558/08, Portakabin Ltd. and Portakabin BV v. Primakabin BV, 2010 E.C.R. I-06963; Case C-324/09, L'Oréal SA & Others v. eBay International AG & Others, 2011 E.C.R. I-06011; Case C-323/09, Interflora Inc. & Interflora British Unit v. Marks & Spencer Plc. and Flowers Direct Online Ltd., 2011 E.C.R. I-08625; Case C-523/10, Wintersteiger AG v. Products 4U Sondermaschinenbau GmbH (Apr. 19, 2012), http://curia.europa.eu/.

24 Bygrave, Lee Andrew, Data Privacy Law: An International Perspective 38 (2014).

25 Id. at 39.

26 Id. at 40.

27 Id.

28 O.E.C.D. Guidelines on the Protection of Privacy and Transborder Flows of Personal Data, OECD, http://www.oecd.org/sti/ieconomy/oecdguidelinesontheprotectionofprivacyandtransborderflowsofpersonaldata.htm (last visited June 7, 2013).

29 This expression replaced the previous “equivalency with domestic legislation,” as noted in Bygrave, supra note 24, at 48.

30 Id. at 63.

31 See supra note 3.

32 See Moerel, , supra note 19, at 29; Lokke Moerel, Back to basics: when does EU data protection law apply? 92–110 (2011).

33 Such a comparative and international approach is suggested by Graine de Búrca in cases where the CJEU acts as a constitutional adjudicator. Cf. Grainne De Búrca, After the EU Charter of Fundamental Rights: The Court of Justice as a Human Rights Adjudicator? 5 (N.Y.U., Working Paper No. 13-51, 2013), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2319175&rec=1&srcabs=2276433&alg=1&pos=3.

34 Kuner, Christopher, Transborder Data Flows and Data Privacy Law 123 (2013).

35 Scott, Joanne, The New EU “Extraterritoriality”, 51 Common Mkt. L. Rev. 1343, 1352 (2014).

36 See Google Spain, Case C-131/12 at para. 54–61.

37 See Google Spain, Case C-131/12 at para. 64.

38 A “controller” is defined in Directive 95/46 of the European Parliament and Council of Europe of 12 October 1995, art. 2(d), 1995 O.J. (L 281) as “the natural or legal person … which alone or jointly with others determines the purposes and means of the processing of personal data.” The CJEU found that an Internet search engine is a controller within the meaning of that provision. Cf. Google Spain, Case C-131/12 at para. 33.

39 Directive 95/46 of the European Parliament and of the Council of 24 October 1995 on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data, 1995 O.J. (L 281) preamble, para. 20.

40 See Google Spain, Case C-131/12 at para. 60.

41 See Google Spain, Case C-131/12 at para 45.

42 Bygrave, , supra note 24, at 191.

43 See Lindqvist, Case C-101/01 at para. 69:

If article 25 of Directive 95/46 were interpreted to mean that there is a transfer [of data] to third country every time that personal data are loaded onto an internet page, that transfer would necessarily be a transfer to all the third countries where thee are the technical means needed to access the internet. The special regime provided for by Chapter IV of the directive would thus necessarily become a regime of general application, as regards operations on the Internet.

44 Bygrave, , supra note 24, at 200–01 (listing other countries that possess rules modeled on DPD article 4, such as Austrialia's federal Privacy Act, US Children's Online Privacy Protection Act 1998, Malaysian Personal Data Protection Act of 2010).

45 This is a tactic called “bait and switch.”

46 See Equustek, 2014 B.C.S.C. 1063, at para. 72–73 (providing an explanation why this process was unsatisfactory). The Court referred to the decision of the Tribunal de Grande Instance GI Paris of November 6, 2013 in Max Mosely v. Google France SARL and Google Inc. This French criminal proceeding considered the following circumstances: The newspaper “News of the World” videotaped Mosely while he was engaging in sexual activity with several partners. The newspaper published the images and made others available on its website. The court found the newspaper guilty and ordered the newspaper to cease publishing the images, but the images remained widely available by searching through Google Images. Mosely asked Google to stop indexing those pictures with reference to specific URLs. Google honored all of Mosely's requests, but the images continued to be indexed and searchable through new URLs.

47 See generally Equustek Solutions, B.C.C.A. 295.

48 See Equustek Solutions, B.C.C.A. 295 at para. 9.

49 See Equustek Solutions, B.C. C.A. 295 at para. 9, 16.

50 Meehan, Kevin A., The Continuing Conundrum of International Internet Jurisdiction, 31 B.C. Int'l & Comp. L. Rev. 345, 349 (2008). See also Equustek, B.C.S.C. 1063 at para. 37.

51 See Equustek, B.C.S.C. 1063 at para. 48–50.

52 Google Spain, Case C-131/12 at para 56.

53 Equustek, B.C.S.C. 1063 at para. 64 (“I will address here Google's submission that this analysis would give every state in the world jurisdiction over Google's search services. That may be so. But if so, it flows as a natural consequence of Google doing business on a global scale, not from a flaw in the territorial competence analysis.”).

54 Equustek Solutions, B.C.C.A. 295 at para 7.

55 See Equustek Solutions, B.C.C.A. 295 at para. 3.

56 Scott, Joanne, supra note 35, at 1343–44.

57 See generally Forde, M., Non-Governmental Interferences with Human Rights, 56 Brit. Y.B. Int'l L. 253 (1985) (providing information of the evolution of this concept). Another question would be to the attribution of State responsibility to the actions of Google, but that issue is outside the scope of this paper.

58 See Campbell and Cosans v. UK, App. No. 7511/76 (Feb. 25, 1982), http://hudoc.echr.coe.int/.

59 Forde, , supra note 57, at 279.

60 Cariat, Nicolas, L'invocation de la Charte des droits Fondamentaux de l'Union Européenne dans les Litiges Horizontaux : état des lieux après l'arrêt Association de médiation sociale, 2 Cahiers de Droit Europeen 305, 305– 336 (2014).

61 See generally Loucaides, L.G., Personality and Privacy under the European Convention on Human Rights, 61 Brit. Y.B. Int'l L. 175 (1990) (providing more on privacy in the broader sense).

62 Google Spain, Case C-131/12 at para 84.

63 Id. at para 87.

64 Id. at para 88.

65 Id. at para 97.

66 Joined cases C-236/08 & C-238/08, Google France SARL and Google Inc. v. Louis Vuitton Malletier SA, 2010 E.C.R. I-2417, para. 107, http://curia.europa.eu/juris/document/document.jsf?text=&docid=83961&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=747648.

67 Case C-324/09, L'Oréal v. eBay Int'l, 2011 ECR I-6011.

68 Negroponte, Nicholas, Being digital 5 (1995). According to Negroponte's analysis the best way to appreciate the merits and consequences of being digital is to reflect on the difference between bits and atoms. More precisely he focuses on the economic, institutional and (indirectly) legal implications of the shift from materiality (world of atoms) to immateriality (world of bits).

69 See Yahoo! Inc. v. La Ligue Contre Le Racism et L'Antisemitisme, 169 F. Supp. 2d 1181, 1172 (N.D. Cal. 2001) [hereinafter Yahoo!]. In 2000, two French anti-racism groups filed suit in France against Yahoo!, alleging that Yahoo! had violated a French law prohibiting the display of Nazi paraphernalia by permitting users of its internet auction services to display and sell such artifacts. The plaintiffs demanded that Yahoo's French subsidiary, “Yahoo.fr,” remove all hyperlinks containing the offending content to the parent website, “Yahoo.com.” Like Google, Yahoo! argued that the French Court lacked jurisdiction over the matter because its servers were located in the United States. The French Court held that it could properly assert jurisdiction because the damage was suffered in France and required Yahoo! to “take all necessary measures” to “dissuade and render impossible” all access via “yahoo.com” by internet users in France to the Yahoo! Internet auction service displaying Nazi artifacts, as well as to block Internet users in France from accessing other online Nazi material. Yahoo! claimed that implementing the order would violate its First Amendment right to freedom of expression and that the judgment could not be enforced in the United States. The French Court did not accept that submission. Hence Yahoo! initiated a suit in California against the French plaintiffs and obtained a declaratory judgment that the French order was constitutionally unenforceable in the United States, because it was contrary to the First Amendment. Addressing the issue of international comity, the Court reasoned that United States courts will generally recognize and enforce foreign judgments but could not do so on the facts of the case before it because enforcement of the French orders would violate Yahoo!'s constitutional rights to free speech. See also Yahoo!, 169 F Supp 2d at 1192– 93. This decision was ultimately reversed on different grounds: See also Yahoo! Inc. v. La Ligue Contre Le Racisme Et L'Antisemitisme, 379 F.3d 1120 (9th Cir. 2004) and Yahoo! Inc. v. La Ligue Contre Le Racisme, 433 F.3d 1199 (9th Cir. 2006).

70 Equustek, B.C.S.C. 1063 at para. 143.

71 See Equustek, B.C. S.C. 1063 at para. 144.

72 Bygrave, , supra note 24, at 191.

73 We refer here to kinds of interaction which belong to the horizontal dimension of the judicial conversation and which generally are deprived of any binding character.

74 The same outcome emerges from analysis of the case of Digital Ireland, in which the CJEU declared Directive 2006/24 of the European Parliament and of the Council of 15 March 2006 on the Retention of Data Generated or Processed in Connection with the Provision of Publicly Available Electronic Communications Services or of Public Communications Networks and Amending Directive 2002/58/EC, 2006 O.J. (L 105) on the retention of data (for example, data retention) to be invalid because of its inconsistency with some provisions of the European Charter of Fundamental Rights. See Joined Cases C-293/12, C-594/12, Digital Rights Ireland Ltd v. Minister for Communications, Marine and Natural Resources (Apr. 8, 2014), http://curia.europa.eu/.

75 See Samuel Warren & Louis Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890).

76 See Oreste Pollicino, Internet Nella Giurisprudenza Delle Corti Europee: Prove Di Dialogo?, Forum di Quaderni Costituzionali (Dec. 31, 2013), http://www.forumcostituzionale.it/wordpress/images/stories/pdf/documenti_forum/paper/0454_pollicino.pdf (providing more detail).

77 Delfi v. Estonia, App. No. 64569/09 (Oct. 10, 2013), http://hudoc.echr.coe.int/.

78 See Skouris, Vassilios, Report of the Court of Justice: Changes and Activity 2 (2013).

79 Case C-617/10, Åklagaren v Hans Åkerberg Fransson, para. 48 (Feb. 26, 2013), http://curia.europa.eu/.

80 Proposal for a Regulation of the European Parliament and of the Council Concerning the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data (General Data Protection Regulation), Eur. Comm'n (Jan. 5, 2012), http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52012PC0011&from=en.

81 Digital Rights Ireland, C-293/12, C-594/12 at para 68.

82 This is not a new phenomenon. It was already noted at the time of drafting of 1980 OECD Guidelines on privacy. See Michael Kirby, The History, Achievement and Future of the 1980 OECD Guidelines on Privacy, 1 Int'l Data Privacy L. 6, 7 (2011).

* Krystyna Kowalik-Bańczyk is Associate Professor at the Institute of Law Studies, Polish Academy of Sciences; from September 1, 2016 a judge at the General Court of the European Union. Oreste Pollicino is Full Professor of Constitutional Law and Media Law at Bocconi University, Milan. The article is the result of a common effort: Krystyna wrote the introduction and parts B.I-III and C; Oreste wrote parts A I-II and B-IV of this text.

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Migration of European Judicial Ideas Concerning Jurisdiction Over Google on Withdrawal of Information

  • Krystyna Kowalik-Bańczyk and Oreste Pollicino

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