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Transcript of Gvca internet jurisdiction_ssrn
Electronic copy available at: http://ssrn.com/abstract=2686111
1
Regulating the internet. Prescriptive and Jurisdictional Boundaries to the EU’s ‘right to
be forgotten’. Geert van Calster
*
Part I. Jurisdiction in public international law
1. Jurisdiction generally
1.1. Three elements of jurisdiction and traditional theories
Prescriptive jurisdiction
Adjudicative jurisdiction
Executive jurisdiction
1.2 Challenge to the jurisdiction issue by modern economic law -
Adaptation of the “effects doctrine”
(i) The effects doctrine in the United States - International
“comity”
(ii) The effects doctrine in the European Union
(iii) Co-operation between the US and EU competition authorities
1.3 Extension to other areas of the law
2. Jurisdiction over the internet in public international law.
3. Conclusion on jurisdiction and public international law
Part II. Adjudicative jurisdiction over the internet in European private international
law.
II.1. The EU’s jurisdictional trigger in cases involving the internet in ‘civil and
commercial’ matters (ii) The Brussels I Regulation, 44/2001
(ii) In the Brussels I Recast Regulation
II.2 A patchwork of jurisdictional triggers in the EU.
II.3. Application in Google Spain
II.4 In the meantime, elsewhere: The Safari users case and Align Technology.
Part III. The territorial reach of the right to be forgotten.
Conclusion
* Professor in the University of Leuven, [email protected]
Electronic copy available at: http://ssrn.com/abstract=2686111
2
Discussion of a European Union (‘EU’) imposed so-called ‘right to be forgotten’ or RTBF
follows judgment of the European Court of Justice (‘CJEU’) in Google Spain.1 RTBF is
clearly not quite what the CJEU had in mind or held in the judgment. However the term has
captured public imagination. I too therefore in this article will employ the term as shorthand
for the Court’s ruling in Google Spain.
The case has led to suggestions of ‘exterritorial reach’ of Google Spain or the ‘global
reach’ of the RTBF, coupled with accusations that the EU oversteps its ‘jurisdictional
boundaries’. This follows especially the order or at least intention, by the French2 and other
data protection agencies, that Google extend its compliance policy3 to the .com webdomain.
This contribution focuses on the jurisdictional implications of the judgment. I do not review
the merits of the case on data protection, human rights (particularly: freedom of expression
and freedom to receive information), or other grounds. Jurisdiction being at the core of the
discussion, I recall in Part I core notions of jurisdiction in traditional international law. Much
of current analysis of Google Spain in my view suffers from conceptual confusion. Rules and
principles of private and public international law are thrown into one spaghetti bowl of ideas
which leads to opaque advice. At a first level of analysis, it is important therefore clearly to
separate private from public international law in the discussion of internet regulation.4 This, it
is hoped, will enable us to see the implications of the ruling more clearly, even if it requires
summary review of the overall international regime on jurisdiction.
Google Spain concerns litigation in civil and commercial matters. In essence it pitches
one private individual, a natural person, against another, a corporation. The implication of a
regulator (the Spanish data protection authority), does not materially affect the nature of the
relationship at stake. The litigation and the consequential compliance by Google lie squarely
in the area of private international law. That is arguably different for the follow-up extension,
as noted above, of Google’s RTBF compliance policy, to websites with suffixes ex-EU, in
particular, the .com extension.
Once core issues of jurisdiction clarified at both public and private international law levels in
respectively parts I and II of this contribution, I will draw conclusions from both areas, for the
specific issue of the territorial reach of the RTBF in part III.
1 Case C-131/12 Google Spain SL, Google Inc. v Agencia Española de Protección de Datos (AEPD),
Mario Costeja González, ECLI:EU:C:2014:317. 2 ‘CNIL orders Google to apply delisting on all domain names of the search engine’, 12 June 2015,
accessible via http://ow.ly/Tdf1y, last visited 9 October 2015. 3 Which at the time of writing features at the very top of the company’s FAQs on Privacy: see
https://www.google.be/policies/faq/ , last visited 30 September 2015. 4 D. Stewart, ‘Private international law: A dynamic and developing field’, University of Pennsylvania
Journal of International law, 2009, (1121–1131) 1123.
Private international law is radically different from public international law in 2 main aspects. it aims
to regulate relationships between private parties, not States; and it is designed to function primarily at
the domestic level, in domestic courts. There is limited overlap, in particular in sovereign and
diplomatic immunity; and government seizure of property. Stewart adds a third: private international
law functions ‘to harmonize and unify diverse national laws and practices in order to facilitate the
movement of goods, services, and peoples around the globe.’– something however which increasing
parts of public international law strive to achieve, too.
3
The aim of current paper is not to present a done and dusted jurisdictional model for the
regulation of the internet and, in wider sense, of the E-Economy. Rather, I hope to encourage
relevant debate on the issues under consideration. There is more to the extension of the RTBF
rule than scholarship has so far suggested.
Part I. Jurisdiction in public international law
National State sovereignty remains a cornerstone of the international legal regime.
‘Sovereignty’ and ‘jurisdiction’ are linked to a State’s territory. Jurisdiction is not a synonym
of State sovereignty, however the relationship between them is close. Territory is
simultaneously a condition for a State to exist,5 and a limitation to its rights. In principle, a
State is sovereign and has jurisdiction only within its territory. It is said a State’s title to
exercise jurisdiction rests in its sovereignty.6 Sovereignty in regard to a portion of the globe
has been described as the right to exercise therein, to the exclusion of any other State, the
function of a State.7
“The traditional normative concept of sovereignty is strained and flawed, but in the
absence of better means to manage inequality, it remains preferable to any of the
alternatives on offer.”8
While more recent scholarship has suggested a move away from ‘geography’ as a basis for
jurisdiction,9 particularly with a view to adapting the notions of jurisdiction to the internet
age, international legal practice has not (yet) firmly established generally accepted alternative
models. As the research division of the European Court of Human rights puts it: ‘jurisdiction is an aspect of a State’s sovereignty and for this reason, it is generally confined
geographically’.10
1. Jurisdiction generally
1.1. Three elements of jurisdiction and traditional theories
Jurisdiction is traditionally understood to have three elements.
• The power of a State to issue laws of general application or decisions directed at
individuals or groups is called legislative or prescriptive jurisdiction.11
5 Together with the government and population within its frontiers: see BROWNLIE, I., Principles of
Public International Law, Oxford, Clarendon Press, 1996, (748p.) p.107. See also the 1933
Montevideo Convention on the Rights and Duties of States, which quotes a “defined territory” as one
of the indispensable attributes of statehood, thereby reflecting customary international law. 6 R. Jennings and A. Watts (eds.), Oppenheim’s International Law - Ninth Edition, London, Longman,
1996, (2 Vol.), Vol.1, Par.17 (p.51), referring to the Lotus Case of the Permanent Court of
International Justice: PCIJ, 1927, Series A, No.10. 7 The Island of Palmas arbitration, United Nations Reports of International Arbitration Awards, 1928,
2, (829) 838: “Sovereignty in the relations between States signifies independence. Independence in
regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the
functions of a State”. 8 B. Kingsbury, ‘Sovereignty and inequality’, European Journal of International Law, 1998, 599-625. 9 See e.g. discussion in C. Ryngaert, Unilateral jurisdiction and global values, The Hague, eleven,
2015, p.74 ff. 10
Research division of the European Court of Human Rights, ‘Internet: case-law of the European
Court of Human rights’, 2011, available at www.echr.coe.int (Case law /Case law analysis /Research
reports), last consulted 4 November 2015.
4
• The power of a State’s courts to try cases involving a foreign element is called
‘adjudicative’, sometimes also ‘judicial’ jurisdiction.12
• Finally the power of a State to take executive action in pursuant of or consequent on
the making of laws or decisions is called ‘enforcement’, ‘executive’ or ‘prerogative’
jurisdiction.13
Adjudicative jurisdiction is often seen as the domain of private international law
(which is generally referred to in common law countries as conflict of laws).14
However in
assimilating adjudication with conflict of laws, or ‘private international law, one irons over a
considerable part of the adjudicative process which is not caught by private international law
/conflict of laws simply because the subject matter at issue is not ‘private’: namely the
adjudication of criminal law. And it is, as I review below, especially vis-à-vis the enforcement
of criminal law that traditional notions of jurisdiction in public international law have
developed.
Private international law squarely lies in the middle of the traditional three types of
jurisdiction. Adjudicative and prescriptive jurisdiction are closely related. Claims of
adjudicative jurisdiction and limits to same are undoubtedly influenced by what is prescribed
by the State concerned in its exercise of legislative jurisdiction.15
There is no consensus, through customary law or through international treaties, on a general
principle with respect to “extraterritorial” jurisdiction. One is left with partial input by
scholarship and practice. State practice on the matter is very diverse. In fact, no real
authoritative pronouncement on the existence of jurisprudence can be found since 1927,16
when the Permanent Court of International Justice (“PCIJ”) issued its judgment in Lotus.
The Lotus case, it should be pointed out from the start, concerned a criminal
prosecution. Indeed it is the exercise of jurisdiction in criminal matters, at all three levels of
jurisdiction, that has triggered the most debate, and case-law. In Lotus, a French and Turkish
vessel had collided on the high seas. Turkish crew and passengers were killed. The French
ship was taken to a Turkish port, and members of the crew were convicted of involuntary
manslaughter. The PCIJ sustained Turkey’s jurisdiction, on the basis of “objective
11
M. Akehurst, 'Jurisdiction in international law', The British Yearbook of International law, 1972-73,
(p.145-257) p.145. Akehurst adds another element, looking at the issue from the flip side of the coin:
whether States are under a legal duty to recognise such jurisdiction of other States. See also Final
Report by rapporteur M. Bos to the 19th Commission of the Institut de Droit International: 'The
extraterritorial jurisdiction of states', Annuaire de l'Institut de Droit International, 1993,: “Jurisdiction
to prescribe is to be understood as a State’s authority to lay down legal norms of general or limited
application”. 12 Ibidem: “Jurisdiction to adjudicate is to be understood as a State’s authority to administer justice
through courts or tribunals”. 13
I. Brownlie, Principles of Public International Law, Oxford, Clarendon Press, 1996, (748p.) (p.298
ff) p.298. Compare with M. Bos note 11 above: “Jurisdiction to enforce is to be understood as a
State’s authority to effect compliance with orders emanating from its legal order, whether by police
action, or by other official action.’ 14 See G. van Calster, European Private International Law, Oxford, Hart, 2013 (2nd ed forthcoming
2016). 15
On private international law and jurisdiction, see e.g. P.J. Slot and E. Grabandt, 'Extraterritoriality
and jurisdiction', Common Market Law Review, 1986, (545-565) p.557 ff. 16 P.J. Kuyper, 'European community law and extraterritoriality: some trends and new developments',
International and Comparative Law Quarterly, 1984, (1013-1021) 1014.
5
territoriality”, hereby assimilating the Turkish ship with Turkish territory.17
Turkey therefore
effectively exercised jurisdiction within its territory. The fundamental view upon which the
Court based its view for the exercise of jurisdiction within a State’s own territory, was that
‘international law governs relations between independent States. The rules of law
binding upon States therefore emanate from their own free will as expressed in
conventions or by usage generally accepted as expressing principles of law and
established in order to regulate the relations between these co-existing independent
communities or with a view to the achievement of common aims. Restrictions upon the
independence of States cannot therefore be presumed.”18
(emphasis added)
The most discussed extract of the judgment reads:
‘It does not, however, follow that international law prohibits a State from exercising
jurisdiction in its own territory, in respect of any case which relates to acts which have
taken place abroad, and in which it cannot rely on some permissive rule of
international law. Such a view would only be tenable if international law contained a
general prohibition to States to extend the application of their laws and the
jurisdiction of their courts to persons, property and acts outside their territory, and if,
as an exception to this general prohibition, it allowed States to do so in certain
specific cases. But this is certainly not the case under international law as it stands at
present. Far from laying down a general prohibition to the effect that States may not
extend the application of their laws and the jurisdiction of their courts to persons,
property and acts outside their territory, it leaves them in this respect a wide measure
of discretion, which is only limited in certain cases by prohibitive rules; as regards
other cases, every State remains free to adopt the principles which it regards as best
and most suitable. This discretion left to States by international law explains the great
variety of rules which they have been able to adopt without objections or complaints
on the part of other States …In these circumstances all that can be required of a State
is that it should not overstep the limits which international law places upon its
jurisdiction; within these limits, its title to exercise jurisdiction rests in its sovereignty.
(para 46-47) 19
The PCIJ was less permissive of the exercise of jurisdiction outside a State’s territory.
‘Now the first and foremost restriction imposed by international law upon a State is
that – failing the existence of a permissive rule to the contrary – it may not exercise its
power in any form in the territory of another State. In this sense jurisdiction is
certainly territorial; it cannot be exercised by a State outside its territory except by
virtue of a permissive rule derived from international custom or from a convention.”
(para 45)
Whether the Court’s extensive view on exercise of jurisdiction within a State’s territory is to
be accepted as the standing authority on the issue, is uncertain. The Court itself was very
divided on the issue (the votes casted were six to six, and the President’s vote was decisive).
17
I. Brownlie, note 13 above, p.302. 18 PICJ Lotus: France v Turkey, PCIJ Series A no.10, 7 September 1972, p.18. 19
Ibidem, p.19.
6
Interestingly, the Court itself seemed to limit the consequences of its statement, where it
referred to the varying practice of States and to the uncertainty surrounding the issue.20
Whatever the particularities of the case however, it did substantially influence
scholarship and practice for years to come. In the debate, exercise of jurisdiction was, not
surprisingly, discussed along the three forms defined above.21
Prescriptive jurisdiction, where a State applies its laws to cases involving a foreign element,
has caused particular controversy. Initially, American anti-trust laws were the primary cause
for discussion. In recent years, a battery of US and other legislation has joined the debate,
including export controls, taxation, securities, corrupt practices, etc. It would seem that the
greatest difficulty in this debate lies in the application of principles and theories which have
been developed in the area of criminal legislation, to the more “modern” areas of economic
law especially.
The principle of “objective territoriality” which underlies the theories which have
developed in the criminal law sector (see below), may need to be tailored to the particularities
of economic law. In the application of the effects doctrine and of the theory of constituent
elements, there is no consensus as to how close, direct or immediate the connection must be
between the element within the territory and the acts carried out abroad. This is all the more
so for economic legislation, where the “invisible hand” of the market and the application of
economic principles is at stake, not a physical crime.
Adjudicative jurisdiction in litigation between private parties, as noted, is the domain of
private international law. Most certainly an exciting and highly technical part of the law, it
does not generally however raise much debate on its implications for relations between
States.22
That is different for adjudication in criminal law. A variety of theories has developed to
assign adjudicative jurisdiction in criminal matters to one State or another, or indeed to
various States simultaneously.
Even though the issue of jurisdiction has been dealt with in elaborate international
criminal practice, this practice has failed to come up with a set of positive requirements of
jurisdiction. In the landmark Lotus case, precited, the PCIJ avoided setting out such positive
requirements. It expressed its general view in wording which has remained controversial ever
since, stating that States have a “wide measure of discretion” in applying their laws to
persons, property or acts outside their territory.23
In adjudicating criminal law,
• the classic theory gives jurisdiction to any State where one of the constituent elements
of the crime occurred, whilst the effects doctrine links jurisdiction to the consequences
of the crime. Both the effects doctrine and the theory of the constituent elements have
been referred to as “objective territoriality”.24
Most often a limitation to the effects
doctrine is suggested, in particular by assigning jurisdiction only to those States where
if not the bulk, then at least a substantial part of the damage occurred.
20 Ibidem, p.20. 21 See references below and also C.A. Bradley, ‘Universal jurisdiction and US law’, The University of
Chicago Legal forum, 2001, 323-350. 22 Recent application in the corporate social responsibility context excepted. See the USSC Kiobel
case-law and G. van Calster, ‘'The Role of Private International Law in Corporate Social
Responsibility', Erasmus Law Review, 2014, 125-133. 23
P. M. Roth, 'Reasonable extraterritoriality: correcting the "balance of interests"', International and
Comparative Law Quarterly, 1992, p.245-286. 24
Ibidem p.253.
7
• The protective or security principle has also been invoked by States to claim
jurisdiction. This applies in the aforementioned example of the fight against
terrorism,25
but also in trade matters. The protective principle claims jurisdiction over
acts committed by aliens abroad which threaten the State concerned. Suggestions are
made to limit the consequences of the protection doctrine, the same way as with the
effects doctrine. Such limitation would mean that a State can claim jurisdiction only if
the primary effect of the accused’s action was to threaten the interests of the State
concerned.26
• The nationality principle27
works both in an active sense (allowing a State to try
crimes committed by its own nationals abroad) and in a passive sense (granting
jurisdiction against non-nationals who have harmed the physical integrity or other
interests of the State’s nationals). Here, too, States often discipline their own use of the
principle for otherwise the principle would lead to constant tension with other States.
Executive jurisdiction is an issue especially in tax matters, but currently also in areas such as
the fight against terrorism. Generally, not every act by one State in the territory of another
State is contrary to international law. This is only the case where it represents an usurpation of
the sovereign powers of the local State,28
in other words, where a State’s action amounts to
the exercise of power linked with sovereignty.29
Apart from the need to adapt the classic determinants of jurisdiction to new areas of conflict,
the established principles themselves create overlapping jurisdiction.30 This is true for
instance in criminal law, through the combination of the territoriality and nationality
principles.31
Another example is the territorial principle itself, irrespective of the issue of
objective territoriality. Indeed, the prosecuted conduct may well comprise activity in more
than one State.32
It is clear therefore that the theoretical foundations listed above, require fine-
tuning in practice for otherwise they risk becoming irrelevant.
1.2 Challenge to the jurisdiction issue by modern economic law - Adaptation of the
“effects doctrine”
The application of American anti-trust legislation by US courts, was a foremost theatre for
cases involving adjudicative and prescriptive jurisdiction. Both the EU and the US have
adopted a form of the effects doctrine to determine jurisdiction for their courts and the
applicability of their respective laws protecting free competition.
25
See A. W. Wegner, 'Extraterritorial jurisdiction under international law: the Yunis decision as a
model for the prosecution of terrorists in US courts', Law and Policy in International Business, 1991,
409-440. 26
M. Akerhurst note 11 above, p.159. This author gives the example of a State which could otherwise
invoke the protection principle in order to punish all editors of all newspapers in the world for
criticising its government. 27
I. Brownlie, note 13 above, p.303. 28 H.M. Kindred (ed.) et al, International Law, Toronto, Emond Montgomery Ltd., 1993 (957p.). 29 Lotus p.18: a State must not exercise its power in any form in the territory of another State. 30
See P. J. Slot and E. Grabandt, note 15 above, p.550 ff. 31
Ibidem, where the authors gives the example of jurisdiction over the actions of a company
incorporated in one State, carried out in the territory of another. 32
Ibidem.
8
(iii) The effects doctrine in the United States - International “comity”
The discussion on alleged extraterritoriality in United States courts, focused on the degree of
input by public international law and by “comity”. ‘Comity’ is a concept of international law
which in its purest sense refers to ‘rules of politeness, convenience and goodwill, observed by
States in their mutual intercourse, without being legally bound by them’,33 seeking to ensure
‘the smooth functioning of international relations’.34
Comity refers to the non-binding35
obligation of States to conduct their international affairs in a manner that gives due regard to
the legitimate interests of other States.36-37
Rules of comity may however develop into
customary international law.38
A strict reading of the sovereignty principle
, based on territory arguments, was laid down in the
1909 American Banana case.39-40
This approach was swiftly abandoned per American
Tobacco, in 1911, which adhered to the effects doctrine:41
US courts were said to have
jurisdiction over foreign undertakings when a direct effect on commerce and some conduct
within the US could be shown. Just as in for instance civil law matters, the determination of
“cause” and “effect” may not always be easy.42
Alcoa confirmed the effects doctrine in determining US courts’ jurisdiction.43
It was
held that US law would apply to “foreign” anti-competitive agreements, where the agreement
was intended to have an effect on US commerce, and in practice also produced such effect.44
Often cited is Hand J’ statement in this case that
33
L. Oppenheim, International Law, 8th ed., 1955, Vol.1, 34. 34
J. Ellis, ‘Extraterritorial Exercise of Jurisdiction for Environmental Protection: Addressing Fairness
Concerns’ (2012) 25 Leiden Journal of International Law, 404. 35 Although this is much debated: see e.g. J. Paul, ‘The Transformation of International Comity’
(2008) 71 Law and Contemporary Problems 19. 36
R. Reuland, 'Hartford Fire Insurance Co., Comity, and the extraterritorial reach of United States
antitrust laws', Texas International Law Journal, 1994, (160-209) 193. 37 “‘Comity” in the legal sense, is neither a matter of absolute obligation, nor mere courtesy and good
will, upon the other. But it is the recognition which one nation allows within its territory to the
legislative, executive or judicial acts of another nation, having due regard both to international duty
and convenience, and to the rights of its own citizens or of other persons who are under the protection
of its laws.”: Hilton v Guyot, 159 US 113, at 163-164 (1895). 38 I. Brownlie, note 13 above, p.30. 39 American Banana Co. v United Fruit Co. (1909) 213 US 347, concerning market monopolies: “acts
done by a domestic corporation outside the US, which largely depend for their efficacy upon the co-
operation, in a conspiracy to drive a rival out of business, of soldiers and officials in Costa-Rica,
acting under governmental sanction, in a territory over which that State exercises a de facto
sovereignty, cannot be made the basis of the action to recover threefold damages authorised by the
Sherman anti-trust act of July 2, 1890.” Judge Holmes, reporting for the US Supreme Court, expressed
his surprise to even hear it argued that such acts would be governed by the act of Congress (p.355-
358). 40 American Banana has been referred to as an example of the formalist doctrine of sovereignty: C.
Shore, 'The Thai copyright case and possible limitations of extraterritorial jurisdiction in actions taken
under Section 301 of the Trade Act of 1974', Law and Policy in international business, 1992, (725-
748) 735. 41 United States v American Tobacco Co. (1911) 221 US 106. 42
Ibidem, p.745, with respect to the US-Thailand copyright dispute. 43
United States v Aluminium Corp. of America, 148 F. 2d 416 (2d Cir. 1945). 44 Ibidem, at [37]: “The agreements are unlawful under US law, if they were intended to affect imports
and did affect them.”
9
"It is settled law ... that any State may impose liabilities, even upon persons not within
its allegiance, for conduct outside its borders that has consequences within its borders
which the State reprehends; and these liabilities other States will ordinarily
recognize."
The crudeness of the Alcoa test sparked considerable international criticism.45
It was
suggested that Alcoa entirely neglected other States’ interest, and left public international law
out of the jurisdiction exercise. The only determinant elements were intent and actual effect.46
Even though Alcoa includes both an “intent” and an “effects” test, in practice, the intent
requirement largely fell out of use,47
referred to only where the impact on the US is indirect
and not substantial in size.48
Subsequently, both Timberlane and Mannington Mills attempted to include the interests of
foreign governments in the application of US anti-trust laws. They introduced a jurisdictional
“rule of reason”, requiring judges to consider and balance the interests of the different
governments involved.
In Timberlane (federal Court, 9th Circuit), Choy J considered that an effect on US
commerce, although necessary to exercise jurisdiction under antitrust laws, is not alone a
sufficient basis on which to rest assertion of American authority as a matter of international
comity and fairness. He concluded that ‘at some point, the interests of the United States are
too weak and the foreign harmony incentive for restraint too strong to justify an
extraterritorial assertion of jurisdiction.’49
The jurisdictional rule of reason”, suggested in
scholarship (Timberlane, [15, 16] (p.613) in his view had to be based on the assessment of
three criteria (Timberlane, [17] (p.615)):
(1) Does the alleged restraint of competition affect, or was it intended to affect, the
foreign trade of the United States?
(2) Is it of such a type and magnitude as to be cognizable as a violation of the Sherman
Act?
(3) As a matter of international comity and fairness, should the extraterritorial
jurisdiction of the United States be asserted to cover it?
The latter part of the exercise in his view should be determined, using a non-exhaustive list of
seven elements, of which the following would seem of particular importance: the degree of
conflict with a foreign rule; the nationality of the parties and the locations or principal places
of business of the undertakings concerned; the relative significance of the effects in the
United States as compared with the effects produced elsewhere; and the extent to which there
is an explicit purpose to harm or affect United States trade, and the foreseeability of such
effect (Timberlane, [14], p.614).
45 See i.a. I. Robinet, and P.J. Thys, 'The extraterritorial jurisdiction of US courts in antitrust cases',
International Business Law Journal, 1990, (201-226) 215 ff. 46
Underlined in [36] of the judgment (p.444): “The Sherman Act does not cover agreements, even
though intended to affect imports or exports, unless its performance is shown actually to have had
some effect upon them. Where both conditions are satisfied, the situation falls within US jurisdiction.” 47
R. Reuland, note 36 above, p.184. 48
J. R. Atwood and K. Brewster, American antitrust and American business abroad, New York,
Mc.Graw-Hill, 1981, Vol.1, 154. 49
Timberlane Lumber Co. v Bank of America 549 F. 2d 597 (9th Cir. 1976), at [10] (p.609).
10
Mannington Mills50
endorsed the rule of reason approach, and added some elements to
the Timberlane list.
The Restatement (Third) of Foreign Relations Law (1987)51
cemented the rule of reason
approach.52
It incorporates principles of reasonableness and comity into determinations of
jurisdictional authority.53
The Restatement recognises the potential effects of domestic laws
on the international market and adopts an approach that essentially balances the rights of the
countries interested in regulating the activity. The Restatement ‘sacrifices determinacy for
fairness’.54
Section 402 of the Restatement grants territorial jurisdiction over conduct or persons
in four different situations: over acts occurring in or people present within the territory; over
its nationals in- or outside its borders; over conduct by any person that affects national
security or “a limited class of State interests”; and over conduct outside a territory that has or
is intended to have substantial effect within its territory.
Even if jurisdiction may be established following Section 402, it has to be exercised in
a reasonable manner. Section 403 includes a non-exhaustive list of eight factors that affect
reasonableness, including the conformity of the rule with the traditions of the international
system, any interest which other States may have, and the likelihood of a conflict arising
therefrom.
In Hartford Insurance,55
the US Supreme Court was then given the opportunity to set out the
baseline for the assessment of international comity in anti-trust cases. The Court accepted the
application of US law, in view of the “substantial effect” which the conduct of foreign
insurance operators was intended to produce and did in effect produce. Importantly, the
conduct of the UK insurance brokers involved was fully acceptable under UK law. The USSC
rejected the arguments of the minority56
in Mannington Mills in so far as it suggested an
influence by international comity in determining jurisdiction. According to the Supreme
Court, such influence could only be reached at the subsequent stage, once jurisdiction had
been upheld (without involvement of comity). Even in this later stage, comity would,
according to the Court, only influence the outcome of the case if there exists a true conflict
between the US and foreign law.57
50 Mannington Mills Inc. v Congoleum Corp. 595 F. 1287 (3rd Cir. 1979). 51
American Law Institute, Restatement of the Law - the Foreign Relations Law of the United States,
St.Paul (Min.), American Law Institute Publishers, 1987 (2 vol.). The American Law Institute is a
private organisation. In no way does it represent an official reflection of what the law is. Its authors are
however the most distinguished, and the Restatement are often regarded as the correct representation
of how the law stands, and sometimes of how the law should be. As for the jurisdiction issue, the
Restatement is intended to codify the limitations, governing a State’s exercise of jurisdiction. It is
declamatory of what the Institute believes is customary international law on this issue. 52 K. Hixon, ‘Extraterritorial jurisdiction under the third restatement of foreign relations law of the
United States’, Fordham International Law Journal, 1988, 127. 53
F.K. Juenger, 'The "Extraterritorial" application of American antitrust law and the new foreign
relations law restatement', Wirtschaft-und-Wettbewerb, 1990, 602-618; R. Reuland, note 36 above,
p.201 ff; C. Shore, note 40 above, p.736. 54
Ibidem. 55
Hartford Fire Insurance Co. v California 125 L. Ed. 2d 612 (1993). 56 Pro R. Reuland, note 36 above, p.194, pointing out however that the distinction between the
assertion of jurisdiction, and the subsequent application thereof, may be merely academic. 57
Hartford Fire Insurance 3a-3d: the principle of international comity does not counsel against
exercising jurisdiction with respect to Sherman Act allegations that reinsurers based in London
engaged in unlawful conspiracies to affect the market for insurance in the United States and that their
11
Hartford Insurance has been called the “true conflict” doctrine, arguably a rather
crude form of the effects doctrine.58
Indeed, it would seem that in the vast majority of cases,
comity does not prevent the application of US law. Under the true conflict rule, comity only
leads to rejection of jurisdiction established in principle, where foreign law either directly
orders the defendant to act in a way prohibited by US law, or generally where the defendant is
not able to comply with both sets of law simultaneously.59
This is not the case in the majority
of disputes, where defendants merely have acted in a way which is not prohibited by the
foreign legislation in question.
As to the element of intent, Hartford Insurance would seem to follow the approach of
the majority of courts after Alcoa (above). The Court did state, with Alcoa in mind, that US
legislation applies to foreign conduct that was meant to produce an effect in the US, but the
ruling left unclear what place intent has in the analysis.60
In summary, in Hartford Insurance, the USSC adopted the position that, after a court
determines that it has subject matter jurisdiction over the claim, and prior to undertaking a
comity analysis, it must consider whether the conflict between US and foreign law is in fact a
“true conflict”. The Court hereby effectively closes the door to considerations of comity under
any circumstances short of an actual conflict between US and foreign law.61
Hartford Insurance triggered a string of articles and opinions,62
as well as renewed
international criticism. It was said that the USSC did not have a consistent approach to comity
across all sectors. It was also suggested that the Court employed double standards. In its
jurisprudence on the delimitation of powers between US States and the Federation, the Court
has imposed considerable restraints on the Federation’s Heads of power.63
It was not the very
principle underlying the effects doctrine which was called into question. Indeed as I review
below, the EU in its competition law practice has adopted the same doctrine. Rather what
scholars took issue with is the perceived lack of consideration, in US case-law and regulatory
action by the anti-trust authorities, for the needs and concerns of the State in which the
defendants are situated.64
The deputy US Secretary of State hinted a few years before Hartford, that US courts
should renew their search for appropriate guidelines for assertions of authority over conduct
abroad, such as an interest-balancing or comity approach.65
The Supreme Court’s approach in
Hartford Insurance was probably not what he had in mind. Even scholars who generally
support a broad extraterritorial application of US economic law, have urged the US
administration to practice restraint, for political reasons. They pointed to the international
conduct in fact produced substantial effect, because there is no conflict with British law where the
London reinsurers do not claim that (1) British law requires them to act in some fashion prohibited by
the law of the United States, or (2) their compliance with the laws of both countries is otherwise
impossible. 58 See P. Torremans, ‘Extraterritorial application of E.C. and U.S. competition law’, European Law
Review, 1996, 280 ff. 59
Hartford Insurance at 2911, reflecting the point of view of the US Government. 60 R. Reuland, note 36 above, p.184. 61 Ibidem, p.161 and p.176. 62
US scholars do not always agree as to the precise intent of the Court: see e.g. R. J. Weintraub,
'Response to Reuland: Hartford Fire Insurance Co., Comity, and the extraterritorial reach of United
States antitrust laws'', and response by Reuland, Texas International Law Journal, 1994, 427-436. 63
E.g. FTC v Ticor Title Ins. Co., 112 S.Ct. 2169 (1992). 64
R. Reuland, note 36 above , p.191-192. 65 K. W. Dam, 'Economic and political aspects of extraterritoriality', The International Lawyer, 1985,
(887-869) 891.
12
reputation of the US as being the “grabbiest” when it comes to the extraterritorial application
of a State’s laws.66
(iv) The effects doctrine in the European Union
Article 101 of the Treaty on the Functioning of the EU (TFEU), one of the two core Treaty
Articles on competition law, itself includes a reference to ‘effects’. The agreements, decisions
and concerted practices which it has in mind have to “affect trade” between Member States
and “have as their object or effect” the prevention, restriction or distortion of competition
within the Common Market”. However it is generally accepted that this reference to effect is
merely an instruction with a view to determining delineation of power (‘competence’ in EU
jargon) between the Member States cq the European Union.67
Thus, the “effects” element
within Article 101 TFEU is no basis for jurisdiction.68
In Dyestuffs the Commission dismissed the claim by the parties as to
extraterritoriality.69
From the wording of Article 101 (Article 81 EEC as it was then), the
Commission concluded that the rules on competition set out in it are applicable to all
restrictions which produce, within the Common Market, the effects prohibited by Article 101.
It found it unnecessary to examine whether the undertakings which have caused the restriction
on competition, have their registered offices in- or outside the (then) Community.70
Advocate-General Mayras developed an argument for the effects doctrine in his
opinion in this case, stating that Union authorities are competent to prohibit an agreement or
practice which produces direct, foreseeable and substantial effects inimical to competition in
the territory of the Common Market.71
. The Court of Justice of the EU (CJEU) decided the
issue on the basis of the “economic entity” doctrine: effectively an application of the active
nationality principle, referred to above. Through its subsidiaries in the EU, the behaviour of
the undertaking in question in fact had to be seen as the behaviour of a European undertaking.
This made the territoriality issue superfluous.72
In Wood Pulp there was no such escape route.73
The Commission’s assertion of jurisdiction
was based on74
the effects of the agreements and practices on prices announced and/or
charged to customers and on resale of their products within the EU was substantial, intended,
and the primary and direct result of the agreements and practices. The Commission did seem
to attach particular weight to the fact that all the addressees of the Decision were, during the
period of the infringement, exporting directly to, or doing business within the EU. This is
what later would be referred to as the “implementation” element of the exercise. This might
not have been very apparent in the Decision itself, but the Commission did expressly insist on
it in the oral hearings before the CJEU.75
By adding the element of implementation, the
66
C. Shore, note 40 above, p.747 and footnote 108. 67 See also Opinion of Advocate General Mayras in Case 48/69, Imperial Chemical Industries Ltd. v
Commission, [1972] ECR (687-697) at 692. 68
Opinion of Advocate General Darmon in Joined Cases 89, 104, 116-117, 125-129/85, Ahloström OY
and others v Commission, [1988] ECR (5214) 5215. 69 Commission Decision of 24 July 1969, Matières Colorantes, JO [1969] L195/11. 70
Ibidem, p.16, in fine. 71 Note 67 above, at 695. 72 Case 48/69, Imperial Chemical Industries Ltd. v Commission, [1972] ECR 619, at 663. 73
P. Torremans, note 58 above, p.283. 74
Commission Decision of 19 December 1984, OJ [1985] L85/1, at 15. 75 Report for the hearing in Joined Cases 89, 104, 116-117, 125-129/85, Ahloström OY and others v
Commission, [1988] ECR (5193) 5212.
13
Commission arguably meant to rebut arguments based on extraterritoriality.76
The element of
implementation is seen as offering the EU enough of a territorial link to make the recourse to
justification unnecessary.
The AG had suggested the criterion of qualified effect, as it had been put forward by
Mayras AG in his opinion in Dyestuffs. For the AG, the effect should be direct, immediate,
reasonably foreseeable and substantial.77
The CJEU followed the Commission’s approach, adopting the implementation
doctrine.78 The Court very clearly underlined that the decisive element for determining
whether the agreement or practice has had the effect of restricting competition within the
Common Market, is the place where it is implemented.79
In conclusion, the EU approach in competition cases is less likely to lead to claims of
jurisdiction: it leads to a more “inward looking” application of competition rules, one which
includes an element of self-restraint, which is lacking in the USSC’s Hartford Insurance
(above).80
The CJEU rejected the suggestion that for the Commission to sustain jurisdiction,
would be contrary to international comity. It firstly referred to the lack of objection by the US,
when consulted by the Commission under a 1979 OECD Council Recommendation.81
It also
underlined that the US legislation relied on by the applicants did not require the parties to
enter into the cartel, but merely exempted the conclusion of export cartels from the
application of US anti-trust law.82
This latter element is reminiscent of the true conflict
doctrine of the USSC in Hartford Insurance. It should be underlined, however, that this
statement was merely meant as a reply to the applicants’ arguments. The core of the CJEU’s
stance lay in the implementation doctrine.
The Court emphasised the effects doctrine in cases involving the Merger Regulation.83
In
Gencor84
the Court held specifically that the ‘(a)pplication of the Regulation is justified under
public international law when it is foreseeable that a proposed concentration will have an
immediate and substantial effect in the Community’,85
specifying this in the same judgment by
76
P. Torremans, note 58 above. As this author puts it: the result of the ‘implementation’ element was
that Community jurisdiction did not arise from the concerted practice of the pulp companies (situated
outside the Community), but from their conduct (direct trading) in the Community in implementing
this practice. 77 Advocate General Darmon, note 68 above, 5226. 78 V. Korah, EC Competition Law and Practice, London, Sweet & Maxwell, 1994, (330p.) p.22. 79
Joined Cases 89, 104, 116-117, 125-129/85, Ahloström OY and others v Commission, [1988] ECR
5193, (5233) at 5242. 80 A. Roberston and M. Demetriou, 'The extraterritorial application of US antitrust laws in the US
Supreme Court', International and Comparative Law Quarterly, 1994, (417-425) 423. Not everyone
would agree that the EU is in general more restrictive in applying its competition laws
extraterritorially: See C.S.P. Harding, 'Jurisdiction in EEC competition law: Some recent
developments', Journal of World Trade, 1977, 422-440. 81 1979 OECD Council Recommendation on Co-operation between Member States on Restrictive
Practices affecting International Trade, adopted 25 October 1979, Acts of the OECD, Vol.19 (1979)
p.376. 82 Wood Pulp, precited; see C. W. Bellamy and G. Child, Common Market Law of Competition,
London, Sweet & Maxwell, 1993, (1381p.) 2-156. 83
Regulation 4064/89 on the control of concentrations between undertakings, OJ [1989] L395/1; as
amended. 84 Case T-102/96, Gencor v Commission, [1999[] ECR II-753. 85
Ibid., at 90.
14
stating that in order for the application of the Regulation in a specific case to be compatible
with public international law, it is necessary to verify whether there is an immediate,
substantial, and foreseeable effect in the Community (now Union).86
(v) Co-operation between the US and EU competition authorities
Co-operation between the EU and US anti-trust authorities led to the “Agreement between the
European Communities and the Government of the United States of America regarding the
application of their competition laws” of 23 September 1991,87 subsequently annulled for
reasons of legal basis88
and reinstated through a joint decision of the Council and the
Commission of 10 April 1995.89
This Decision also approved the text of an interpretative
letter addressed to the US clarifying the provisions of the Agreement relating to
confidentiality.90
Apart from addressing the concerns over continuing tension between the US and the
EU over the extraterritoriality issue, the Agreement provides for assistance in tackling
practical problems of jurisdiction. For instance, the gathering of information or the issuing of
formal notices may not be that easy when the authorities have to operate outside of their
territory.91
The main provisions of the Agreement include:92
- Notification of cases handled by the competition authorities of one Party, when these
cases concern the important interests of the other Party and exchange of information on
general matters relating to the implementation of the competition rules;
- Co-operation and co-ordination of the actions of both Parties’ competition authorities;
- A “traditional comity” procedure by virtue of which each Party undertakes to take into
account the important interests of the other Party when it takes measures to enforce its
competition rules;
- A “positive comity” procedure by virtue of which either Party can invite the other
Party to take, on the basis of the latter’s legislation, appropriate measures regarding anti-
competitive behaviour implemented on its territory and which affects the important interests
of the requesting Party.
Moreover, the Agreement expressly states that none of its provisions may be
interpreted in a manner which is inconsistent with the legislation in force in the EU and the
US, and that the competition authorities remain bound by their internal rules regarding the
86 Ibid., at 92. 87 OJ [1995] L95/47. See A. D. Ham, ‘International cooperation in the anti-trust field and in particular
the agreement between the United States of America and the Commission of the European
Communities’, Common Market Law Review, 1993, 571-597. 88 Case C-327/91, France v Commission, [1994] ECR I-3641. 89
OJ [1995] L95/45. 90OJ [1995] L131/38. The issue of confidentiality was part of the objections made by France. 91
E.g. D. J. Gerber, 'Extraterritorial Discovery and the Conflict of Procedural Systems: Germany and
the United States', The American Journal of Comparative Law, 1986, 745-788; B. Goldman, A. Lyon-
Caen, and L. Vogel, Droit Commercial Européen, Paris, Ed. Dalloz, 1994, (835 p.) No. 932 ff. For the
gathering of evidence abroad, see e.g. R.A, Spehr, 'U.S. subpoenas: the limits of extraterritoriality',
International Financial Law Review, 1992, 19-21. 92
Commission Report of 8 October 1996 on the application of the Agreement between the European
Communities and the Government of the United States of America regarding the application of their
competition laws, 10 April 1995 to 30 June 1996, COM(96) 479, p.3.
15
protection of the confidentiality of information gathered by them during their respective
investigations.
The Agreement does in so many words settle the question of jurisdiction. The
possibility of invoking the positive comity principle does however encourage the authorities
to refrain from taking unilateral action. The far-reaching co-operation and information duties,
as well as the existence of regular contacts between the officials involved, are designed to
make recourse to unilateral action less tempting. Nevertheless, the EU and the US were of the
view that the positive comity requirement should be strengthened.
Whilst the Commission in general sought to strengthen co-operation with foreign
authorities in general,93
particularly through the OECD,94
the co-operation with the US in
particular was making the most progress. Consequently the US and the EC negotiated an
agreement strengthening the positive comity requirement of the 1991 Agreement. The
agreement provides that a competition authority will normally defer or suspend its own
enforcement activities in respect of certain anti-competitive practices which occur principally
in and are directed principally towards the other Party’s territory, where that other Party is
prepared to deal with the matter.95
A similar agreement was negotiated with Canada.96
Again, this new Agreement is not intended to settle the very issue of the claim of
jurisdiction. One of the weaknesses of the Agreement is of course that it does not cover those
court actions which are brought, particularly in the US, by private parties.97
1.3 Extension to other areas of the law
The growing interdependence of modern economies, as well as the emergence of transnational
companies, presented a challenge to the weight of the territoriality principle in interstate
relationships. International economic law was the quake fault along which the cracks showed
of assertion of jurisdiction purely on the basis of territory.
The resulting effects doctrine in EU /US relations, emerged as a suggested approach for
jurisdiction generally.98
It is suggested that such effects doctrine allows jurisdiction, where the
effects of other States’ or individuals’ behaviour on the territory of the State exercising
jurisdiction, is direct, substantial, and foreseeable. The burden of proof lies with the
93 See the Report “Competition Policy in the new trade order: Strengthening international co-operation
and rules - Report of the EC group of experts”, 1995, on file with the author. 94 See 1986 OECD revised recommendation concerning co-operation between Member countries on
restrictive business practices affecting international trade, (86)44. 95
Communication from the Commission of 18 June 1997 concerning the Agreement between the EC
and the Government of the United States on the application of positive comity principles in the
enforcement of their competition laws, and Proposal for a Decision to formally conclude that
Agreement, COM(97) 233. See also Commission Report of 4 July 1997 on the application of the
Agreement between the European Communities and the Government of the United States of America
regarding the application of their competition laws, 1 July 1996 to 31 December 1996, COM(97) 346,
p.5. The Agreement was adopted by the EC by Decision of the Council and of the Commission of 29
May 1998 concerning the conclusion of the Agreement between the EC and the Government of the
United States on the application of positive comity principles in the enforcement of their competition
laws, OJ [1998] L173/26. 96 Commission Proposal of 4 June 1998 for a Council and Commission Decision concluding the
agreement between the EC and the Government of Canada regarding the application of their
competition laws, COM(1998) 352. . 97
P. Torremans, note 58 above, p.292-293. 98 W.S. Dodge, 'Extraterritoriality and Conflict-of-Laws theory: An argument for judicial
unilateralism', Harvard International Law Journal, 1998, (101-169) 169.
16
authorities or individuals who suggest jurisdiction exists. The interests of other States would
have to be taken into account. ‘The basis of the assessment should be the extent to which the
conduct at issue is in accordance with the policy or interests of the State where it is carried
out (...).’99
A good example of such extension to other areas, is the EU’s application of its emissions
trading regime to aircraft operating outside of the EU, however landing and /or taking off at
an EU airport.100
The relevant Directive101
sought to regulate emissions on international
flights within the EU, as well as those flying to or from the EU. This effectively means that
international providers are ‘taxed’ on the amount of fuel used for the entire journey, not just
the part of the journey that occurred in the EU. It was argued that this element of the Directive
conflicted with States’ sovereignty to fly over their own airspace, as well as the principle
relating to freedom to fly over the high seas.
However, the Court held that by utilising an EU airport, airlines effectively subject
themselves to the EU’s regulatory mechanisms. The rationale is that if airlines do not want to
surrender an allowance for each tonne of carbon emitted, then they should not fly out of or
land in the EU.
Academic reception of this judgment seems to be divided into two main camps: those
that see the EU Directive as a breach of State sovereignty,102
and those that view the
regulation as an assertive stance, a concerted effort to make large corporations face the
consequences of their actions.103
The former refer in particular to international obligations
under comity. Seen through this lens, the it is argued the EU Directive oversteps the mark in
regards to the extraterritorial application of the Scheme. Some have argued that the EU
Directive represents ‘aggressive unilateral regulation’ and demonstrates a ‘disregard’ for the
usual avenues of cooperation designed by international law.104
Importantly, the EU responded to the international criticism of the judgment, by
suspending the relevant rules vis-à-vis companies located outside of the EU, pending the
outcome of multilateral negotiations.
A similar tendency of the CJEU to employ an existing territorial link (in that case: departure
from the territory of the EU) with the EU, to capture activities taking place outside of the EU,
was present in Zuchtvieh-Export.105
This case concerned the application of EU animal welfare
rules to transportation taking place outside of the EU. I further review this case below.
The CJEU will have another opportunity to discuss ‘extraterritorial’ EU law, in European
Federation for Cosmetic Ingredients v Secretary of State for Business, Innovation and Skills,
99 P.M. Roth, note 40 above, p.277. 100
Case C-366/10 Air Transport Association of America and others v Secretary of State for Energy
and Climate change, [2011] ECR I-13755. See also J. Scott, ‘The new EU ‘extraterritoriality’,
Common Market Law Review, 2014, 1343-1380. 101
Directive 2003/87 [2003] OJ L275/32, as amended in particular by Directive 2008/101, [2009] OJ
L8/3. 102 See for example, B.F. Havel and J.Q. Mulligan, ‘The Triumph of Politics: Reflections on the
Judgment of the Court of Justice of the European Union Validating the Inclusion of Non-EU Airlines
in the Emissions Trading Scheme’, Journal of Air and Space Law, 2012, 3-33. 103 See for example, S. Bogojevic, ‘Legalising Environmental Leadership: A Comment on the CJEU’s
Ruling in C-366/10 on the Inclusion of Aviation in the EU Emissions Trading Scheme’, Journal of
Environmental Law, 2012, 345-356. 104 Havel and Mulligan, note 102 above.. 105
Case C-424/13, Zuchtvieh-Export GmbH v Stadt Kempten, ECLI:EU:C:2015:259.
17
Attorney General.106
The EU’s cosmetics Regulation107
prohibits the placing on the market of
products tested on laboratory animals. Application of the (criminally enforced) UK
implementing regulations, raised questions on the precise scope of the Regulation’s
provisions which are aimed at preventing the simple circumvention of the Regulation via
production abroad. The case at issue concerns the question whether products may incorporate
ingredients tested outside the EU, where this testing has been carried out with a view to
meeting the product regulation requirements of third States. The room for circumvention of
the EU regime is obvious. The limits to the EU’s territorial reach likewise.
2. Jurisdiction over the internet in public international law.
The pervasive and ‘truly international’ nature of the internet may challenge the classic
territorial approach described above. However it is most certainly not the case that all internet
activity escapes traditional notions of sovereignty and jurisdiction.
For instance, the use of Internet resources in one country may have an immediate
effect on the physical safety and wellbeing of another State. In some obvious cases,
jurisdiction issues therefore may easily be handled through “pure” territorial considerations:
the spread of harmful computer viruses; remote hacking of websites; incitement to crime or
violence come to mind. In such cases, tension may nevertheless occur where the States
involved simultaneously exercise their jurisdiction, in an incompatible manner.
Other events might however lead to less obvious, some would say negligible, cases of
impact. Here, a question arises which is very similar to the effects issue in competition law:
should all effect lead to jurisdiction, or should one handle the scales of qualified effect? If the
latter is the case, how should the scales be tuned?
3. Conclusion on jurisdiction and public international law
Jurisdiction in public international law at first sight is the be all and end all of States’ actions,
whether prescriptive, adjudicative or executive. Despite all the analysis in scholarship and in
part in national case-law, international courts such as the International Court of Justice rarely
rule on the issue. The two main jurisdictions where extraterritoriality has been discussed more
or less extensively in case-law, both reflect on the role of comity in circumscribing too liberal
a use of any of the three forms of jurisdiction.
Part II. Adjudicative jurisdiction over the internet in European private international
law.
As I noted in my introduction, Google Spain concerns the concerns litigation in civil and
commercial matters. In essence it pitches one private individual, a natural person, against
another, a corporation. The implication of a regulator (the Spanish data protection authority),
does not materially affect the nature of the relationship at stake. The litigation and the
consequential compliance by Google lie squarely in the area of private international law. That
is arguably different for the follow-up extension, as noted above, of Google’s RTBF
compliance policy, to websites with suffixes ex-EU, in particular, the .com extension.
106 Case C-592/14, pending before the CJEU at the time of writing. 107
Regulation 1223/2009, OJ [2009] L342/59.
18
II.1. The EU’s jurisdictional trigger in cases involving the internet in ‘civil and
commercial’ matters
(i) The Brussels I Regulation, 44/2001108
In civil litigation, until recently the relevant legislation was Regulation 44/2001 on
jurisdiction and the recognition and enforcement of judgments in civil and commercial
matters,109 generally known as the ‘Brussels I Regulation’. The Brussels I Regulation as it
stood until the 2012 amendments, displayed 3 main points of attention with respect to its
external impact:110
-111
- the protection (through recognition and enforcement) of judgments given under
Member States’ residual jurisdiction,112
without account being taken of third
countries’ interests; see more on this, below.
- the lack of provisions (a lis alibi pendens rule) in the event of jurisdiction
exercised under the Regulation, with parallel proceedings in a third State; and
- choice of court in favour of the courts of a third State.
Throughout the Regulation, it is the position of the defendant which is determinant,
not that of the plaintiff. The Regulation aims to protect the defendant domiciled in any of the
Member States ― whatever his or its (in the case of legal persons) nationality ― against
exorbitant claims of jurisdiction. That protection is only provided for those domiciled in the
EU. Against defendants not domiciled in the EU, the national rules of jurisdiction set out in
Annex I of the Regulation, may apply.
Annex I contains a number of national jurisdictional claims which were regarded as
being particularly ‘exorbitant’113
chiefly among them the parochial intuition114
of France in
jurisdictional matters, holding jurisdiction in France over almost any action115
brought by a
plaintiff of French nationality.116
Importantly, judgments applying the national grounds of
jurisdiction in accordance with (former) Article 4 enjoy the recognition and enforcement
provisions of the Regulation (as opposed to the subject-matter which escapes the Regulation
108
Articles quoted in this section refer to the 2001 version of the Regulation. As I review in heading
(ii), there is now an amended Regulation, 1215/2012. 109 OJ [2001] L12/1. 110 See also A. Layton, 'The Brussels I Regulation in the international legal order: Some reflections on
reflectiveness', The Brussels I Review Proposal Uncovered, E. Lein, (ed.), London, British Institute of
International and Comparative Law, 2012, 75 (mentioning three of these). 111 Generally and excellently on the impact of the Brussels regimes on third States: T. Kruger, Civil
Jurisdiction rules of the EU and their impact on third States, Oxford, OUP, 2008, 442 p. 112
The meaning of this will become clear below. 113 K.A. Russell, ‘Exorbitant jurisdiction and enforcement of judgments: the Brussels system as an
impetus for the United States action’, Syracuse Journal of International Law and Commerce, 1993, 2. 114 K. Clermont and J. Palmer, ‘French Article 14 jurisdiction, viewed from the United States’,
Cornell Law School research paper 04-011, 2004, 2 (available on SSRN). The authors suggest
the shock value of France’s jurisdictional claims needs to be taken with a pinch of salt. 115 Issues related to real estate are the most commonly applied exception. 116 See however Paris criminal court, 3 March 2011, Ministère public v Joseph Weiler,
declining jurisdiction in a case initiated by an aggrieved author with no links to France other
than nationality, against Prof Weiler, with no links to France at all, for the publication of a
book review (not by his hand) in an online law journal.
19
completely by virtue of Article 1). This implies that other Member States called upon to
recognise and enforce such judgments, have very limited room for manoeuvre to refuse.117
The way in which the EU, through the Regulation, condones or, through the
enforcement provisions, perhaps even sponsors exorbitant jurisdiction of some of its Member
States, attracted international criticism. Nevertheless, the European Commission, in its
proposal for review, suggested the inclusion of additional jurisdictional grounds, which
eventually led in particular and of most concern to us here, to the extension of the protection
of consumers, in Business to Consumers (‘B2C’) contracts, to such contracts concluded with
businesses not domiciled in the EU: we revisit this issue in heading (ii), below.
Interestingly, the 2001 Regulation inserted a provision which was specifically meant to adapt
EU law to the realities of e-commerce. This being the only provision to date, in EU law on
adjudicative jurisdiction, to have created a regime purposely in answer to the peculiarities of
the internet, it obviously deserves more than just passing attention.
In determining whether a B2C contract should fall under the heading for ‘consumer
contracts’, the Regulation foresees that the business concerned needs to ‘direct its activities
at’ the Member State of the consumer in question. The text of the Regulation does not actually
offer any definitive guidance in how it ought to be applied.118 The most specific statutory
angle under which to attach internet jurisdiction, became ‘the direction of activities towards
the Member State of the consumer.’
Precisely how ‘interactivity’ is to be determined in the internet context, was not
specified by the proposal. Consequently this proviso led to speculation as to the level of
website interaction which triggers (now) Article 17 of the Brussels I Recast Regulation.119 The
Article itself, as noted, employs ‘directed to’ and ‘by any means’. In a joint ‘Statement on
Articles 15 and 73’,120 Council and Commission specifically mentioned that the language or
currency which a website uses do not constitute a relevant factor. Likewise, the fact that a
consumer simply had knowledge of a service or possibility of buying goods via a passive
website accessible in his country of domicile will not trigger the protective jurisdiction. Hence
the question remains what does trigger the application of Article 17 in an internet context.
117 See Arts 34 and 35, and Article 45. See also a very limited extra layer of protection for
those domiciled in third States, in Article 72 of the former Regulation: This Regulation shall
not affect agreements by which Member States undertook, prior to the entry into force of this
Regulation pursuant to Article 59 of the Brussels Convention, not to recognise judgments
given, in particular in other contracting States to that Convention, against defendants
domiciled or habitually resident in a third country where, in cases provided for in Article 4 of
that Convention, the judgment could only be founded on a ground of jurisdiction specified in
the second paragraph of Article 3 of that Convention.. There are in fact only two such
agreements: one between the UK and Canada, and one between the UK and Australia. Hence
only UK courts and only in limited circumstances will be able to refuse recognition and
enforcement of the relevant judgment of another Member State. 118 The Commission itself near acknowledged as much by announcing in its explanatory memorandum
that notwithstanding the application of the express provisions for the internet context, it would hold a
hearing on the topic. 119
L. Gillies, ‘Addressing the Cyberspace Fallacy”: Targeting the Jurisdiction of an Electronic
Consumer Contract’, International Journal of Law & Information Technology, 2008, (242) 253. 120
OJ [2001] L12/1.
20
In the Joined Cases Pammer and Alpenhof,121 the CJEU handed national courts a number of
criteria which helps them apply the Article in an internet context. The criteria which the Court
withheld in summary, are (para 93–94):
the international nature of the activity, mention of itineraries from other Member
States for going to the place where the trader is established, use of a language or a
currency other than the language or currency generally used in the Member State in
which the trader is established with the possibility of making and confirming the
reservation in that other language, mention of telephone numbers with an international
code, outlay of expenditure on an internet referencing service in order to facilitate
access to the trader’s site or that of its intermediary by consumers domiciled in other
Member States, use of a top-level domain name other than that of the Member State in
which the trader is established, and mention of an international clientele composed of
customers domiciled in various Member States. On the other hand, the mere
accessibility of the trader’s or the intermediary’s website in the Member State in
which the consumer is domiciled is insufficient. The same is true of mention of an
email address and of other contact details, or of use of a language or a currency which
are the language and/or currency generally used in the Member State in which the
trader is established.
(ii) In the Brussels I Recast Regulation
The amended ‘Brussels I Recast’ Regulation122 has extended the application of consumer
contracts to include businesses not domiciled in the EU. Their contracts with consumers will
be caught by the Regulation, provided their activities are ‘directed at’ the EU, in line with the
Pammer /Alpenhof criteria.
The EU’s territorial reach for employment contracts, too, has been expanded. Under
the previous Regulation, employers not domiciled in the EU could escape adjudication by a
court in the EU. This is no longer possible, provided the employee ‘habitually carries out this
work’ in the EU: a clear territorial criterion.
II.2 A patchwork of jurisdictional triggers in the EU.
Consumer contracts have been the specific focus of the consumer title of the Brussels I
Regulation. However it is evidently not just in the standard civil and commercial context that
the EU court has had to consider the application of traditional rules of adjudicative
jurisdiction, to activities with an internet character.
One might expect ‘direction of activities’ as an overall trigger for EU prescriptive and
adjudicative jurisdiction. However case-law has also used ‘targeted at’, ‘focussed and
targeted’, ‘oriented at’, and mere access or acquisition.
In the trademark context, the reference European Union case is the L’Oréal/Ebay litigation.
The CJEU instructed that where goods located in a third State, which bear a trade mark
registered in an EU Member State or a Community trade mark and have not previously been
put on the market in the EEA or, in the case of a Community trade mark, in the EU,
(i) are sold by an economic operator on an online marketplace without the consent of the trade
121
Joined Cases C-585/08 and C-144/09, Peter Pammer v Reederei Karl Schlüter GmbH & Co. KG
(C-585/08) and Hotel Alpenhof GesmbH v Oliver Heller (C-144/09). [2010] ECR I-12527. 122
Regulation 1215/2012, OJ [2012] L351/1.
21
mark proprietor to a consumer located in the territory covered by the trade mark; or
(ii) are offered for sale or advertised on such a marketplace targeted at consumers located in
that territory,
the trade mark proprietor may prevent that sale, offer for sale or advertising by virtue of the
rules set out in relevant EU legislation. It is the task of the national courts to assess on a case-
by-case basis whether relevant factors exist, on the basis of which it may be concluded that an
offer for sale or an advertisement displayed on an online marketplace accessible from the
territory covered by the trade mark is ‘targeted at’ consumers in that territory. When the offer
for sale is accompanied by details of the geographic areas to which the seller is willing to
dispatch the product, that type of detail is of particular importance in the said assessment.123
The CJEU itself noted in para 64 of its L’Oréal judgment the analogy with the
aforementioned Pammer and Alpenhof litigation.124
For trademark infringement therefore, the criterion is ‘targeted at’.
‘Intended target of information’ as a criterion of applicability was also confirmed as the
criterion for application of the Database Directive, Directive 96/9 in Football Dataco.125’
Mere accessibility of data does not suffice to grant jurisdiction under the EU Database
directive.
Pinckney concerned jurisdiction for an action in tort for alleged breach of copyright, albeit in
a purely intra-EU context. The CJEU here withheld mere accessibility: a more flexible
criterion for jurisdiction, in other words.
Mr Pinckney is author, composer and performer of 12 songs recorded on a vinyl
record. He discovered that those songs had been reproduced without his authority on a
compact disc pressed in Austria, then marketed by United Kingdom companies through
various internet sites accessible from his residence in Toulouse, Could he sue in France?
Jääskinen AG distinguished between two different infringements – both with ample
reference to previous case-law. Firstly, for reproduction rights, he suggested the locus damni
is the same as the locus delicti commissi: for there is no third party involved. In the case at
issue, this leads to both the UK (were the songs were copied on a host server) and Austria
(where the copies were initially made) as having jurisdiction. Further, for distribution and
communication rights, the locus delicti commissi in the AG’s view, is the place where the
infringers are established: the place of upload of the online content, and the place where the
online offer of the CDs was decided. The locus damni is identified by the AG with reference
to L’Oreal for trademarks, and to Football Dataco126
for database rights.
The ‘targeting’ of consumers and the ‘focus’ of a website are determinant in the view
of the AG (in the case of diffuse focus and target, leading to limited jurisdiction per the
123
Case C-324/09 L’Oréal, [2011] ECR. I-6011. 124 L’Oréal and E-bay settled their dispute out off court in January 2014. Settlement is undisclosed. 125 Case C-173/11 Football Dataco, ECLI:EU:C:2012:642. ‘Article 7 of Directive 96/9/EC of the
European Parliament and of the Council of 11 March 1996 on the legal protection of databases must
be interpreted as meaning that the sending by one person, by means of a web server located in Member
State A, of data previously uploaded by that person from a database protected by the sui generis right
under that directive to the computer of another person located in Member State B, at that person’s
request, for the purpose of storage in that computer’s memory and display on its screen, constitutes an
act of ‘re-utilisation’ of the data by the person sending it. That act takes place, at least, in Member
State B, where there is evidence from which it may be concluded that the act discloses an intention on
the part of the person performing the act to target members of the public in Member State B, which is
for the national court to assess.’ 126
Note 125 above.
22
CJEU’s Shevill rule: courts then have jurisdiction only for the damage occurred on that
territory). Mere accessibility of a site, ought not to be withheld in the view of the AG.
The CJEU however did not withhold 'focus and target' of the website as a criterion for
jurisdiction. '(T)he possibility of obtaining a reproduction of the work to which the rights
relied on by the defendant pertain from an internet site accessible within the jurisdiction of
the court seised' (emphasis added) suffices. However if locus damni is the only jurisdictional
ground for that Member State, that court, per the Shevill rule, only has jurisdiction to
adjudicate on the damage caused in that Member State.
Similarly, in customs cases, the CJEU has held that that the mere acquisition of a good by a
person domiciled in an EU Member State, suffices to trigger the application of the EU
Customs Regulation's provisions on counterfeit and pirated goods. It is not necessary, in
addition, for the goods at issue to have been the subject, prior to the sale, of an offer for sale
or advertising targeting consumers of that State.127
The patchwork of jurisdictional triggers is not properly explained by the CJEU.
II.3. Application in Google Spain
In Google Spain Jääskinen AG employed the notion ‘targeted at’ and ‘oriented at’, to
establish jurisdiction in the context of the EU’s data protection Directive.128 He supplemented
this with what one could call an economic criterion: namely the business model of the
company concerned.
As summarised by the AG, according to Article 4(1) of the Directive, the primary factor
that gives rise to the territorial applicability of the national data protection legislation is the
processing of personal data carried out in the context of the activities of an establishment of
the controller on the territory of the Member State. Further, when a controller is not
established on EU territory but uses means or equipment situated on the territory of the
Member State for processing of personal data, the legislation of that Member State applies
unless such equipment or means is used only for purposes of transit through the territory of
the EU. The territorial scope of application of the Directive and the national implementing
legislation is triggered therefore either by the location of the establishment of the controller,
or the location of the means or equipment being used when the controller is established
outside the EEA.
Nationality or place of habitual residence of data subjects is not decisive, nor is the
physical location of the personal data - at least not in the current versions of the Directive.
The AG points out that in future legislation relevant targeting of individuals could be taken
into account in relation to controllers not established in the EU. Such an approach, the AG
then notes, attaching the territorial applicability of EU legislation to the targeted public, is
consistent with the Court’s case-law on the applicability of the e-commerce Directive
2000/31, the Brussels I Regulation and Directive 2001/29, the on copyright and related rights
in the information society to cross-border situations. Again, though, it is not a criterion in the
current version of the data protection Directive, with respect to providers established outside
of the EU.
The AG turns to the business model of a company to assist him in establishing applicability
of the Directive for the case at issue, where Google (domiciled in California) does have
127 Case C-98/13 Martin Blomqvist v Rolex, ECLI:EU:C:2014:55. 128
Directive 95/46, [1995] OJ L281/31.
23
establishments in the EU (the establishment of the controller therefore being the trigger), as
well as at least two known data centres:
'Google Inc. is a Californian firm with subsidiaries in various EU Member States. Its
European operations are to a certain extent coordinated by its Irish subsidiary. It currently
has data centres at least in Belgium and Finland. Information on the exact geographical
location of the functions relating to its search engine is not made public. Google claims
that no processing of personal data relating to its search engine takes place in Spain.
Google Spain acts as commercial representative of Google for its advertising functions. In
this capacity is has taken responsibility for the processing of personal data relating to its
Spanish advertising customers. Google denies that its search engine performs any
operations on the host servers of the source web pages, or that it collects information by
means of cookies of non registered users of its search engine.' (at 62).
'In my opinion the Court should approach the question of territorial applicability from the
perspective of the business model of internet search engine service providers. This, as I
have mentioned, normally relies on keyword advertising which is the source of income and,
as such, the economic raison d’être for the provision of a free information location tool in
the form of a search engine. The entity in charge of keyword advertising (called
‘referencing service provider’ in the Court’s case-law) is linked to the internet search
engine. This entity needs presence on national advertising markets. For this reason Google
has established subsidiaries in many Member States which clearly constitute
establishments within the meaning of Article 4(1)(a) of the Directive. It also provides
national web domains such as google.es or google.fi. The activity of the search engine
takes this national diversification into account in various ways relating to the display of the
search results because the normal financing model of keyword advertising follows the pay-
per-click principle.' (...) 'In conclusion, processing of personal data takes place within the
context of a controller’s establishment if that establishment acts as the bridge for the
referencing service to the advertising market of that Member State, even if the technical
data processing operations are situated in other Member States or third countries.' (...)
'For this reason, I propose that the Court should answer the first group of preliminary
questions in the sense that processing of personal data is carried out in the context of the
activities of an ‘establishment’ of the controller within the meaning of Article 4(1)(a) of the
Directive when the undertaking providing the search engine sets up in a Member State for
the purpose of promoting and selling advertising space on the search engine, an office or
subsidiary which orientates its activity towards the inhabitants of that State.' [footnotes
omitted]
The CJEU broadly stood with the AG’s view. The referring court had stated that Google
Search is operated and managed by Google Inc. and that it has not been established that
Google Spain carries out in Spain an activity directly linked to the indexing or storage of
information or data contained on third parties’ websites. Nevertheless, according to the
referring court, the promotion and sale of advertising space, which Google Spain attends to in
respect of Spain, constitutes the bulk of the Google group’s commercial activity and may be
regarded as closely linked to Google Search.
The CJEU notes that Google Spain engages in the effective and real exercise of
activity through stable arrangements in Spain. As it moreover has separate legal personality, it
constitutes a subsidiary of Google Inc. on Spanish territory and, therefore, an ‘establishment’
within the meaning of Article 4(1)(a) of Directive 95/46. However, is the processing of
personal data by the controller ‘carried out in the context of the activities’ of an establishment
24
of the controller on the territory of a Member State (necessary to trigger application of the
Directive)? Google Spain and Google Inc. disputed that this is the case since the processing of
personal data at issue in the main proceedings is carried out exclusively by Google Inc., which
operates Google Search without any intervention on the part of Google Spain; the latter’s
activity is limited to providing support to the Google group’s advertising activity which is
separate from its search engine service.
The Court disagreed: Article 4(1)(a) of Directive 95/46 does not require the processing
of personal data in question to be carried out ‘by’ the establishment concerned itself, but only
that it be carried out ‘in the context of the activities’ of the establishment (at 52): that is the
case if the latter is intended to promote and sell, in that Member State, advertising space
offered by the search engine which serves to make the service offered by that engine
profitable (at 55). The very display of personal data on a search results page constitutes
processing of such data. Since that display of results is accompanied, on the same page, by the
display of advertising linked to the search terms, it is clear in the view of the Court that the
processing of personal data in question is carried out in the context of the commercial and
advertising activity of the controller’s establishment on the territory of a Member State, in this
instance Spanish territory (at 57).
This view confirms broadly the AG's use of Google's 'business model' as a jurisdictional
trigger. It is undoubtedly an application of the (territorial) effects doctrine,129 linked to the
‘implementation’ of activities contrary to EU law on EU territory, and /or to the need to
protect EU citizens’ privacy.
II.4 In the meantime, elsewhere: The Safari users case and Align Technology.
An important case on the territorial scope of EU /national privacy law and the co-inciding
jurisdiction, at the time of writing was making its way through the UK courts. In Vidal Hall et
al v Google Inc.130 (the so-called ‘Safari users’ case) the High Court assessed its jurisdiction
against Google Inc. and found no reason to apply forum non conveniens (a technique of
private international law which allows a court to dismiss its jurisdiction otherwise properly
established, if it considers there is an alternative jurisdiction which would be better suited to
take the case). Google UK was not involved, the aforementioned Brussels I Regulation does
not apply.
Claimants allege that Google misused their private information, and acted in breach of
confidence, and/or in breach of the statutory duties under the Data Protection Act 1998 s.4(4)
("the DPA"), by tracking and collating, without the claimants' consent or knowledge,
information relating to the claimants' internet usage on the Apple Safari internet browser.
Applying the Spiliada criteria on forum non conveniens, Tugendhat J first of all dismissed the
relevance of the location of documents:
129 In this sense see also C. Ryngaert, note 9 above, p.78 ff, suggesting that while ‘technically’ the
CJEU’ finding is an application of the effects doctrine, in reality it is what the author calls an
application of the ‘de-territorialized proximity’ principle. Similarly, B. van Alsenoy and M.
Koekkoek, Internet and jurisdiction after Google Spain: the extra-territorial reach of the EU’s ‘right
to be forgotten, Leuven Centre for Global Governance Studies Working paper no. 152 –March 2015,
available at http://ow.ly/TaZpE. Last accessed 8 October 2015, p.13; D.J.B. Svantesson, ‘the
extraterritoriality of EU data privacy laws – Its theoretical justification and its practical effect on US
businesses’, Stanford Journal of International Law, 2013, 53-117. 130
Judith Vidall-Hall, Robert Hann and Marc Bradshaw v Google Inc., [2014] EWHC 13 (QB).
25
'In any event, in the world in which Google Inc. operates, the location of documents is
likely to be insignificant, since they are likely to be in electronic form, accessible from
anywhere in the world. ' 'By contrast, the focus of attention is likely to be on the
damage that each Claimant claims to have suffered. They are individuals resident
here, for whom bringing proceedings in the USA would be likely to be very
burdensome (Google Inc. has not suggested which state would be the appropriate
one). The issues of English law raised by Google Inc. are complicated ones, and in a
developing area. If an American court had to resolve these issues no doubt it could do
so, aided by expert evidence on English law. But that would be costly for all parties,
and it would be better for all parties that the issues of English law be resolved by an
English court, with the usual right of appeal, which would not be available if the
issues were resolved by an American court deciding English law as a question of fact.'
(at 132-233)
Forum non conveniens therefore was dismissed - the case can go ahead. Tugendhat J’s
reference to ‘the world in which Google Inc. operates’, is reminiscent of the business model
criterion suggested by the AG in Google Spain.
The Court of Appeal confirmed the High Court ruling on 27 March 2015,131 and the
Supreme Court granted leave to appeal on 28 July 2015.
In the United States, in similar developments (although under appeal at the time of writing),
the US International Trade Commission held in re Align Technology Inc.,132
that digital
import suffices for its jurisdiction in patent infringement cases. The companies violating
Align Technology's patents were based in Pakistan, without domestic residence of any kind in
the United States. The data were then used by US-based dental practices to produce the braces
concerned. The foreign residence of the patent infringers fed into arguments made by
defendants that a cease and desist order by the ITC would be very difficult to enforce, an
argument against upholding jurisdiction in the first place. The ITC was not swayed. The case
is under appeal.
Part III. The territorial reach of the right to be forgotten.
The analysis above shows, in summary, that outside the context of criminal law (where the
nationality criterion plays an important role), jurisdiction in public international law is in large
part determined by various forms and shapes of the effects doctrine. In private international
law, the advent of the internet has, specifically in the EU, created a myriad of jurisdictional
triggers with varying degrees of active targeting by business.
Let’s turn now to the action which triggered current article: the insistence by European data
protection authorities (that term encompasses courts and regulatory authorities alike) that
Google remove search results not just from websites registered to a European domain name,
but also to Google.com. It is important to point out at the outset that an extension of the EU’s
RTBF ruling along the lines suggested, is a form of ‘prerogative’ or ‘enforcement’
jurisdiction (for the terminology, see Part I above). There is protracted debate on what
constitures the ‘home’ jurisdiction of the .com website.133
It is often suggested, for instance,
131
[2015] EWCA Civ 311. 132
337-TA-833. 133 See also similarly Landgericht Köln, 16 September 2015, 28 O 14/14, X and Y v Google Inc and
Google Germany GmbH, in which the court emphasises that Google.com is the search engine
26
that it is under US jurisdiction because the registry for it, Verisign Inc., is based in the United
States (and effectively took over that task from the US Ministry of Defence). Obliging Google
Inc. to remove results from its .com website therefore, it is argued, conflicts with United
States jurisdiction over the registry.
In discussing the territorial reach of Google Spain, discussion in scholarship so far
overwhelmingly focuses on either prescriptive and /or adjudicative jurisdiction. It often
assumes that from the former two, prerogative jurisdiction automatically follows. This view
essentially posits that the various types of jurisdiction must run in parallel, with prerogative
jurisdiction being subordinate to the first two types of jurisdiction. A legitimate exercise of
prescriptive and adjudicative jurisdiction, it is then assumed, must necessarily be followed by
prerogative jurisdiction. The implied proposition is that without the third leg of the
jurisdictional exercise, the first two legs become nugatory.
In essence, this view stops seeing enforcement jurisdiction as a separate part of the
jurisdiction analysis: ‘extraterritorial’ enforcement action must follow necessarily from
‘extraterritorial’ prospective and adjudicative jurisdiction. Particularly applied to the internet,
this approach appeals by its simplicity. Geographical filtering, for instance,134
is easily
circumvented by the use of proxy servers, ‘hence’, it is suggested, the instructing court needs
to throw a much wider (internet) net.
In reality, however, sidestepping enforcement as a separate part of the jurisdictional exercise,
reflects neither public international law on the issue, nor indeed the CJEU approach of
adjudication.
In the aforementioned study by the European Court of Human rights’ research
division, it is pointed out that relevant case-law of that Court defines enforcement jurisdiction
in the context of the internet geographically.135
In Google Spain of course the CJEU itself is utterly silent on the issue of enforcement
or ‘implementation’.136
In other areas it has been more explicit on the matter.
For instance in the context of the EU’s Insolvency Regulation,137
in Schmid v
Hertel,138
Schmid was the German liquidator of the debtor’s assets, appointed in the
insolvency proceedings opened in her regard in Germany on 4 May 2007. The defendant, Ms
Hertel, resides in Switzerland. Mr Schmid brought an action against Ms Hertel before the
German courts to have a transaction set aside, seeking to recover a sum plus interest as part of
the debtor’s estate. In Case C-339/07 Seagon139
the CJEU had ruled that the courts of the
Member State within the territory of which insolvency proceedings have been opened have
jurisdiction to decide an action to set a transaction aside (actio pauliana) that is brought
against a person whose registered office is in another Member State. However does Seagon
maintained by Google for the ‘region of the United States of America’ (p.16 of the judgment – my
translation).. 134 Blocking access to data for users within a particular geographical area, such as in the Yahoo
litigation before the courts at France (Tribunal de Grande Instance de Paris, association Unions des
Etudiants Juifs de France and aor v Yahoo and aor, RG:00/05308). 135 Note 10 above, p.6, with reference in particular to Perrin v United Kingdom, no.5446/03, ECHR
2005-XI. 136 C. Ryngaert, note 9 above, p.79: the CJEU ‘remained silent’ on the issue of implementation. 137 Regulation 1346/2000, [2000] OJ L160/1. To be replaced by Regulation 2015/848, [2015] OJ
L141/19. 138
Case C/382/12 Ralph Schmid v Lilly Hertel, ECLI:EU:C:2014:6. Later confirmed in Case C-295/13
H v HK, ECLI:EU:C:2014:2410. 139
Case C-339/07 Christopher Seagon v Deko Marty Belgium NV, [2009] ECR I-767.
27
also apply where insolvency proceedings have been opened in a Member State, but the place
of residence or registered office of the person against whom the action to have a transaction
set aside is brought is not in a Member State, but in a third country?
The CJEU held that it does. It was rather realistic with respect to the potential
recognition and enforcement problems associated with judgments under the Regulation held
against those not domiciled in the EU, at 37: the fact that the provisions of the Regulation
concerning recognition and enforcement of judgments delivered by the court which has
opened the insolvency proceedings cannot bind third countries, does not preclude the
application of the rule governing jurisdiction. The Court very clearly distinguishes
adjudicative jurisdiction from enforcement. That enforcement may be impossible, should not
preclude jurisdiction. The mirror image of that is that exercise of jurisdiction, does not
guarantee effectiveness of enforcement.
Consequently in Google Spain, too, the fact that the CJEU as summarised above,
withholds both prescriptive and adjudicative jurisdiction vis-à-vis Google Inc., does not imply
that it also withholds enforcement jurisdiction by the EU on a global basis (which would be
the case if it were to force Google to remove the search results from its .com website).
Relevant national case-law since has emphasised that the Google Spain judgment does not
provide authority for an extension of enforcement jurisdiction outside of the EU. The
Landgericht Köln in my view justifiably withheld enforcement jurisdiction in a libel case only
against Google.de for that is the website aimed at the German market. It rejected extension of
the removal order vis-à-vis Google.com, in spite of a possibility for German residents to reach
Google.com, because that service is not intended for the German speaking area and anyone
wanting to reach it, has to do so intentionally.140
In Zuchtvieh-Export, precited,141
the point of departure being in the EU was enough
for the CJEU to withhold prescriptive jurisdiction for the transport concerned, even outside of
the EU. However the CJEU, more head-on than in Schmid v Hertel, incorporates the
difficulties in enforcement, in the manner in which authorities of EU Member States are to
exercise their jurisdiction:
Should it nevertheless be the case that the law or administrative practice of a third
country through which the transport will transit verifiably and definitely precludes full
compliance with the technical rules of that regulation, the margin of discretion
conferred on the competent authority of the place of departure empowers it to accept
realistic planning for transport which, in the light inter alia of the means of transport
used and the journey arrangements made, indicates that the planned transport will
safeguard the welfare of the animals at a level equivalent to those technical rules. (at
54)
This instruction suggests both that Member States authorities may accept realistic planning by
private operators when these have to take account of absence of co-operation by non-EU
authorities, and that the actions by non-EU authorities that do co-operate, may flexibly be
taken into account even if such action does not quite live up to the EU standard concerned. At
any rate, it accepts that while the EU may hold that its transporters operating on its territory
have to abide by EU law even outside the EU’s borders, the enforcement of that prescriptive
jurisdiction has to take account of third States’ sovereign powers on their territory.
140 Note 133 above. 141
Note 105 above.
28
‘Worldwide’ enforcement of the Google Spain judgment has recently been suggested to have
been supported by precedent in Canada. In Equustek Solutions Inc. v Google Inc.142
the Court
of Appeal for British Columbia upheld an interlocutory injunction made against Google Inc.
in litigation between Equustek and Datalink. The latter had allegedly counterfeited the
former’s product. The injunction was meant to torpedo the defendant’s sale of the goods over
the internet. Groberman J argued that jurisdiction for BC courts, the injunction, and the strong
incentive to abide by it using contempt of court, should all be upheld. The Court of Appeal
looked specifically at comity, holding (at 92) that ‘where there is a realistic possibility that an
order with extraterritorial effect may offend another state’s core values, the order should not
be made’. In the case at issue, no such offense was said to be present, in particular because the
case concerned a violation of intellectual property rights which are near-universally
recognised as being of great importance to the world’s economic order.
Indeed for that reason the same judge who issued the injunction in Equustek, refused
one a little later in Niemela v Malamas (with Google Inc. again as a non-party, involved in the
interlocutory proceedings).143
The injunction in that case was requested by a lawyer, suing for
defamation. Fenlon J refused to grant the injunction against Google, among others because (at
33-34)
[33] (…) the Court is reluctant to make an order that cannot be complied with. Mr. Niemela
acknowledges that Google is not able to comply with an order compelling it to block
defamatory search results in the United States. Two federal statutes, the Communications
Decency Act of 1996, 47 USC (1996), and the Securing the Protection of our Enduring and
Established Constitutional Heritage (SPEECH) Act, 28 USC (2010), protect internet providers
such as Google and block enforcement orders that would infringe on the First Amendment
right to free speech.
[34] While United States courts will generally recognize and enforce foreign judgments, they
will not do so if enforcement of the foreign court’s order would violate the corporation’s
constitutional rights to free speech: Yahoo! Inc. v. La Ligue Contre Le Racisme et
L’Antisemitisme, 169 F Supp 2d 1181 (ND Cal 2001) at 1192-1193, rev’d on other grounds
379 F 3d 1120 (9th Cir 2004).
Judgment in Niemela, I would suggest, is an application of comity. Enforcement should not be
designed extraterritorially if it has no chance of actually being carried out. Some might argue
of course that the expected refusal of enforcement by US courts rather than restricts, actually
boost foreign (in the case at issue Canadian) courts’ power to enforce extraterritorially. This
implies that if the court order is going to be legitimately ignored abroad anyway, there is no
harm in issuing it. This argument however ignores the fact that in not abiding by the order,
companies will inevitably be in contempt of court.
Likewise, in a case such as Google Spain, enforcement of a .com removal order from an EU
Member State, in the United States, is generally suggested as problematic in view of US
constitutional rights of free speech. In my view for the EU, or an EU Member State, to ignore
challenging issues at the enforcement level when issuing executive orders or judgments,
would at the very least be a provocation of or challenge to comity. Such challenge in my view
would be out of character with the EU’s general approach to same, as illustrated by, for
instance, the application of EU competition law (and ensuing Agreements between the EU
and the US), referred to above, and the aforementioned EU’s retreat from full enforcement of
relevant provisions of the EU’s Emissions Trading Scheme, to companies located outside the
EU.
142 Equustek Solutions Inc. v Google Inc., 2015 BCCA 265. 143
Niemela v Malamas and Niemela v Google Inc., 2015 BCSC 1024 (16 June 2015).
29
It is worth pointing out that in the European legal system, too, the right to receive
information has recently been interpreted very broadly.144
Finally, the CJEU insists on internal limitations to enforcement. In Weltimmo,145
held on 1
October 2015, the Court discussed the scope of national supervisory authority’s power in the
context of Directive 95/46,146
the same directive which was at issue in Google Spain. The
Court held
Where the supervisory authority of a Member State, to which complaints have been
submitted in accordance with Article 28(4) of Directive 95/46, reaches the conclusion
that the law applicable to the processing of the personal data concerned is not the law
of that Member State, but the law of another Member State, Article 28(1), (3) and (6)
of that directive must be interpreted as meaning that that supervisory authority will be
able to exercise the effective powers of intervention conferred on it in accordance with
Article 28(3) of that directive only within the territory of its own Member State.
Accordingly, it cannot impose penalties on the basis of the law of that Member State
on the controller with respect to the processing of those data who is not established in
that territory, but should, in accordance with Article 28(6) of that directive, request
the supervisory authority within the Member State whose law is applicable to act.
In other words, the supervisory authority in a Member State can examine the complaints it
receives even if the law that applies to the data processing is the law of another Member State.
However the scope of its sanctioning power is limited by its national borders. In my view the
EU would not act in accordance with international principles of comity, explained above, if it
were territorially to restrict national action in the event of internal EU situations, while not
imposing such restriction ex-EU.
Conclusion
Worldwide enforcement of the Google Spain judgment and of the so-called ‘right to be
forgotten’ contained in it, is not sanctioned by the judgment itself. Neither has relevant
national case-law since, upheld it. Such enforcement would sit uneasily with established
principles of international (enforcement) jurisdiction. It would also be out of character with
the EU’s approach to international comity, illustrated in other areas of the law, and with the
Court of Justice’s recognition of limitations to enforcement jurisdiction between data
protection authorities in the EU itself.
Lest the international community, bilaterally or multilaterally, recognise an extraterritorial
enforcement of the right (which extension to the .com domain area in my view would imply),
for instance via multilateral agreements on data protection, such enforcement in my view is
not supported by the current state of either public or private international law.
144 See in particular European Court of Human rights case-law, referenced in the 2011 study (note 10
above), in particular p.22 ff. 145
Case C-230/14 Weltimmo s.r.o. v Nemzeti Adatvédelmi és Információszabadság Hatóság,
ECLI:EU:C:2015:639. 146
Note 128 above.