'Jurisdiction, Applicable Law and Beyond after Google Spain': Brendan Van Alsenoy

I'm going to start by also thanking David and congratulating all the organizers of this panel for this very stimulating event in this really, really wonderful location. So that's just the academic way of saying I envy you, David.

I’m Brendan Van Alsenoy — I’m not Marieke Koekkoek, as I hope you may have guessed. What I’m going to present today is really a product of our joint work and I wanted to make sure that she got due credit for it.

So when we think about internet and jurisdiction after Google Spain, there’s really two sets of jurisdictional questions that come up. The first is the one about prescriptive and adjudicated jurisdiction, and that's very much what Johannes Caspar was just talking about. So I'm not going to get into that here. What I am going to talk about it is the geographical scope of the implementation. So should a search engine provider, when it decides that a request to be delisted should be granted, how far should its implementation stretch? Should it implement only local search results or should it extend more widely, more globally? So, as we heard today, Google's current approach is to go simply local - it's mainly a domain-based approach. If you type in google.com, they will gently steer you back towards whatever is the appropriate domain name for use - so here it would be on Google UK. But at the bottom of the webpage, there is still this button that suggests you want to switch back to google.com.

One of the main concerns with the Data Protection Authorities about this approach is that, well, if you make it that easy, then it's not really going to offer much effective protection. So the Article 29 Working Party has come out and said: well, actually you have to implement a ruling on all relevant domains, including .com. Otherwise it's simply not effective. Now, the critics - there's a lot of criticism over this position because, you know, isn't this just the EU imposing its values onto non-EU countries? I mean, this right to be forgotten is found by the European Court of Justice - should we actually be wanting the court's ruling to stretch that far? So the debate so far has really been quite polarized. It’s been kind of simplistic, and so I apologize, my next slide was also going to be a little bit simplified in portraying the two positions.

So the first side is what I would call 'Team Global'. They advocate for global implementation of the ruling, like the Article 29 Working Party, to say that otherwise it’s not effective and complete, and anything else is too easy to circumvent, right?

Then there’s the opponents, call them 'Team Local'. They would like to see search results only modified in the EU; either through the domain base approach or by detecting the geographical origin of the search query, and tailor results appropriately. They like to talk about the power of the default.

We heard today, one of the statistics that Google likes to present is that ninety-five percent of its users, if they type in google.com, they get back sent back to their local version of Google and they’ll stay there. Now, interestingly, this statistic concerns all of Google searches - it does not just concern name-based searches, and as you also know, at the bottom if you do a name search within the EU on a person, it will show: some results may have been removed. It won't take you very long to catch on and go to another site. The other argument is the lowest common denominator argument where they say: well, you know, the EU, it’s a very democratic and very enlightened system of government, and so, you know, we might recognize that it wouldn't be the end of the world or the end of the Internet if it expands beyond just the EU. But what about if other states start to do the same thing. What if North Korea decided that, you know, every link to its supreme leader should be taken down?

The sad thing about polarizing the debate the way I just did it is that actually both sides have valid points, and both sides have something to learn from each other. What we did in our paper was try to analyse from the perspective of public international law which side is right and which arguments could be made in favour of either approach.

So under public international law, territoriality is the primary basis for jurisdiction. A basic function of a sovereign state is to determine by law what forms of speech and conduct are acceptable within its borders. A corollary of this principle of territoriality is that you have to respect other states also as being sovereigns within their borders, right? Do unto others as you would wish they’d do unto you. But still even though this is the main foundation of the public international law jurisdiction, it's not the sole foundation. After a while, people realize that activities that take place in State A impact interests in State B. So, particularly in competition manners, we have this thing called the 'effects doctrine', which says if there is a substantial effect within the state's territory, it can actually justify regulation of activity which is taking place abroad. Actually, I think that’s that very same principle that underlies the application of Article 4(1)(a) in the Google Spain case; there's talk of an establishment but really, the connection, the territorial connection that the establishment offers is just virtual. I mean the processing - it's admitted - is taking place mostly outside of the EU territory.

So a problem with a concept like 'effects' is like, when does a particular activity taking place in another state affect your state? Could it be just any effect? Does it have to be a substantial effect? How do we determine a substantial effect? What if it still impacts the interests of other states? And so then people, the international law scholars, they come up with this additional concept which is reasonableness. You should be reasonable. Well that's great - that's a very clear standard. I think everybody likes reasonableness. Then people tried to go even further and say, well it’s not just reasonableness - it’s interest balancing. You have to actually weigh the one state's underlying policy objectives and its interest in realizing these policy objectives against the interests that the other state which might have a competing interest.

So trying to come up with something that's a little bit more tangible than just reasonableness and interest balancing, we've tried to come up with a couple of criteria which could help to determine - not criteria to be implemented by a search engine - but criteria which actually help to make sense as to whether or not, with the Article 29 Working Party or the French Data Protection Authority later says you have to implement globally, whether or not they are overstepping their bounds from the perspective of public international law.

So a first possible criteria is the risk of adverse impact in foreign states. If we think about the Costeja case, in particular, the chances that somebody is really going to be adversely affected by the fact that they can’t find that information of a bankruptcy which happened a long time ago is really quite limited. We should look at what the purpose the delisting is, and by this I mean the underlying policy objective. You could argue that, well, it's always going to be the best achievement of the policy objective if you go for global implementation, but there are actually precedents. It seems that Google has managed to convince the European Commission in one of its competition cases that a domain-based approach is actually sufficient to give effect.

But if you compare, let’s say the competition area versus the data protection area, in the competition area there are actually other thresholds — there’s substantial market power - there’s other, additional standards which come into play to determine what’s the result that needs to be achieved in order to ensure fair competition on the market. You might not have that with protection of fundamental rights.
It also has to do a lot with what the perspective is of your attacker. Are you worried that the nosy neighbour next door is going to run a name search on you, and she's going to find some unflattering piece of information? Or are you concerned about the prospective employer, who you know, by now very well knows that search results might have been removed from their search results, but can switch to google.com to get the complete picture. Degree of harmonization - I mean, one argument that's often thrown around is when Google implement DMCA, implements copyright removal, it does this globally. Why not do the same for privacy, right? I think, I wouldn’t say that copyright is one hundred percent harmonized, but I would probably accept the proposition that there's a greater degree of harmonization in the copyright sphere than there is in the privacy versus freedom of expression sphere. If there's any copyright lawyer here, you'll probably beat me up afterwards for making this statement.

The last but not least is actually to look at territorial nexi. Who is the speaker? What's his nationality? Where is he based? Where is he? Where are the servers hosted? One of the examples I like to use is to compare the case of Mr. Costeja Gonzalez against The Interview, right? If we look at the case of Mr. Costeja, we have a Spanish citizen, a piece of content information that was put forth by a Spanish newspaper on a Spanish server, all very, very strong connections to Spanish territory. Now what if, you know, Google had an establishment in North Korea, and you know, the piece of content of The Interview was there, and they said okay well, look, you have an establishment, your search results place in the context of an activity of this establishment, and so we want you to take that down. Well then we would probably come up with a different analysis. We would realize that there’s a lot of people with a lot of different nationalities involved here. The movie is being produced by essentially an American company, there is no harmonization whatsoever around the world that you can talk about your supreme leader et cetera et cetera.

I'm running out of time so I'm going to finish up. The criticism - we’ve heard some this criticism with regard to this four-factor test. The first one is that it’s subjective: states are still going to interpret in their own light, as it suits them, because in the end what they really want to do is to enforce the laws as effectively as possible. We would submit it’s still better than the alternative - still better than just saying you don't have to come up with any justification, you have to take into account of any other state’s interests. Another one that we hear is that it adds more complexity, you know. There's another four-factor test amongst, you know, sixty different parameters and criteria just to decide if a right to, a request to be delisted should be granted, and now you're going to add four others? That's going to make things difficult.
That's why we actually understand the opinion of the Article 29 Working Party. They basically say, well look, if a person isn't even of local interest, if the person isn’t even of public interest within the EU, chances are that they’re not going to be so interesting for people in other countries. So the chances that somebody is actually going to suffer adverse impact of that search result not being available on a name search is quite small. It's probably also going to be the case that if this is local content, that there are other strong local territorial connection points, and so it’s easier to send the message that it should be global by default and perhaps only restricted to local by exception.

So, in conclusion, some case by case assessment will still be necessary. Bid for global justification is justified in many instances but not all. In the case of Google Spain, we would submit yes. In the case of Max Mosley, we would say probably not. You know, because there is a person of international interest and people in different countries, you know, head of an international organization, they might actually have a legitimate interest and see their search results affected in a real way. And then I would actually hope, that the search engine operators resist on implementing this globally on until we can get some further clarification on this on by the courts.