Readers of this blog will already be familiar with the ways in which data protection legislation is assuming increasing importance in both the media and technology worlds. Certainly if there were any doubt as to the relevance of this legislation to the way in which both the media and technology companies operate, that doubt was firmly laid to rest following the highly controversial judgment of the CJEU in Google Spain. That judgment has led to extensive debates about the so-called right to be forgotten (as to which see here the recent ITN debate on Google Spain, in which I participated along withthe Information Commissioner and Google’s Spain’s Director of Communications for EMEA). However, the judgment was important, not only because of what it said about the right to be forgotten, but also because of the way in which it managed, in effect, to bring the data processing activities of a large US-based corporation, namely Google Inc, within the territorial scope of the EU Directive. In short, the Court held that personal data which is processed by a search engine operated by a US company is still protected under the Directive, particularly because the search engine is itself commercially supported by advertising which had been sold within Europe by EU-based subsidiary companies, including Google Spain.
The CJEU’s judgment in Google Spain has now been specifically relied upon in English High Court proceedings to support an application for service out of the jurisdiction, on Google Inc, of a set of proceedings brought under the Data Protection Act 1998 (DPA): Hegglin v Google Inc & Ors.
According to the Lawtel case report of the Hegglin judgment, Mr Hegglin is an individual who is resident in Hong Kong, but has previously lived in and retained closed connections with the UK. An anonymous person posted abusive and defamatory material concerning Mr Hegglin on a number of websites which were then indexed on Google. Mr Hegglin went on to bring proceedings against Google Inc under the DPA, including claims under s. 10 (right to prevent processing likely to cause substantial damage or distress) and s. 14 (right to rectification). He sought an injunction requiring Google Inc to block specific sites containing the allegations and a Norwich Pharmacal order was made. Relying specifically on Google Spain, Bean J held that service of the DPA proceedings could properly be effected on Google Inc. He also held that England was the appropriate forum for the dispute and was also suitable for the trial, particularly as the defamatory remarks risked damage to Mr Hegglin’s reputation in England.
Of course, this is not the first time that the court has permitted proceedings to be served on Google Inc under the DPA. In January 2014, the High Court held that proceedings for compensation under s. 13 DPA could properly be served on Google Inc in connection with its act of collating data from Google-users based in the UK: see Vidal-Hall v Google Inc [2014] EWHC 13 (QB) (which you can read about here). However importantly, in Vidal-Hall, which was decided before Google Spain, Google Inc accepted that it was a data controller in respect of the data originating from the claimants’ browsers. It merely disputed that the data in question amounted to ‘personal data’ for the purposes of s. 1 (see paras. 121-122 of the judgment). Thus, territorial jurisdiction was not ostensibly in issue in Vidal-Hall.
What remains to be seen now is how far the Google Spain judgment will now also be relied upon as against other corporations which are based outside the EU but which use EU subsidiaries to provide commercial support for their activities.
Anya Proops