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, gavc@law.kuleuven.be

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.