The Court of Justice of the European Union (hereinafter 'CJEU') has recently delivered two judgements which albeit addressing separate points of law, in practical terms are seemingly conflicting.
In Google France/ CNIL (Case C-507/17) (hereinafter 'Google France) delivered on the 24th September 2019, the CJEU considered the right to be forgotten in the context of de-referencing requests and ruled that a search engine is not obliged to carry out de-referencing from all worldwide versions of its platforms when ordered to carry out de-referencing by an EU Member State, and is only obliged to carry out de-referencing from those versions of its platforms corresponding to all the EU Member State.
However, on the 3rd of October 2019 and therefore just nine days later, the CJEU ruled in Facebook Ireland/ Eva Glawischnig-Piesczek (Case C-18/18) (hereinafter Facebook Ireland), in the context of take-down of online defamatory content, that Member States can decide themselves whether it is appropriate to give worldwide effect to injunctions stipulating the take down of illegal defamatory content from host provider platforms.
Essentially, in Google France the CJEU ruled that an injunction for de-referencing links on Google search results can only have an EU wide effect, whilst in Facebook Ireland, an injunction could, at the discretion of Member States and in adherence with the standards of international law, potentially have a worldwide effect. As such, the CJEU is seemingly giving less standing in reach to what ultimately is a human right (privacy). Conflict in the reach over internet and cross-border regulation can thus be observed from the conclusions of these two judgements.
In Google France the CJEU considered that the balance between the level of interest that the public has in accessing information and the interest of data subjects in protecting their personal data may vary across jurisdictions. Although such arguments may go against the idea of worldwide de-referencing orders, one must consider that in Google France the CJEU was asked to interpret mainly proviso 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 or Article 17 of Regulation 2016/6791. To this end, the CJEU stated that it is not apparent from the interpretation of such provisos, that they were intended to have effect beyond the territory of the Member States, but only to discourage persons from searching for the de-referenced material.
On the other hand, in Facebook Ireland, the CJEU, on the basis of the interpretation of the E-Commerce Directive2 ruled that Member States have the freedom to allow blocking orders to have a worldwide effect.3 In this case, the merits revolved around content which had already been ruled to be defamatory. Moreover, the CJEU noted that EU Member States must take international law into account if they are to adopt measures that produce a worldwide effect. In this case no further guidance was given by the CJEU on how an injunction with worldwide effect would be reconciled with principles of public and private international law. As such, the CJEU was asked to interpret article 18(1) of the E-Commerce Directive, which according to the CJEU creates no limitation on the effect of injunctions ordered by national courts.
It should also be noted, that in Facebook Ireland AG Szpunar opined that extra-territorial effects of injunctions that impose a worldwide obligation for removal should be assessed in light of public and private international law rather than EU law. In public international law, one must take into consideration the principles of comity and non-interference which means that countries mutually recognize each other's laws and judicial acts. In practise, an injunction for cross-border removal should therefore not interfere with the laws of another country. This was also the argument made in Google France by Google's lawyers and accepted by the CJEU as they argued that a right to de-reference without geographical limitation would violate the principles of comity and non-interference of third countries.
At face value, it is apparent that the two judgements conflict with one another. Based on the CJEU's rulings, we essentially have a situation wherein an injunction to de-reference links, based on data protection law, can only have EU-wide effect, while an injunction to take down illegal content, based on the E-Commerce Directive, can have world-wide effect. Therefore, the two cases arrive to a differing territorial scope of application despite that the limited differences in practical terms when it comes to take-down of content as opposed to (take-down) of referencing (with the content remaining available). In particular, this approach seems inconsistent especially bearing in mind the intertwining nature of the two when take-down is requested.
1 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
2 Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce')
3 Svantesson, D., Grading AG Szpunar's Opinion in Case C-18/18 – A Caution Against Worldwide Content Blocking As Default (June 14, 2019). Available at SSRN: https://ssrn.com/abstract=3404385.
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