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¿AN OMBUDSMAN FOR INTERNET?

¿AN OMBUDSMAN FOR INTERNET?

Consequences of a judgment of the European Court of Justice (*)

Dan Shefet

 

The debate on the Right to be Forgotten (“RTBF”) which started right after the Judgement from the European Court of Justice ( 13 May 2014) is getting increasingly emotional and political.

It raises questions like : Is the RTBF a human right ( to be universally recognised)  ?

How do we strike the balance between the RTBF and freedom of speech ?

What are the extraterritorial implications  ( reach of domestic judgements) ? 

These are the most pressing questions subject to debate on the international scene.

Actually one may analyse the true debate as a struggle for control over the Net; a struggle for cultural diversity and content regulation at large.

No wonder it gets emotional.

The decisions expected in the  French the case Google v. CNIL and the Canadian case  Google Inc. v. Equustek Solutions Inc., et al ) will hopefully provide some legal guidance and vindicate the Rule of Law.

Both of these cases deal with  the question of territorial reach of  judicial or administrative decisions- an issue which is becoming increasingly contentious  since it pits one state’s sovereignty directly against others.

In addition to state sovereignty is raises questions of freedom of speech protecting and recognition of cultural and regulatory differences in this regard.

Essentially the problem is a consequence of the fact that regulation of content in a given jurisdiction needs to include content hosted or  accessible outside that jurisdiction in order for the regulation to be effective: If a British court orders that a given web site or URL must be rendered inaccessible it serves no purpose if it remains accessible on other domains than “co.uk”.

Hence the question of global reach which essentially means that such regulation must include all domains and not only those subject to the jurisdiction under whose laws the decision is passed.

In France the case Google v. CNIL was due on December 2nd, but it has not come down yet. In this case Google objected to the imposition by the French DPA ( CNIL ) to globally dereference content and submitted the question of CNIL’s jurisdictional authority to the Conseil d’Etat ( Supreme Court on administrative matters).

I personally believe that the CE will submit a prejudicial question to the ECJ asking them to clarify the reach of the Right to be Forgotten Judgement (13.5.2014) and in particular its reference to “efficiency” ( the theory being that protection must be efficient and as a consequence worldwide).

We also await the judgement in the Equustek case before the Supreme Court in Canada.

That case was very recently tried ( Google Inc. v. Equustek Solutions Inc., et al  December 12th).

Even though the Canadian case is very important as to the proper delimitation of enforcement jurisdiction it will not have the same impact as the French case since it deals with Intellectual Property while the latter relates to personal integrity.

IP rights are more or less accepted all over the world (and in particular in the US) while personal integrity rights are much more a cultural phenomenon.

Unfortunately the  public debate on this extremely important question is not addressed at the level it deserves.

Jurisdiction on the internet is an issue much too important  to be addressed by emotional statements like “censorship” and “repression” or primitive rants against European values and in particular the analysis made in France of its rights as a sovereign state.

From a legal point of view international jurisdiction is typically divided into 3 categories: Legislative, adjudicatory and enforcement.

The practical problems are almost exclusively encountered in the last category and on the internet it is clearly here that we see conflicts.

No one – outside of the country in question – has a strong or even valid reason to object to its laws and decisions as long as they do not affect subjects in other countries directly and are the reflection of  democratic processes and decisions. This is the corner stone of State Sovereignty.

Mutual recognition of such cultural differences, decisions and legislative approaches is the very foundation of international law.

The problem with this principle is when applied to the internet that efficient enforcement of State laws entails a certain element of extraterritoriality.

Such enforcement may be facilitated or regulated by treaty cooperation allowing judgments passed in one country to be enforced in another – often  through a mutual recognition mechanism ( and sometimes “exequatur”).

In other instances extraterritorial enforcement is based on “comity”  which basically means that a country accepts to allow foreign decisions legal effect on its territory and provide enforcement assistance.

Given the nature of the internet enforcement will almost always be related to content regulation in some form or another and given the substantially different and to a large extent culturally determined approaches to such content regulation it tends to become highly emotional and even conflictual as against supra legislative norms ( like the First Amendment).

The conflict has indeed developed into one between a European protective approach and an American First Amendment standpoint.

CNIL’s position which is shared by other DPAs in Europe is one of efficient enforcement of its decisions protecting human integrity.In order to better understand the logic it should be understood that the position is limited to the right to be forgotten protection which excludes its application to content which is deemed important to the public (especially information of a political nature…).

The impact on free speech protection is therefore very limited.  It does not include information of importance to the democratic process.

On this particular point the debate is more or less obfuscated

Second CNILs position is one of enforcement based on the conscious and voluntary choice of industry. In the particular case it relates to Google, but of course the principle applies to all payers.

When a company decides to do business in another county no one would argue that it is only accountable to the laws of its country of origin.

Clearly an indefensible  theory.

The true theory obviously implies that when Google (or any other company) decides to set up a subsidiary, a branch , a rep office or just do business in a given jurisdiction it  must abide by the same laws as any other economic actor in that country.

The argument that France is imposing censorship by applying its own laws on the protection of human integrity in other countrifies is fallacious. Neither France nor any other country in the EU adopts such an attitude and it is regretful that serious legal theory should be ridiculed by omission of the facts.

The correct statement is that France imposes its laws as a sovereign state on any and all actors doing business on its territory.

Our American friends may hardly argue against that theory.

It is not the mere fact that content is accessible in France that allows the French DPA to prohibit it globally. The authority to regulate is based on Google’s presence in France ( not the accessibility of content)  and its de facto adoption of French law.

Nobody forces Google to do business in France.

They  are very welcome, but obviously in full compliance with French law.

The second point is that is  forgotten or omitted in the debate is that of  “reciprocity or consistency”: Even though the US Supreme Court has proven hesitant on a number of occasions to enforce laws extraterritorially Congress has not adopted the same attitude. We  need just be reminded of the Foreign Corrupt Practices Act. This Act applies worldwide and very often to cases that have little or no territorial attachment to the US. Add to this the fact that the FCPA involves criminal sanctions that far outweigh those of the DPAs’ powers.

Another example is that of financial regulations, compliance and boycotts where the “territorial attachment” amounts to clearing  in USD.

In both of the above instances territorial reach including enforcement by far exceed the position of the French DPA. Both the FCPA and the “US Dollar Privilege” apply to corporations and individuals  that have not  necessarily chosen to subject themselves to US laws.

The debate on internet jurisdiction and state sovereignty is crucial and one of the major challenges facing lawmakers and the international community for the next many years. It is critical that it be addressed with thoughtfulness, rationality and vision and not with half-truths and void or contradictory theories.

Dan Shefet

Lawyer

President of AAID

(*)

As a consequence of the ruling of the ETJ, the Paris-based Association for Accountability and Internet Democracy (AAID) has been set up, which has promoted a number of legal initiatives at the national level (France) as International within the European Union And of the Council of Europe.

Those interested in knowing more about the nature and characteristics of the AAID, as well as some of its concrete initiatives, can be consulted In this same website, in home, section Center of Studies: DOCUMENTATION. 

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