The subject of territorial reach online of judicial or administrative decisions is becoming increasingly controversial since it pits one state’s sovereignty directly against others.
In addition to the definition of state sovereignty in cyberspace it raises questions on freedom of speech protection and recognition of cultural and regulatory differences.
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 implies 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 2016, 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’état ( Supreme Court on administrative matters).
We 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 May 2014) and in particular its reference to “efficiency” (the theory being that protection must be efficient and consequently worldwide).
Another important judgement in the Equustek case (Google Inc. v. Equustek Solutions Inc., et al December 12thbefore the Supreme Court in Canada ) is expected shortly.
Even though this Canadian case is critical as to the scope 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 and harmonized 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 which is much too often addressed by emotional statements like “censorship” and “repression” or primitive rants against European values.
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 when applied to the internet is 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 .
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 the challenge tends to become highly emotional and conflictual.
In addition such conflicts will most often involve supra legislative norms (like the First Amendment).
The conflict has developed into one between a European protective approach and an American First Amendment standpoint.
CNIL’s position in France 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.
When a company decides to set up a subsidiary, a branch, a rep office or in any other way do business in a given jurisdiction it must abide by the same laws as any other economic actor in that country
The argument that the host country is imposing censorship by applying its own laws on the protection of human integrity in other countries is fallacious. Neither the host country 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 Global Reach simply means that a country applies its laws as a sovereign state on all actors doing business on its territory.
It is not the mere fact that content is accessible in a country that allows that country to prohibit it globally. The authority to regulate is based on the ISPs presence in that jurisdiction (not just the accessibility of content) and its de facto adoption of the laws applicable in that country.
Nobody forces an ISP to do business in any given country.
They are very welcome, but obviously in full compliance with that country’s 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 imperative that it be addressed with thoughtfulness, rationality and vision and not with half-truths and void or contradictory theories.