Enforcement of European rights on a global scale

Giancarlo Frosio[1]

Abstract

This chapter reviews global enforcement of European rights and the implications for copyright. Global extra-territorial enforcement of miscellaneous rights has emerged as a consistent trend in recent online regulation, both at international and EU level. In considering this trend, this chapter focuses on case law and policymaking that face the riddle of extraterritorial application of online intermediaries’ obligations. This chapter describes, first, the historical origins of global enforcement and the complex issues that internet jurisdiction brings about. It then offers a panoramic overview of emerging global enforcement at the international level. Later, this chapter reviews to which extent global enforcement has been endorsed by the European legal system, both at EU and national level, with special emphasis on recent decisions from the Court of Justice of the European Union (CJEU), such as Google v Ci'IL and Glawischnig v Facebook. Finally, after a review of the political complexities surrounding global enforcement, the standards that might be applied for issuing global enforcement orders are discussed alongside their relevance for copyright.

Contents

Abstract 413

Introduction 414

Twenty years ago ... Licra v Yahoo! 416

Global enforcement: an international trend? 419

Global enforcement in the EU 423

C-507/17 Google v CNIL 424

C-18/18 Glawischnig-Piesczek v Facebook 427

A Pilate’s decision? 428

Global or local enforcement? 431

Limiting conflicts and promoting international coexistence 432

A subject matter specific balanced approach 433

Conclusions 435

References 437

Case law 439

Introduction

The ubiquity ot the internet has made enforcement[2]—any enforcement, not just intellectual property (IP) or copyright enforcement—an increasingly challenging task.[3] In this context, global extra-territorial enforcement of miscellaneous rights is emerging as a consistent trend in recent online regulation.[4] Extra-territorial enforcement would refer to ‘the exercise ofju- risdiction by a state over activities occurring outside its borders’.[5] [6] Global enforcement would imply that an act of enforcement by one jurisdiction has effects in all jurisdictions worldwide. In particular, recent case law and policymaking is faced with the riddle ot extra-territorial application of online intermediaries’ obligations.

According to Dan Svantesson ‘the most important, and perhaps most urgent, underlying issue facing the Internet [is] a fundamental clash between the global, largely borderless, Internet on the one hand, and the practice ot lawmaking and jurisdiction anchored in a territorial thinking’.[4] As Svantesson points out, the key development that threatens the global internet relates to the geographical scope of online intermediaries’ liability and obligations.[8] As a result, a major question that looms over the internet today is as follows: is it enough to enforce allegedly infringing content in a geographically segmented way, or are global dereferencing, blocking and takedown orders needed to fully guarantee the rights of injured parties?

The answer to this question becomes especially tricky because the internet is global, but jurisdiction is not. The Westphalian sovereignty system can hardly be stretched to reach the internet.[9] Traditionally, states are competent to regulate activities that ‘touch their soil’ as a part of their qualified territoriality. Therefore, states take action against internet activities conducted on their territory or the impact of which is felt on their territory, although it may impact comity principles and cause conflicts.[10] As a long-established approach, in case of conflict between local territorial law and the law applicable to particular activities on the net, States apply the ‘comity doctrine’ or ‘sovereign-deference doctrine’ and apply significant restraint in protecting individuals within their sphere of control. Comity has been described as ‘a sort of intercourt diplomacy’.[11] According to a widely used definition,

[c]omity in the legal sense, is neither a matter of absolute obligation on the one hand nor of 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, and to the rights of its own citizens or of other persons who are under the protection of its laws.[12] [13]

While territorial jurisdiction with extraterritorial impacts is common, inevitable, and legitimate, instances ot actual extraterritorial jurisdiction are rare but can cause conflict." The internet and global online platforms have now made these once rarefied instances increasingly common. In particular, given the increasing number of cases against intermediaries to remove, block or delist content globally, Svantesson argues that ‘scope ot remedial jurisdiction’ has increasingly become a relevant third aspect of jurisdiction that needs consideration apart from personal and subject matter jurisdiction.[14] [15]

On the internet, global enforcement takes a peculiar—and elusive—shape. Global enforcement applies to generic Top-Level Domains (gTLD), such as .com, rather than regional or country code Top-Level Domains (ccTLD), such as eu’ or ‘.it’. In practice, an Italian court ordering to enforce rights on ‘.com’, rather than only on ‘.it’, will be presumptively issuing an extra-territorial global enforcement order. In fact, gTLDs exist apparently in a sovereign vacuum, being technically detached from any sovereign national territory, under the control of the Internet Corporation for Assigned Names and Numbers (ICANN). In contrast, in 2000, ICANN Government Advisory Committee passed a set of principles that essentially claimed national sovereignty over country code top-level domains.[16]

Global enforcement brings about a fundamental tension between competing balancing ot rights from multiple jurisdictions. Miscellaneous—and opposing—international approaches in balancing the competing rights at stake have steadily polarized the debate. In discussing the right to be forgotten, where an issue with global enforcement has emerged recently, Professor Floridi and Taddeo noted that

[sjtriking the correct balance between the two is not a simple matter. Things change, for example, depending on which side ot the Atlantic one is. According to the European approach, privacy trumps freedom of speech; whereas the American view is that freedom of speech is preeminent with respect to privacy. Hence, defining the responsibilities of OSPs [online service providers] with respect to the right to be forgotten turns out to be quite problematic, as it involves the balancing of different fundamental rights as well as considering the debate on the national versus international governance of the Internet.'5

Of course, global enforcement does imply the worldwide enforcement of only one of the multiple possible balancing of rights, therefore potentially taking down or blocking access to content that would be infringing in one jurisdiction but is perfectly lawful anywhere else or at least in multiple other jurisdictions (on copyright website blocking orders, see the discussion in Chapters 18 and 19). Some jurisdictions might protect more tightly personality or privacy rights. Some others might favor (intellectual) property rights. And, others, again, might more often tip the balance in favor of freedom of expression. Enforcing one’s national approach on ‘.com’ would obviously frustrate multiple other approaches. This has become a conundrum increasingly hard to disentangle in the online environment.

Finally, this chapter examines the interface between internet jurisdiction, international private law issues, intermediary liability, and online enforcement.[17] [18] This chapter’s discussion touches only indirectly upon global enforcement of copyright and database rights as the large majority of decisions reviewed pertain to other subject matters, including defamation, hate speech, or privacy. Nonetheless, this jurisprudence—the global trend that it portends and the delicate balancing of human rights that lies underneath—can be applied mutatis mutandis to IP and copyright enforcement as well.

  • [1] My most profound gratitude goes to my RA, Varnita Singh, for remarkable assistance given in preparing thischapter.
  • [2] See Xavier Seuba, The Global Regime for llie Enforcement of Intellectual Property Rights (CUP 2017).
  • [3] See Sophie Neumann, ‘Ubiquitous and Multistate Cases’ in Paul Torremans (ed), Research Handbook on theCross-Border Enforcement of Intellectual Property (Edward Elgar 2014) 497-498.
  • [4] See, for commentaries confirming this emerging trend, e.g., Michael Douglas, ‘Extraterritorial InjunctionsAffecting the Internet’ (2018) 12(1) J Equity 34; Uta Kohl, The Net and the Nation State, Multidisciplinary Perspectives on Internet Governance (CUP 2017) (challenging the idea of an inherently global internet and making theargument that increasing territorial fragmentation has been emerging anywhere in the world, and betweenWestern countries as well); Dan Svantesson, jurisdiction in 3D—“Scope of (Remedial) Jurisdiction” as aThird Dimension of Jurisdiction’ (2016) 12(1) J Priv Int L 60-76; The Information Society Project and TheFloyd Abrams Institute for Freedom of Expression, Extraterritorial Enforcement: Developing Norms for the Information Society (Workshop White Paper, Yale Law School, 2018) (last accessed 24 July 2020).
  • [5] Deborah Senz and Hilary Charlesworth, ‘building Blocks: Australia's Response to Foreign ExtraterritorialLegislation’ (2001) 2(1) Melb J Int L 69, 72, as cited in Dan Svantesson, Solving the Internet Jurisdiction Puzzle(OUP 2017) 41 (discussing territoriality versus extraterritoriality). See also Radirn l’olcak and Dan Svantesson, In formation Sovereignty: Data Privacy, Sovereign Powers and the Rule of Law (Edward Elgar 2017) para 3.6.
  • [6] Dan Svantesson, ‘Internet Jurisdiction and Intermediary Liability’ in Giancarlo Frosio (ed), The Oxford Handbook of Online Intermediary Liability (OUP 2020) 691-692.
  • [7] See, for commentaries confirming this emerging trend, e.g., Michael Douglas, ‘Extraterritorial InjunctionsAffecting the Internet’ (2018) 12(1) J Equity 34; Uta Kohl, The Net and the Nation State, Multidisciplinary Perspectives on Internet Governance (CUP 2017) (challenging the idea of an inherently global internet and making theargument that increasing territorial fragmentation has been emerging anywhere in the world, and betweenWestern countries as well); Dan Svantesson, jurisdiction in 3D—“Scope of (Remedial) Jurisdiction” as aThird Dimension of Jurisdiction’ (2016) 12(1) J Priv Int L 60-76; The Information Society Project and TheFloyd Abrams Institute for Freedom of Expression, Extraterritorial Enforcement: Developing Norms for the Information Society (Workshop White Paper, Yale Law School, 2018) (last accessed 24 July 2020).
  • [8] See Dan Svantesson, ‘Between a Rock and a Hard Place - An International Law Perspective of the DifficultPosition of Globally Active Internet Intermediaries’ (2014) 30 CLSR 348.
  • [9] See Chris Demchak and Peter Dombrowski, ‘Cyber Westphalia: Asserting State Prerogatives in Cyberspace'(2013-2014) Geo J Int Aff29, 33 (noting that ‘the process of establishing cyber borders and thus states’ sovereignty will be nonlinear, dangerous, and lengthy'.)
  • [10] ibid. See also Jack Goldsmith ‘Unilateral Regulation of the Internet: A Modest Defence' (2000) 11 Eur J Ini L135, 136.
  • [11] Pamela Bookman, ‘Litigation Isolationism’ (2015) 67 Stan L Ren 1081, 1096.
  • [12] Hilton v Guyot 159 US 113, 164 (1895).
  • [13] See Teresa Scassa and Robert Currie, ‘New First Principles: Assessing the Internet’s Challenges to Jurisdiction’ (2010) 42(4) Georgetown J. oflnt L 1018, 1068-1073.
  • [14] Svantesson (n 3) 60.
  • [15] See Dan Svantesson, ‘Delineating the Reach of Internet Intermediaries’ Content Blocking - ‘ccTLD Blocking’, ‘Strict Geo-location Blocking’, or a ‘Country Lens Approach’?’ (2014) 11(2) SCRIPT-ed 153-170 (for adiscussion of geo-blocking and cc-TLD blocking versus global blocking and gTLD blocking).
  • [16] See Governmental Advisory Committee, ICANN, Principles for Delegation and Administration of ccTLDs(23 February 2000) http://www.icann.org/committees/gac/gac-cctldprinciples-23feb00.htm (last accessed24 July 2020). See also Kim von Arx and Gregory R. Hagen, 'Sovereign Domains A Declaration of Independence of ccTLDs from Foreign Control' (2002) 9 Rich J L & Tech 4 (reviewing the early politics behinddomain names and sovereign control).
  • [17] Mariarosaria Taddeo and Luciano Floridi, 'The Debate on the Moral Responsibility of Online Service Providers' (2015) 22 Sd Eng Ethics 1575, 1592.
  • [18] Much has been written on the subject of internet jurisdiction and online enforcement. See, e.g., Pedro de MiguelAsensio, Conflict of Laws and the Internet (Edward Elgar 2020); Michael Geist, ‘Is There a There There? TowardsGreater Certainty for Internet Jurisdiction' (2001) 16 Berkeley Tech LJ 1345; Jack Goldsmith and Tim Wu, WhoControls the Internet? Illusions of a Borderless World (OUP 2006); David Johnson and David Post, ‘Law and Borders—The Rise of Law in Cyberspace’ (1996) 48 Stan L Rev 1367; Scassa and Currie (n 11) 1018; Dan Svantesson,‘Jurisdictional Issues and the Internet—a Brief Overview 2.0’ (2018) 34(4) CLSR 715-722; Svantesson (n 3); DanSvantesson, Private International Law and the Internet (Kluwer Law Int’l 2016). Plenty ofliterature in the field has beendedicated to conflict of laws and data regulation. See, e.g., Jennifer Daskal, ‘Borders and Bits’ (2018) 71 VanderbiltL Rev 179; Jennifer Daskal, ‘The Un-Territoriality of Data’ (2015) 125 Yale LJ 326; Felicity Gerry QC and NadyaBerova, ‘The Rule of Law Online: Treating Data Like the Sale of Goods: Lessons for the Internet from OECDand CISC and Sacking Google as the Regulator’ (2014) 30 CLSR 475; Polcak and Svantesson (n 4) (elaborating onthe assumption that information privacy is, in its essence, comparable to information sovereignty). Some writershave focused more specifically on Internet jurisdiction and copyright enforcement. See, e.g., Christophe Geiger,‘Challenges for the Enforcement of Copyright in the Online World: Time fora New Approach’ in Paul Torremans(ed), Research Handbook on the Cross-Border Enforcement of Intellectual Property (Edward Elgar 2014); Martin Husovec,‘How Europe Wants to Redefine Global Online Copyright Enforcement’ in Tatiana Eleni Synodinou (ed). Pluralism or Universalism in International Copyright Law (Kluwer Law International B.V 2019); Andreas Reindl, ‘Choosing Law in Cyberspace: Copyright Conflicts on Global Networks’ (1998) 19 Mich J Ini L 799; Paul Torremans,‘Dangers and Challenges of Copyright Law’s Segmentation in the Digital Era from a Private International LawPerspective’ in Tatiana Eleni Synodinou (ed), Pluralism or Universalism in International Copyright Law (Kluwer LawInternational BY 2019).
 
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