A subject matter specifc balanced approach

While global scope ot jurisdiction cannot be the default approach, it is necessary in some circumstances. Given the multiple competing interests at stake, global takedowns or delisting can, at times, be a critical means of protecting key interests. This said, the risk of over-censorship and forced uniformity can be dire enough to suggest extreme caution in deploying global measures."’1 Andrew Kane Woods makes a compelling argument, concluding that the apprehension against global injunctions is misplaced it the injunction is issued after considering the competing sovereign values.[1] In this respect, ‘[tjhe history ot extraterritorial, even global, orders is long. The internet will not stop these orders; to the contrary, it might call for more of them’.[2] Woods continues by noting that:

no principle of sovereign deference per se prohibits global injunctions, global takedown requests, or other forms of extraterritorial exercises ofjurisdiction over the cloud. Instead, comity principles sometimes call for deference to and even enforcement ot cross-border legal orders."’[3] [4]

Although courts have the power to issue extraterritorial injunctions, multiple authors hold the view that it must be exercised cautiously and such injunctions should be granted only as a last resort."” Douglas, for example, argues that courts should exercise self-restraint based on the principle of equity, applying comity and utilitarian considerations of the state ot the internet if the content accessible was limited to that which was lawful among all nations.[5] In particular, the scope ot jurisdiction should be ‘context-dependent’.[6] Whether extraterritorial effect ot territorial rule making is favorable or not depends on the subject matter being regulated. It can be beneficial—leading to harmonized practices across borders—and also harmful—causing a clash ot norms and values.1'’8 As Daskal puts it:

More broadly, there is a range ot speech that just about everyone agrees is harmful and should be kept out of the public sphere—tor example, child pornography, or bullying, appropriately defined. Takedowns based on copyright infringements run into the millions per year—implemented across all of Google, Facebook, and other providers on a global scale. And while there are legitimate concerns about inaccurate or bad faith removal demands, there also is relatively widespread agreement that certain takedowns, properly identified and scoped, are appropriate—and the only way to adequately protect key security, privacy, and intellectual property interests at stake.[7] [8] [9]

Global copyright enforcement happens massively across all online platforms through private enforcement with little accountability and no judicial review. Internet service providers take down infringing copyright material from all domain names at a greater magnitude than delinking associated to the right to be forgotten. In a month, Google removes tens ot millions of URLs that allegedly infringe copyright, while delisted 1.5 million URLs violating the right to be forgotten since 2014.1,11 As Daskal notes, global copyright enforcement would apparently be less ot an issue when compared with the right to be forgotten because, first, most companies applying the copyright laws are US-based and, second, there is international consensus on what constitutes copyright infringement.[10]

Given that extraterritorial orders should be the exception not the rule, tests have been proposed tor defining when global enforcement might occur. Van Alsenoy and Koekkoek argued that the ‘effective protection’ principle offers prima facie support for the claim that European authorities can also require delisting on a global scale.[11] The Coogle Spain ruling seems to endorse this principle when noting, inter alia, that ‘escaping the obligations and guarantees laid down by EU law would compromise the ‘effectiveness and effective and complete protection of fundamental rights and freedoms ot natural persons which the [EU law] seeks to ensure’.[12] [13] [14] This interpretation would be in line with the International Covenant on Civil and Political Rights that provide “an effective remedy” to any person whose rights and freedoms are violated.1 4

Traditional principles used for establishing extraterritorial jurisdiction1'” can support global enforcement and equally help provide effective protection. First, according to the nationality principle, States can claim jurisdiction over offences to their nationals committed abroad.[15] Again, according to the effects theory, a State can exercise its jurisdiction in its own territory over a foreign national for conducts that took place abroad and produce effects within its territory.[16] [17] [18] The ‘nationality principle’ is the only one that guarantees the fundamental rights of a national according to the balancing done by his or her own courts. The CJEU cannot avoid concluding that there are no supporting arguments for precluding a national court from issuing worldwide enforcement if only such a measure can guarantee the necessary redress to its own citizens under the court’s constitutional framework. If international law allows it, a national court finding that the fundamental rights of its nationals have been infringed must impose measures that provide global redress. Otherwise, a national has no fully effective redress for infringement of its fundamental rights occurring on gTLD internet domains. Only this approach fully safeguards individual fundamental rights from the perspective of national courts.

In assessing whether a domain-based approach, geo-filtering approach or global implementation approach is applied, the jurisdictional principle of ‘reasonableness’ can be useful.1'8 This principle requires states to balance their policy objectives with the principle of non-interference with other states, meaning that ‘States should weigh the realization of their policy objectives against the risk of undue interference with the national legislation of other States’. However, ‘reasonableness’ might be an amorphous concept that leads to biased decisions and undermines legal certainty and predictability. Therefore, as Van Alsenoy and Koekkoek conclude, any potential extraterritorial enforcement should be better implemented using the concept of ‘interest balancing’ to determine whether sufficient grounds warrant extraterritorial jurisdiction.[19] Factors such as interest of other States in the content, harmonization among States on the norm to be enforced, presence of connecting factors to the territory of the forum state and likelihood of adverse impact if delisting is confined to local search results are relevant.18 In conclusion, the legitimacy of global orders depends on the facts of the case.

  • [1] Andrew Keane Woods, ‘Litigating Data Sovereignty’ (2018) 128 Yale LJ328.
  • [2] Andrew Keane Woods, ‘Three Things to Remember from Europe’s “Right to Be Forgotten" Decisions’(Lawfare, 1 October 2019) (last accessed 24 July 2020).
  • [3] Woods (n 163) 335.
  • [4] See eg Diab (n 37) 268; Douglas (n 3) 34; Svantesson (n 3) 71; Van Alsenoy and Koekkoek (n 91) 115-120.
  • [5] Douglas (n 3) 48-57.
  • [6] Svantesson (n 3) 71. See also Van Alsenoy and Koekkoek (n 91) 115-120; Daskal, ‘Borders and Bits’ (n 16)232-235.
  • [7] Ibid. 232-235.
  • [8] Daskal (n 151) 1635.
  • [9] Google Transparency Report (last accessed 24 July 2020).
  • [10] Daskal, ‘Borders and Bits’ (n 16) 216-218.
  • [11] See Van Alsenoy and Koekkoek (n 91) 118.
  • [12] Google Spain (n 61) para 58.
  • [13] The International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) Arts. 3, 17 (16 December1966).
  • [14] See, e.g., Polcak and Svantesson (n 4) para 3.4—3.6.
  • [15] Elena Perotti, Right to Be Forgotten: The European Ruling and Its Extra-EU Implementation (WAN-INFR A 2016)28-35.
  • [16] See SS Lotus (France v. Turkey), 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7, 1927), at 19.
  • [17] Ibid.
  • [18] Ibid., 119.
  • [19] Ibid., 119-120. See also Diab (n 37) 268 (proposing an equitable test for extraterritorial enforcements based onthe need to establish necessity and proportionality: an extra-territorial or global order ‘would be necessary onlyif a form of direct relief against the defendant or the source of harm at issue would not be comparably effective’,while ‘(t]he order would be proportionate only if its scope constitutes the least intrusive means of addressing theharm at issue in terms of the content restricted, the duration of the order, and its geographic scope’).
 
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