Privacy, Remedies and Comity: The Emerging Problem of Global Injunctions and Some Preliminary Thoughts On How Best to Address It
Part V, Chapter 19 in Comparative Privacy and Defamation 307-328 (András Koltay & Paul Wragg eds, Edward Elgar Publishing 2020)
21 Pages Posted: 18 Nov 2020
Date Written: October 1, 2020
A troubling new trend seems to be emerging: Some national courts are issuing extraterritorial injunctions that require web search engine providers (such as Google and Bing) to de-index content on a global basis. In Google, Inc. v. Equustek Solutions, Inc., the Supreme Court of Canada held that the Canadian domestic courts may lawfully issue global de-indexing orders that require online content to be removed not only in Canada but also world-wide. Meanwhile, other national courts and transnational juridical bodies are actively considering whether or not to embrace the use of global de-indexing orders to further national policies regarding intellectual property, informational self-determination, and privacy.
Injunctions that require a search engine provider to de-index search results, when limited to the territory of the issuing court, do not present any serious conflict of laws issues or problems. After all, a particular country may decide to extend broad – or relatively weak – legal protection to the freedom of speech (including even core political speech). Nor do they implicate international law norms that generally restrict the jurisdiction of national courts to a particular sovereign’s territory or citizens. Global de-indexing orders, however, are another kettle of fish.
Domestic courts should be careful what they wish for before endorsing globally-applicable de-indexing orders. If widely adopted and deployed, world-wide injunctions requiring the de-indexing of search results have the potential to sow legal chaos – and to significantly disrupt global flows of information and ideas over the Internet. In the context of speech restrictions designed to promote privacy interests, such injunctions could easily lead to a race to the bottom, with the least speech protective jurisdiction that possesses the power to force private corporations to comply with the injunctive orders of its domestic courts effectively determining the scope of freedom of expression in the U.S. and Europe. To be sure, the Court of Justice of the European Union held, in its recent CNIL decision, that the General Data Protection Regulation (GDPR) does not have extraterritorial effect. Even so, however, it clearly signaled that the EU could lawfully apply the right to be forgotten (RTBF) on a world-wide basis if the European Parliament wished to give the RTBF global effect. The EU should think carefully before it follows the lead of the Supreme Court of Canada in Equustek. As much as the EU might wish for European data privacy standards to serve as the world’s legal yardstick, its leaders should consider very carefully whether they are prepared to have China set the metes and bounds of freedom of expression in both Beijing and Brussels.
Keywords: Constitutional law; privacy; dignity; right to be forgotten; Big Data; PRISM; metadata; drones; surveillance; comparative law; free speech; personal data; democracy; first amendment; expressive freedom; comparative law; autonomy; transnational judicial dialogue; anonymity; technology; cultural norm
Suggested Citation: Suggested Citation