Google. Data Protection Act 1998
In Daniel Hegglin v Person(s) Unknown & Google Inc [2014] EWHC 2808 (QB) the Claimant, Daniel Hegglin, had previously lived in London but now lived and worked in Hong Kong as a Director of a company, soon to be listed on the London Stock Exchange. However, he still kept a house in London and also continued to carry on business there.
It is not known whether the 1st Defendant was one person or a group of people. There had been extremely abusive and defamatory postings online from the 1st Defendant, about the Claimant.The claim form was lodged with the court on the 20th June 2014, the claim against the 2nd Defendant, Google Inc, was for an injunction pursuant to sections 10 and/or 14 of the Data Protection Act 1998 and under a European Directive 95/46/EC.
“to prevent the processing of personal data of the claimant which is inaccurate and/or which is causing or is likely to cause him substantial damage or substantial distress.”
The Claimant also wanted a Norwich Pharmacal Order which is a court order for the disclosure of documents or information which in this case meant that Google would have to reveal what it had learnt about the 1st Defendant to the Claimant, including its identity.
As Google is in California and a US registered company the Claimant had to request authority from the court to serve proceedings out of jurisdiction. As the Claimant wanted an injunction from Google an application was made before Mr Justice Bean for an interim injunction and further for a Norwich Pharmacal Order as above.
Originally the Claimant’s application for an injunction was to request Google to block all the sites listed but just 2 days before the hearing the Claimant asked for greater measures to be put in place by Google in that, he wanted them to also as well, ensure that the offending material did not reappear and come up as excerpts when making google searches.
Mr Justice Bean found this request by the Claimant to be of too short notice for him to be able to deal with all of the matters. He believed they should be considered in greater detail at the trial which he fixed for the 24th November 2014.
Mr Justice Bean also gave directions asking for service of expert evidence by firstly Google then the Claimant and he made the Norwich Pharmacal Order noting that Google had been very proactive in trying to stop the offending material appearing on the sites.
With regard to service out of jurisdiction, Mr Justice Bean granted the application and gave his reasons as follows:
- They must satisfy the court that there is a serious issue to be tried on the merits of the claim i.e there is a real likelihood of success on the whole claim
- The Court must be satisfied that the claim against the Defendant from another jurisdiction is a “Good arguable case” with the Court making any decisions on points of law involved.
- The Claimant has to satisfy the court that this country’s jurisdiction is the right place for the trial to take place with the court deciding where the case should be tried in the interests of justice for all the parties to the claim.
Mr Justice Bean made reference to Counsel for the Claimant, Mr Tomlinson QC, and the basis of his claim for an injunction under para 3.1 of the CPR Practice Direction 6B where (2) says that the claim for the injunction is made to stop the Defendant from doing that act within the jurisdiction.
Counsel for the 2nd Defendant, Google inc, Mr Caldecott QC, had pointed out that there should be shown to the court how it is envisaged that the offending acts will be repeated by the person or persons unknown since nothing much has happened since October 2013.
Further his clients had taken measures, as noted by Mr Justice Bean above, to remove offending material from those sites and also block URLS so as to stop links to those sites. In his opinion, therefore, an injunction would not be required.
Mr Justice Bean did not accept this. He agreed Google had cooperated but questioned whether they had done everything in their power to stop this offending material re-appearing. Under the Data Protection Act 1998 the Claimant had established a case for the granting of the injunction against Google but what it should consist of would be dealt with further in the trial fixed for November.
Mr Justice Bean noted that the Claimant had a house and still conducted business within the jurisdiction and as such there are identifiable risks as to the damage to his reputation in this Country.
With regard to Google, Mr Justice Bean referred to the recent landmark case in the European Court of Justice which confirmed that Google, under the European Directive, is the data controller on the web searches.
Under 4(1) of that Directive this comes into force when the operator of the search engine sets up an offshoot in a European Member State with the intention of providing the people living in that Country access to their search facility.
Mr Justice Bean therefore agreed with Counsel for the Claimant that on the face of it there is a case that Google is bound under the provisions of the Data Protection Act 1998 which is enforceable within this jurisdiction and also under the European Directive as web controller, hosting the site on which the data appears.
Mr Justice Bean continued that Google, aside from the arguments regarding service out of jurisdiction, were willing to go along with any consideration Mr Justice Bean might give to the justification of granting a Norwich Pharmacal order as there was no disagreement on this point.
On consideration of all the matters, Mr Justice Bean gave leave for the claim to be served out of jurisdiction on Google inc in relation to the whole of the claim.