Out of jurisdiction and Google

The recent case of Hegglin v Google Inc & Ors concerned a businessman who was seeking an injunction against Google in relation to defamatory comments posted online by an anonymous individual. The issue at hand was whether proceedings could be issued outside of the jurisdiction.

The businessman had previously lived in the UK and continued to maintain close links to the UK but was currently residing in Hong Kong. Several websites published abusive and defamatory material regarding the businessman by anonymous individual.

Under section 10 Data Protection Act 1998 an individual may write to the data controller requesting it cease, or not to begin, processing any personal data which may cause damage or distress. Under section 14 Data Protection Act 1998 if the court is satisfied that the personal data of the subject is inaccurate, the court can order the data controller to rectify, block, erase or destroy those data.

The businessman therefore sought injunctive relief under section 10 and 14 Data Protection Act 1998 requiring Google to block certain sites containing the defamatory and abusive material. Google Inc. is located in California but was incorporated in Delaware. As a result the businessman required leave to serve the proceedings out of the jurisdiction.

The court set out the basic principles to be applied in determining whether to exercise its discretion to grant permission to serve out of the jurisdiction as follows:

‘(1) The claimant must satisfy the court that there is a serious issue to be tried on the merits of the claim. In other words, there has to be a real as opposed to a fanciful prospect of success on the substantive claim.

(2) The claimant must satisfy the court that there is a good arguable case that the claim against the foreign defendant falls within one or more of the classes of case for which leave to serve out of the jurisdiction may be given. “Good arguable case” in this context means that the claimant has a much better argument than the foreign defendant. Where a question of law arises in connection with the dispute about service out of the jurisdiction and that question of law goes to the existence of the jurisdiction, e.g. whether a claim falls within one of the classes set out in paragraph 3.1 of Practice Direction 6B, then the court will normally decide the question of law as opposed to seeing whether there is a good arguable case on that issue of law.

(3) The claimant must satisfy the court that, in all the circumstances, England is clearly or distinctly the appropriate forum for the trial of the dispute and that the court ought to exercise its discretion to permit service of the proceedings out of the jurisdiction. Where a claimant seeks leave to serve proceedings on a foreign defendant out of the jurisdiction, the task of the court is to identify the forum in which the case can be suitably tried for the interests of all the parties and for the ends of justice. In such a case, the burden is on the claimant to persuade the court that England is clearly or distinctly the appropriate forum.’

Google argued that it had been cooperative and that an injunction was not required. The court held that while Google was cooperative the question of whether it had done all that can be done to prevent re-publication of the offensive material was an issue for trial. The court held that under section 10 and 14 Data Protection Act 1998 the claimant had a good arguable case and that the defamatory material damages or risk damaging the businessman’s reputation. The court therefore agreed with the claimant that there was at the least a good arguable case that Google is under an obligation, enforceable in this jurisdiction, to comply with the requirements of the 1998 Act when processing the claimant’s personal data, both when hosting a website on which such data appears or when operating a search engine.

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