HEGGLIN V PERSONS UNKNOWN AND GOOGLE INC [2014] EWHC 2808 (QB)
Child Abuse website – Imagery
FACTS:-
The Claimant was a businessman and investor who previously lived in London but was currently resident in Hong Kong. An anonymous individual, or possibly group of individuals, had been posting on a large number of internet websites abusive and defamatory allegations about the Claimant. There was no evidence to suggest that any of this was true. The claim form was issued on the 24th June 2014 against “persons unknown” (the First Defendant) and the claim against the Second Defendant was for an injunction pursuant to sections 10 and/or 14 of the Data Protection Act 1998 and the European Directive 95/46/EC. There was also a claim for a Norwich Pharmacal Company and Other v HM Customs and Excise [1973] UKHL 6 order requiring Google to disclose such information within its possession or control as might be necessary for the Claimant to identify the First Defendant.
As the Second Defendant was incorporated in Delaware and located in California, permission was accordingly required to serve proceedings on them out of the jurisdiction.
JUDGMENT:-
Mr Justice Bean said that because the relief sought by the Claimant was in the form of injunctions, his advisers sensibly made the application directly to a judge along with an application for an interim injunction and a Norwich Pharmacal order. He had fixed the trial date for 24th November 2014 and gave directions which included the sequential service of expert evidence, first by Google and then by the Claimant. In addition, he made a Norwich Pharmacal order. The Second Defendant had been taking steps to block specified sites containing the abusive material.
Bean J would now give his reasons for granting permission to serve proceedings out of the jurisdiction. The basic principles were:-
(1) The Claimant must satisfy the court that there was a serious issue to be tried on the merits of the claim. In other words, there had 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 was a good arguable case and that the claim against the foreign defendant fell within one or more of the classes of case for which leave to serve out of the jurisdiction might be given.
(3) The Claimant must satisfy the court that, in all the circumstances, England was 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.
The Second Defendant had argued that although there was some evidence of a threat to repeat by the First Defendant, there appeared to have been little activity since October 2013. The Second Defendant had been taking steps to remove offending content from Google-hosted sites and to block URLs linking to the offending material which appeared on its search results.
Bean J did not accept this submission. The question of whether the Defendant was doing all that it could, or all that could be done, to prevent re-publication of this offensive material was an issue for trial.
The Claimant's cause of action for the statutory torts created by the Data Protection Act was clearly established in principle and there was at least a good arguable case for the grant of some form of injunction against the Second Defendant. What the width of that injunction should be was a question for trial.
England was, in all the circumstances, clearly or distinctly the appropriate forum for the trial of this dispute and the forum in which the case could be suitably tried in the interests of all parties and for the ends of justice. The claimant had business interests as well as a home within the jurisdiction, and the defamatory material damaged or risked damaging his reputation here. As for the Second Defendant, this claim came in the wake of the important decision of the European Court of Justice at Luxembourg on the 13th May 2014 in the case of Google Spain SL, Google Inc. v Agencia Española de Protección de Datos (AEPD), Mario Costeja González C-131/12. This established that Google Inc. was the data controller for the purposes of the European Directive in relation to its provision of web search facilities. The court held that Article 4(1) of the Directive was satisfied when the operator of a search engine sets up in a Member State a branch or subsidiary intended to promote and sell advertising space offered by the search engine and which orientates its activity towards the inhabitants of that country.
Consequently there was is at least a good arguable case that Google was 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 appeared or in the circumstances described in the ECJ's decision when operating a search engine such as google.co.uk on which his data was processed.
There was a lack of evidence at present as to whether the First Defendant was or might be connected to this jurisdiction. Google were and remained willing to comply with any indication the court that a Norwich Pharmacal order would be justified. They raised no separate dispute under this heading.
For these reasons, Bean J had granted leave for the claim form to be served out of the jurisdiction on the Second Defendant in respect of each of the causes of action in the claim
Child Abuse website – Imagery
FACTS:-
The Claimant was a businessman and investor who previously lived in London but was currently resident in Hong Kong. An anonymous individual, or possibly group of individuals, had been posting on a large number of internet websites abusive and defamatory allegations about the Claimant. There was no evidence to suggest that any of this was true. The claim form was issued on the 24th June 2014 against “persons unknown” (the First Defendant) and the claim against the Second Defendant was for an injunction pursuant to sections 10 and/or 14 of the Data Protection Act 1998 and the European Directive 95/46/EC. There was also a claim for a Norwich Pharmacal Company and Other v HM Customs and Excise [1973] UKHL 6 order requiring Google to disclose such information within its possession or control as might be necessary for the Claimant to identify the First Defendant.
As the Second Defendant was incorporated in Delaware and located in California, permission was accordingly required to serve proceedings on them out of the jurisdiction.
JUDGMENT:-
Mr Justice Bean said that because the relief sought by the Claimant was in the form of injunctions, his advisers sensibly made the application directly to a judge along with an application for an interim injunction and a Norwich Pharmacal order. He had fixed the trial date for 24th November 2014 and gave directions which included the sequential service of expert evidence, first by Google and then by the Claimant. In addition, he made a Norwich Pharmacal order. The Second Defendant had been taking steps to block specified sites containing the abusive material.
Bean J would now give his reasons for granting permission to serve proceedings out of the jurisdiction. The basic principles were:-
(1) The Claimant must satisfy the court that there was a serious issue to be tried on the merits of the claim. In other words, there had 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 was a good arguable case and that the claim against the foreign defendant fell within one or more of the classes of case for which leave to serve out of the jurisdiction might be given.
(3) The Claimant must satisfy the court that, in all the circumstances, England was 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.
The Second Defendant had argued that although there was some evidence of a threat to repeat by the First Defendant, there appeared to have been little activity since October 2013. The Second Defendant had been taking steps to remove offending content from Google-hosted sites and to block URLs linking to the offending material which appeared on its search results.
Bean J did not accept this submission. The question of whether the Defendant was doing all that it could, or all that could be done, to prevent re-publication of this offensive material was an issue for trial.
The Claimant's cause of action for the statutory torts created by the Data Protection Act was clearly established in principle and there was at least a good arguable case for the grant of some form of injunction against the Second Defendant. What the width of that injunction should be was a question for trial.
England was, in all the circumstances, clearly or distinctly the appropriate forum for the trial of this dispute and the forum in which the case could be suitably tried in the interests of all parties and for the ends of justice. The claimant had business interests as well as a home within the jurisdiction, and the defamatory material damaged or risked damaging his reputation here. As for the Second Defendant, this claim came in the wake of the important decision of the European Court of Justice at Luxembourg on the 13th May 2014 in the case of Google Spain SL, Google Inc. v Agencia Española de Protección de Datos (AEPD), Mario Costeja González C-131/12. This established that Google Inc. was the data controller for the purposes of the European Directive in relation to its provision of web search facilities. The court held that Article 4(1) of the Directive was satisfied when the operator of a search engine sets up in a Member State a branch or subsidiary intended to promote and sell advertising space offered by the search engine and which orientates its activity towards the inhabitants of that country.
Consequently there was is at least a good arguable case that Google was 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 appeared or in the circumstances described in the ECJ's decision when operating a search engine such as google.co.uk on which his data was processed.
There was a lack of evidence at present as to whether the First Defendant was or might be connected to this jurisdiction. Google were and remained willing to comply with any indication the court that a Norwich Pharmacal order would be justified. They raised no separate dispute under this heading.
For these reasons, Bean J had granted leave for the claim form to be served out of the jurisdiction on the Second Defendant in respect of each of the causes of action in the claim