Back to school…but is it time for a change?
Last Thursday, in the case of Hegglin v Google Inc. & ORS (2014) QBD, the High Court granted a businessman leave to serve proceedings under the Data Protection Act 1998 out of the jurisdiction on Google, seeking injunctive relief in respect of defamatory comments posted on websites by an anonymous individual.
The applicant business man (H) was a Hong Kong resident but had previously lived in the United Kingdom. H retained close connections with the UK, owning a house there and being a director of a company that was preparing to float on the London Stock Exchange.
An anonymous person had allegedly posted abusive and defamatory material on many websites. H brought proceedings against Google, which was the search engine provider, under sections 10 and 14 of the Data Protection Act 1998. H sought an injunction requiring Google to block specific sites containing the allegations and a Norwich Pharmacal order was made.
H later amended his claim form, seeking to require Google to take all reasonable technical steps as were necessary to ensure that the material did not appear as "snippets" in search results. However, the judge did not allow such an argument on short notice and directed that that matter be heard at trial.
Google was incorporated in Delaware, so H required leave to serve the proceedings out of the jurisdiction.
Google submitted that it had taken steps to remove and block the sites from its search results and that H needed to show a real basis for thinking that the conduct would be continued when, apart from some evidence of a threat to repeat by the anonymous poster, there had been little activity for 10 months.
The High Court granted H’s application for leave to serve proceedings on Google outside of the jurisdiction.
In reaching its decision, the court had to consider the requirements for service out of the jurisdiction as set out in CPR PD 6B para.3.1. The court found that Google had been co-operative, however the question of whether it had done all that it could to prevent re-publication was an issue for trial.
The court further held that H's statutory tort was established in principle and there was a good arguable case for some form of injunction. England was clearly the appropriate forum for the dispute and it was also suitable for the trial. The defamatory remarks risked damage to H's reputation in England.
Applying the relevant sections of the Data Protection Act 1998, Google was a data controller and any of its subsidiaries would be a data controller for the purposes of the 1998 Act regarding the provision of searches. The Court concluded that there was therefore a good arguable case that Google was obliged to comply with that Act when operating as a search engine.
By Katie Allard, Parlegal, Dispute Resolution
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