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December 1, 2014
In March 2014, the Paris Criminal Court had decided that Facebook and other web pages contained defamatory material about the claimants, however links to the material were still returned on Google searches made on Google.com and on Google in other member states. Google Inc was requested to remove the links but did not do so. In a hearing on 16th September, the TGI, citing the decision in Google Spain v Gonzalez (the right to be forgotten case), said that responsibility lay with Google France for the continuing infringement of the claimants’ rights. In Google Spain, the European Court had said:
“It must be held that the processing of personal data for the purposes of the service of a search engine such as Google Search, which is operated by an undertaking that has its seat in a third State but has an establishment in a Member State, is carried out ‘in the context of the activities’ of that establishment if the latter is intended to promote and sell, in that Member State, advertising space offered by the search engine which serves to make the service offered by that engine profitable.”
Using the same analysis, the Paris Court held that the activities of Google France were inextricably linked with Google Inc. Accordingly it decided that the company should be responsible for the behaviour of Google Inc, that it had the power to geoblock French residents’ access to Google in other jurisdictions and that it could ensure that Google Inc removed all links to defamatory material.
Google France were ordered to pay the claimants €1,500, their legal costs, and if the links were not removed within a month, a fine for every day that the links remained live (to a maximum of 2 months).
Whilst one can appreciate the frustration of the Court at seeing its judgments ineffective to remedy the libelling of the claimants, the judgment appears to stretch Google Spain to its limits, overlooking entirely normal corporate law principles of companies being distinct and separate entities, with control and function being set out in and determined by articles of association and contracts. If Google France are not appealing the decision, we can only assume that it considers the decision to be so maverick as to be unlikely to be treated as a precedent.