England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		01/02/2018

Mr Justice Julian Knowles:

1. This is an application by the Claimant, ABC, issued on 9 January 2018 in the Interim Applications Court for an interim injunction requiring the Defendant, described as Google Inc (inter alia) to block all access to the 'Square Mile News' blog websites www.squaremilenews.blogspot.co.uk and www.squaremilenews.blogspot.com in their entirety and to remove a news report on the website from a few years ago referring to ABC's conviction and sentence. The conviction is now spent for the purposes of the Rehabilitation of Offenders Act 1974.
2. ABC has been granted anonymity pursuant to an order made by Master Yoxall. He applied before me that the hearing should be held in private. I sat in private to hear the application, but refused it. It seemed to me that there was nothing in the application which justified a derogation from the principle of open justice. I am satisfied that ABC was able to fully develop the arguments that he wished to make.
3. This is a 'right to be forgotten' case. Nicklin J. described the general background to such cases in his judgment on the Pre-Trial Review in NT1 v Google LLC [2018] EWHC 67 (QB), paras 3 -5:

"3. Both claims concern what is called "the right to be forgotten". As is well-known, searches of the Internet can be made by search engines. Google provides such a search engine. When a person's name is entered, the search will return potentially relevant information relating to that person. Links are provided to the location of the information. The searcher can, via those links, visit the pages that have been identified as potentially containing information about or reference to the person whose name was searched.

4. The return of information in response to an inquiry of a search engine, potentially engages data protection laws. In these cases, Google accepts that when it provides results to a search against a person's name, it is a "data controller" and therefore subject to the relevant data protection laws. In the European Union, data protection laws are harmonised. The principle is that every EU state will must have substantially the same laws that apply to data protection. In the England & Wales, currently the principal source of data protection law is the Data Protection Act 1998. A new Regulation, the General Data Protection Regulation, will come into force across the EU (including the UK) on 25 May 2018.

5.As a result of the harmonisation of data protection laws across the EU, the European Court of Justice has jurisdiction to determine issues arising from data protection cases. Courts of the member states of the EU can refer cases to the ECJ for rulings as to the interpretation of the law. One such case – Google Spain SL –v- Agencia Espanol de Proteccion de Datos (AEPD) (Case C-131/12, 13 May 2014) [2014] QB 1022 - has become fairly well-known and has been the subject of public debate. It is colloquially known as the Google Spain case. It is the case that first really brought to prominence the notion of a "right to be forgotten". Put very simply, the case decided that, after a period of time, certain information about a person (although it may have been accurate many years ago, and may remain so) should not continue to be made available to the public in Internet search results because to do so would infringe the data protection rights of the individual concerned."

4. NT1 concerns two claims brought against Google LLC. The two Claimants (in separate claims) are unconnected, but the legal issues raised in the claims are the same. The trial of the claim brought by NT1 is due to commence on Tuesday 27 February 2018 and that of NT2 is due to commence on Monday 12 March 2018. The trial Judge is expected to be Warby J. These two claims will be the first cases in England and Wales in which the right to be forgotten will be considered by the court.
5. The Particulars of Claim in the present case aver that the Defendant is the operator of the 'Blogger' blog-publishing website, which hosts user-generated blog content worldwide at a sub-domain, 'blogspot.com', which in turn automatically redirects blogs to country specific domains. 'Square Mile News' is hosted on blogspot.com and blogspot.co.uk. The 'Square Mile News' blog contains news reports of court proceedings that are posted anonymously.
6. The following causes of action are pleaded: (a) libel; (b) misuse of private information; (c) breach of Articles 3, 6 and 8 of the European Convention on Human Rights; (d) malicious falsehood; (e) breach of the Data Protection Act 1998. The Claimant seeks a permanent injunction and damages.
7. The Particulars of Claim describe the Claimant as an entrepreneur who is involved in business, investment and civil society ventures in the UK and overseas. They state that he intends to raise venture funds by equity offerings. The Particulars complain that the continued publication by the Defendant of the news report referring to his conviction has prevented him from pursuing his ventures, causing him and his businesses to suffer substantial losses.
8. The Claimant has made a number of complaints to Google about the continued publication of the news report, but without success. On 11 August 2017 he received an email stating that Google would not be taking action in relation to the relevant URL because 'Blogger hosts third party content. It is not a creator or mediator of that content. We encourage you to resolve any disputes directly with the individual who posted the content.'
9. The Application Notice states that the application is made without notice. There is, however, a Certificate of Service for the Application Notice and accompanying documents which specifies service on 'Directors, Google Inc', at the address, 'Google UK Limited, Belgrave House, 76 Buckingham Palace Road, London SW1W 9TQ' on 15 January 2018. Paragraph 3 of the Claimant's witness statement asserts that the claim form and particulars of claim have been served on the Defendant at its representative address.
10. Even before considering the merits of the injunction application, it is clear I cannot grant it because the Claimant has not effected proper service on the right corporate entity at the right address. The Claimant has served Google UK Limited at its principal place of business in the UK. But that is not the right corporate body. In Payam Tamiz v Google Inc and another [2012] EWHC 449 (QB) (on appeal, [2013] 1 WLR 2151), the Claimant sued both Google Inc and Google (UK) Limited for libel in respect a blog called 'London Muslim' published on blogger.com. Eady J. said:

"4. Google Inc provides a range of Internet services including via Blogger.com (also based in and managed from the USA). This is described as a "platform" which allows any Internet user, in any part of the world, to create an independent blog free of charge. If someone uses that service, without having his/her own web address ("URL"), then Blogger.com allows users to host their blogs on Blogger.com URLs. This was the case with the blog on which the comments complained of in these proceedings were posted. Google UK Ltd simply carries on a sales support and marketing business within this jurisdiction. It does not operate or control Blogger.com and has therefore been joined in these proceedings inappropriately. This was explained in a defence served on 8 December 2011. The English company takes no part in the applications before me."

11. In Richardson v Facebook; Richardson v Google (UK) Limited [2015] EWHC 3154 (QB), para 71 the judge said:

"71. The application was supported by the first witness statement of David Christopher Barker of Google UK's solicitors, Pinsent Masons. He stated that "Blogger is operated and controlled by Google Inc., a company incorporated in Delaware in the United States, with its principal place of business in Mountain View, California", and that this was explained in the Google Terms of Service, to the detail of which he referred. He described the services provided by Google UK and went on

'Google UK does not provide any online services. It does not own Blogger and does not control the way in which Blogger works … Google UK does not specify or control how data is processed on Blogger or what material is made available.'"

12. The proper defendant to this action is Google LLC. (I understand Google Inc became Google LLC in 2017 following a change in the company's corporate structure: https://www.bloomberg.com/news/articles/2017-09-01/alphabet-wraps-up-reorganization-with-a-new-company-called-xxvi). This is confirmed by Google's current terms of service, which state:

"The Services are provided by Google LLC ("Google"), located at 1600 Amphitheatre Parkway, Mountain View, CA 94043, United States."

13. Google LLC is a corporation registered in Delaware and has its principal place of business in California. The Claimant therefore needs permission to serve outside the jurisdiction: see eg, Google Inc v Vidal-Hall [2015] 3 WLR 409, para 6:

"6. The claimants are domiciled in England. The defendant is a corporation registered in Delaware and has its principal place of business in California. The claimants therefore had to obtain the permission of the court pursuant to CPR 6.36 and Practice Direction (PD) 6B to serve the proceedings on the defendant in California."

14. After sending this draft judgment to ABC, I received from him a letter from Pinsent Masons to him dated 8 January 2018, which I had not previously seen. Pinsent Masons act for Google UK Ltd. The letter makes the same points that I have recognised in this judgment, namely, that the proper defendant to this action is Google LLC, and that permission to serve the claim form outside the jurisdiction is required.
15. Even leaving aside that the Claimant has tried to serve a company which no longer exists, ABC has not obtained the court's permission to serve Google LLC. Section 12 of the Human Rights Act 1998 applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression. The injunction sought by the Claimant would plainly have that effect. Section 12(2) provides that in such a case, if the person against whom the application for relief is made is neither present nor represented, no such relief is to be granted unless the court is satisfied (a) that the applicant has taken all practicable steps to notify the respondent; or (b) that there are compelling reasons why the respondent should not be notified. There are no such compelling reasons, and so in the absence of proper service on Google LLC in California I cannot grant the injunction even if it were otherwise appropriate to do so, about which I say nothing.