Italian Supreme Court admits possibility of global delisting/removal orders … at least under Italian law

Unforgettable Kat ...

What can be the territorial scope of an injunction requiring a search engine to delist certain search results?

This is a fundamental question when it comes to ensuring the effective protection of rights, including but not limited to IP rights, on the internet. It is also a question without an easy answer, given the conflicting rights and interests that come into consideration and require to be fairly balanced.

As IPKat readers who follow data protection/privacy issues will know, the territorial scope of delisting has given rise to more than an headache in the context of the truly European right to be forgotten, which the Court of Justice of the European Union (CJEU) first recognized in its 2014 landmark decision in Costeja v Google Spain [IPKat here].

Further to the Costeja judgment, another referral followed, asking indeed the CJEU to clarify the territorial scope of delisting. In its 2019 judgment in Google v CNIL [IPKat here], the CJEU held that the operator of a search engine is required to carry out the de-referencing of search results on all the search engine’s versions corresponding to the EU Member States and to put in place measures discouraging internet users from gaining access, from one of the Member States, to the links in question which appear on versions of that search engine outside of the EU.

Some, seemingly including CNIL itself, read the CNIL judgment as ruling out the possibility of extra-EU or even global delisting/removal orders, thus limiting the territorial scope of the right to be forgotten to the sole EU territory.

Just a few days after CNIL, however, the CJEU ruled once again on the territorial scope of injunctions relating to the protection of rights online. It did so in Glawischnig-Piesczek v Facebook Ireland. This time it was in relation to the protection of personality rights online (the background national proceedings related to defamation carried out through a Facebook post) but, as readers with an interest in online IP issues will in particular know, this has now become one of the leading judgments also insofar as copyright is concerned, including having regard to Article 17 of the DSM Directive [Katposts here] as interpreted by the CJEU in Poland [Katposts here]. In Glawischnig-Piesczek CJEU held that, in accordance with national law, a court in a Member State could also issue injunctions with extra-territorial, if not global, effect.

What to make of all this CJEU case law then?

Earlier this week an answer came from the Italian Supreme Court, which held (ordinanza 34658/2022) that an Italian court or other competent authority may have jurisdiction to issue a global delisting order. In so doing, the Italian court refused to make any referral to the CJEU, finding instead that the guidance from the CJEU was clear and such as to provide “national judges with the necessary criteria to address and solve the legal issue [concerning] the admissibility of an extraterritorial delisting or removal order against a search engine operator” [my own translation from Italian].

Let’s see what happened and how the Supreme Court did reason.

Background

In 2017, the Italian Data Protection Authority (DPA) partly granted an application from an Italian person to delist search results relating to them from not just EU, but also non-EU versions of Google Search. The request concerned a right to be forgotten claim and was inter alia justified by the circumstance that the applicant had professional interests also outside of the EU.

... going global

Google appealed the decision to the Milan Court of First Instance which, in 2020, annulled the DPA decision insofar as the injunction extended to non-EU versions of Google Search.

At this point, it was the DPA’s turn to appeal. It did so to the court of last resort in Italy, that is the Supreme Court. It is worth recalling that this is not a court on the merits, but is rather tasked with ensuring the correct interpretation and application of the law.

The Supreme Court’s decision

The Italian Supreme Court noted that the right to be forgotten is expression of the fundamental right to dignity, privacy and personal identity (specifically: Articles 1, 7 and 8 of the EU Charter of Fundamental Rights) and needs to be balanced against the general right to freedom of expression and information (Article 11 of the Charter), as well as the economic interests of the operator of a search engine (Article 16 of the Charter).

This said, the Court reviewed the CJEU decisions in CNIL and Glawischnig-Piesczek. While prima facie the outcome of the latter could be intended as departing from the former insofar as the scale of delisting is concerned, this would be an incorrect conclusion. The Court stressed in particular what the CJEU said at paragraph 72 of CNIL:

Lastly, it should be emphasised that, while, as noted in paragraph 64 above, EU law does not currently require that the de-referencing granted concern all versions of the search engine in question, it also does not prohibit such a practice. Accordingly, a supervisory or judicial authority of a Member State remains competent to weigh up, in the light of national standards of protection of fundamental rights (see, to that effect, judgments of 26 February 2013, Åkerberg Fransson, C-617/10, EU:C:2013:105, paragraph 29, and of 26 February 2013, Melloni, C-399/11, EU:C:2013:107, paragraph 60), a data subject’s right to privacy and the protection of personal data concerning him or her, on the one hand, and the right to freedom of information, on the other, and, after weighing those rights against each other, to order, where appropriate, the operator of that search engine to carry out a de-referencing concerning all versions of that search engine.

According to the Italian Supreme Court the guidance that can be inferred from that paragraph, which is not a mere “obiter dictum”, is “absolutely clear and does not leave room for any ambiguity”. Moreover, use of the expression “require” does not imply a mere invitation whether to do something or not, but rather an obligation to do something. Specifically:

EU law does not impose upon Member States to provide that a person who invokes the right to be delisted could obtain the desired result in relation to all versions, including non-EU ones, of a search engine. Nevertheless, EU law does not prohibit Member States to consent this result either. It follows that each Member State – including Italy – is free to provide in its own law, in compliance with the national standards of protection of fundamental rights, a balance between the right of a person to protect their private life and their personal data and the right to freedom of information, so to request the operator of a search engine to de-index results on all versions of its own search engine, including non-EU ones. [again, my own translation]

In so doing, the Italian Supreme Court also considered the opposite conclusions reached by courts in France, Germany and Israel regarding the scale of delisting irrelevant. This is because, as held by the CJEU itself, the territorial or extraterritorial reach of an injunction is a matter of national law.

According to the Court, it is the Italian Constitution itself that warrants an extraterritorial protection of the fundamental rights supporting the right to be forgotten, given the insufficiency of the protection resulting from sole EU-wide delisting.

All this said, the Court conceded that issues might arise “solely” having regard to the recognition and execution of an Italian order extraterritorially. The same, admitted the Court, would be true of a foreign order in need of recognition and execution on the Italian territory: this would not be possible if such an order was contrary to public order.

In conclusion, the Italian Supreme Court ruled that the DPA may, if appropriate, issue global delisting orders.

Comment

The decision of the Italian Supreme Court is of great importance, and its impact is likely to be felt widely, including in relation to situations in which rights other than the right to be forgotten are at issue. This is likely to be the case of IP too: albeit that IP rights are formally territorial, I can imagine situations in which an extraterritorial or even global order could be contemplated by a court or other competent authority.

Two further points are worthy of consideration.

First, the issue of recognition and execution of an extraterritorial order is certainly not a minor aspect. Do you for example remember what happened in the US with the Canadian global order in Equustek? All this has the potential to constrain significantly the actual scope and effectiveness of extraterritorial injunctions.

Secondly, the decision confirms once again the pervasive centrality of the CJEU Glawischnig-Piesczek judgment. Interestingly enough, there the CJEU referred to the principle of international comity to seemingly suggest the need for a certain self-restraint on the side of national courts or authorities contemplating issuing extraterritorial orders. According to the Italian Supreme Court, however, international comity is something that is not codified and does not represent a “structural obstacle” to the availability of extraterritorial injunctions.