Privacy, Data Protection and Retention
Google Spain SL v. Agencia Española de Protección de Datos
Closed Mixed Outcome
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A court in Paris, France ordered Twitter to provide a woman with information to enable her to learn which Twitter user had been posting content that was critical of her. After the woman learnt of the use of a hashtag which accused her of exploiting her children by posting videos of them on YouTube, she approached the court seeking an order that Twitter provide her with information of the user who created the hashtag so that she could bring defamation proceedings against that user. The Court noted that, given the short time period internet service providers are obliged to retain user data under French law, allowing an individual to bring an application to receive information about a social media user is a useful mechanism available to them in protecting their honor.
On July 25, 2020, a French woman, G.B., learnt of a hashtag #LiberezNeo (Free Leo) being used on YouTube from an anonymous account, JOKGANG. G.B had a YouTube channel where she posted videos of her family, including her children, Néo and Swan. G.B. also became aware that the hashtag was being used on Twitter. The #LiberezNeo hashtag criticized her for an alleged exploitation of her children, and called for Néo to be “liberated” from his mother’s bad influence.
G.B. requested that the constant d’huissier (a court official, similar to a notary public) look into the use of the hashtag, and the huissier‘s report confirmed that the hashtag was being used to give visibility to the message of alleged exploitation.
G.B. approached the Tribunal de Grande Instance (TJ) in Paris, seeking an order through a summary procedure directing Twitter to disclose identification information about the creator of the hashtag and the owner of the account JOKGANG.
Article 6.II of the French Law for the Confidence in the Digital Economy (LCEN) requires Internet hosting providers to hold and retain data that identifies any person who has contributed to the creation of online content. The Decree No. 2011-219 on the storage and communication of data identifying any person who has contributed to the creation of online content, adopted pursuant to Article 6-II of LCEN requires hosting providers to keep all users connection and navigation data for every creation of online content. The retention period in this regard is one year from the termination of the contract entered into during the creation of an account or the closure of the account.
Article 145 of the French Civil Procedure Code provides that if there is a legitimate reason to preserve or to establish, before any legal process, the evidence of the facts upon which the resolution of the dispute depends, legally permissible preparatory inquiries may be ordered at the request of any interested party, by way of a petition or by way of a summary procedure.
Delphine Chauchis, the first assistant vice-president of the TJ, delivered the Court’s judgment. The central issue for the Court’s determination was whether it was appropriate to grant G.B.’s summary procedure.
G.B. argued that she had a legitimate reason to ask for an interim injunction under Article 145 of the Civil Procedure Code, which would allow her to identify the author of the injurious messages undermining her honor and reputation. G.B. explained that she had lodged a criminal complaint for defamation with the investigatory magistrate of the same Court but also brought summary procedure at issue because of the risk of loss of evidence given the short data retention period under Article 6.II of the LCEN.
Twitter argued that the demand for an injunction was unnecessary and so should be rejected on the grounds that G.B. had already filed a criminal complaint and that data collection fell within the competence of that judicial authority.
The Court found that the fact that G.B. had already brought a criminal complaint before a judge did not preclude her from seeking an interim injunction under Article 145 of the Civil Procedure Code, given the one-year retention period of the identification data. The Court held that it was legitimate to seek redress for harm allegedly caused by the tweets, and taking into account given the date the tweets were posted and the social media accounts were created, the request for information was a necessary and useful measure available to G.B. in resolving the issue.
The Court acknowledged that G.B. was directly targeted by the messages published on Twitter, but stated that, in this matter, its main task was not to strike a balance between the rights of freedom of expression and harm to reputation implicated in this case. However, it recognized that to ensure that the measure it imposed was proportional, it ordered that the obligation for Twitter to provide G.B. with identification data should be limited to those aspects necessary only for the resolution of the case.
Accordingly, the Court ordered that Twitter provide G.B. with the following information: the types of protocols and the IP address used to connect to the service; the user name at the date of creation of the account; the date of creation of the account; the first name and surname or the company name of the account holder; the pseudonyms used; and the e-mail addresses or associated accounts. Twitter was given 10 days to provide G.B. with this information.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In limiting the order to what is necessary for G.B. to identify the user responsible for content critical of her on Twitter, the Court limited the right to freedom of expression only to the extent necessary to protect an individual’s reputation.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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