Google LLC, venant aux droits de Google Inc. v Commission nationale de l’informatique et des libertés (CNIL)

Territorial scope of EU data protection law: The present case falls within the territorial scope of GDPR because “it is apparent from the information provided in the order for reference, first, that Google’s establishment in French territory carries on, inter alia, commercial and advertising activities, which are inextricably linked to the processing of personal data carried out for the purposes of operating the search engine concerned, and, second, that that search engine must, in view of, inter alia, the existence of gateways between its various national versions, be regarded as carrying out a single act of personal data processing”. (¶¶48-52)

It follows from Article 4(1)(a) of Directive 95/46 and Article 3(1) of Regulation 2016/679 that both that directive and that regulation permit data subjects to assert their right to de-referencing against a search engine operator who has one or more establishments in the territory of the Union in the context of activities involving the processing of personal data concerning those data subjects, regardless of whether that processing takes place in the Union or not.

In that regard, the Court has held that the processing of personal data is carried out in the context of the activities of an establishment of the controller on the territory of a Member State when the operator of a search engine sets up in a Member State a branch or subsidiary which is intended to promote and sell advertising space offered by that search engine and which orientates its activity towards the inhabitants of that Member State (judgment of 13 May 2014, Google Spain and Google, C‑131/12, EU:C:2014:317, paragraph 60).

In such circumstances, the activities of the operator of the search engine and those of its establishment situated in the Union are inextricably linked since the activities relating to the advertising space constitute the means of rendering the search engine at issue economically profitable and that search engine is, at the same time, the means enabling those activities to be performed, the display of the list of results being accompanied, on the same page, by the display of advertising linked to the search terms (see, to that effect, judgment of 13 May 2014, Google Spain and Google, C‑131/12, EU:C:2014:317, paragraphs 56 and 57).

That being so, the fact that the search engine is operated by an undertaking that has its seat in a third State cannot result in the processing of personal data carried out for the purposes of the operation of that search engine in the context of the advertising and commercial activity of an establishment of the controller on the territory of a Member State escaping the obligations and guarantees laid down by Directive 95/46 and Regulation 2016/679 (see, to that effect, judgment of 13 May 2014, Google Spain and Google, C‑131/12, EU:C:2014:317, paragraph 58).

In the present case, it is apparent from the information provided in the order for reference, first, that Google’s establishment in French territory carries on, inter alia, commercial and advertising activities, which are inextricably linked to the processing of personal data carried out for the purposes of operating the search engine concerned, and, second, that that search engine must, in view of, inter alia, the existence of gateways between its various national versions, be regarded as carrying out a single act of personal data processing. The referring court considers that, in those circumstances, that act of processing is carried out within the framework of Google’s establishment in French territory. It thus appears that such a situation falls within the territorial scope of Directive 95/46 and Regulation 2016/679.