Unbeknownst to many, there is a legal principal known as the “Passive Personality Principle” that some countries have begun to apply as a result of worldwide problems of terrorism and transnational criminal organizations. A few weeks ago, the European Court of Justice, the European Union’s highest court, indirectly applied this doctrine in ruling that Google and other search engines must remove links that are “deemed irrelevant or no longer relevant”.
In Google v AEPD (Agencia Española de Protección de Datos) and Mario Costeja Gonzalez, Gonzalez argued that his privacy was being violated every time he Googled his name and a 1998 La Vanguardia newspaper article detailing that his house had been auctioned off was showing up in the search results. Gonzalez, a lawyer, argued that the information was no longer relevant, as the debt had been paid off and therefore he had an inherent right that the “irrelevant” information be forgotten. Today, I would like to focus on the issue of passive personality principal instead of the “right to be forgotten” issue brought forth by Mario Costeja Gonzalez.
The “Passive Personality Principle” argues that a country may claim jurisdiction over an individual for crimes committed abroad that affect the country’s citizens. Clearly, the principal is relevant when a terrorist, who has never entered the United States, plans and directs a terrorist action within the United States. Many would argue that the United States has the inherent right to protect the interests of its citizens by prosecuting a terrorist outside of the United States borders.
The problem though is that laws, by their very nature must have finite boundaries that both define the nature of the crime and its jurisdiction in order to balance the rights of those it protects as well as the human rights of those it prosecutes. To be clear I am not proposing that terrorists should not be sought out and prosecuted. However, laws are slippery slopes that can and will likely be abused.
The principle has become accepted as a basis under international law, although it remains controversial. In 1886, Mexico asserted passive personality jurisdiction in what is now known as the Cutting Case. In that case, Cutting, a US citizen, published a newspaper article criticizing a Mexican citizen.
Mexican officials arrested Cutting on one of his visits to Mexico and charged him with criminal libel. The United States protested the application of the principal over its citizen. The case was settled diplomatically before a decision could be established on the legality of passive personality principle.
However, the US has asserted the principle before. In United States v Roberts, a 1998 case, the US prosecuted a citizen of Saint Vincent and the Grenadines for sexual abuse of a US citizen minor. The crime was allegedly committed in international waters on board a Liberian flagged ship owned by a Panamanian company. An Eastern District court in Louisiana indicted the defendant in federal court. The indictment was upheld by a federal district court under the passive personality principle. The victim had no recourse to prosecute the foreign citizen because of the various jurisdictions involved.
Other principles and doctrines have also been applied.
Among these are the principles of “universal jurisdiction” and the “affects doctrine” that the US has used to enforce intellectual property rights over citizens of other countries. Universal jurisdiction asserts that a country may assert judicial authority over a citizen of a third country when the accused threatens any citizen of the accusatory country. Under this theory if an individual directly threatens or hurts a US citizen, for example, even though the perpetrator is not a citizen of the US, or present in the US, the individual may nonetheless be prosecuted under this principle.
Application of the universal jurisdiction is best known by the October 16, 1998 arrest of former Chilean dictator Augusto Pinochet Ugarte who was arrested in England under a Spanish arrest warrant issued by Baltasar Garzón.
Pinochet was being prosecuted by the Spanish judiciary in an attempt to hold him accountable for the murder of Spanish citizens during Argentine’s Dirty Wars. In March 2000, England released Pinochet without extraditing him to Spain as the Spanish arrest warrant had requested.
In essence, the doctrines, or principles assert that a court may extend its jurisdiction over citizens of other countries. Normally judicial jurisdiction is established by subjecting oneself to the legal jurisdiction of a country by accepting citizenship in a country or by physically entering the jurisdiction of the country.
Many mechanisms and legal principals have been established to assert jurisdiction over noncitizens who have not visited a specific country. Some of these are even based on the economic security of the country-asserting jurisdiction. I have shared with you the two most obvious ones.
However, what does the Google links case have to do with universal jurisdiction or the passive personality principle?
To be clear, the May 13, 2014 Google v Costejo Gonzalez (European Court of Justice C-131/12) did not directly assert either of the doctrines I have outlined herein. In fact, by the mere fact that Google has a physical presence in Spain it has put itself under the jurisdiction of the Spanish legal system. However, the Gonzalez case ties in together multiple topical issues involving the Internet, freedom of speech and privacy. For the purposes of my illustration let’s ignore, for a moment, the fact that Google has a physical address in Spain.
Mario Costeja Gonzalez, a Spanish citizen, had his house auctioned off in 1998 to satisfy a debt. The local newspaper published the account of the auction. Jump forward to a few days before the court ruling and if you Googled Mario Costeja Gonzalez one of the prominent search results would be the newspaper account of the auction and the debt. The auction and debt are an irrefutable fact. The Google search results are links to an account published by a newspaper based on public records.
In other words, the results of Gonzalez’ debt and auction are irrefutable and based on public legal records. Google is nothing more than a conduit linking these things together.
Google is a US-based company. (We are ignoring in this illustration Google’s presence in Spain) Gonzalez has argued in court that the search results are damaging to his reputation and as such he asserting the “right to be forgotten”. Basically, he wants Google to erase the negative search results.
Obviously, this goes counter to the notion that public information belongs in the public realm regardless of how it damages anyone provided that the information is factual. This is the basis of the “freedom of expression” doctrine in the US. Everyone agrees that the Google search results are valid and factual.
However, the European Union has begun implementing the right to privacy on its citizens especially when it comes to Internet activities. Some of these are draconian in nature as it makes a service provider liable for the actions of others.
Under a normal theory of legal jurisdiction, a service provider like Google should not be subjected to the laws of another country. In this case, the European Union is requiring that Google remove an item that most of us embrace as the cornerstone of Democracy however inconvenient it may be to someone.
This issue may seem benign to some but consider the following. A country passes a law against criticizing a sovereign leader on a blog. China, Iran and Vietnam have recently been in the news for arresting bloggers for criticizing their leadership. Some would argue that those arrested are subject to their country’s laws and as such they know the consequences of their actions.
However, consider the case of Joe Gordon, a US citizen, who was arrested by Thai officials in May 2011 for writing articles deemed by Thai officials as defaming the Thai Monarchy. Gordon, a used car salesperson from Colorado, was originally sentenced to five years. The original sentence was cut in half because he had pleaded guilty in court. In July 2012, he was released after the Thai king pardoned him. It is important to note that Gordon posted the content he was prosecuted while in the US. He was arrested during a visit to Thailand.
Although the Joe Gordon case involves an individual, who purposely put himself under the jurisdiction of Thailand by visiting, the fact remains that his crime was not actually a crime in the US and he did not post the items in question while in Thailand. Gordon, though, was prosecuted and he pleaded guilty to a crime that was not a crime under US law. Remember that he is a US citizen acting within the confines of the US. Although Gordon was arrested while visiting Thailand the fact remains that countries have already shown that they will extend legal jurisdiction, even in third-party countries, in pursuit of the enforcement of their laws. The case of Augusto Pinochet is clear proof of that.
In addition, though the recent case of Google involves a company who has allowed Spanish jurisdiction over it, it clearly shows how the Internet is transcending borders and creating legal jurisdictional issues on a regular basis.
As the world continues to react to the realities of terrorism and transnational criminal organizations there will continue to be a tendency to transcend national borders in an attempt control international crime. However, the moral code each country decides to impose on its citizens should not subject other citizens to legal jeopardy.
This is where the concepts of universal jurisdiction and passive personality principle can be abused to serve the needs of a specific country. This is even more important as the Internet continues to change the face of information flows.