Thursday, 31 May 2012

Google's New Privacy Policy: the CNIL Sends Google an Additional Questionnaire

The French data protection authority, the CNIL (Commission Nationale de l'Informatique et des Libertés), was invited by the Article 29 Working Party (which brings together all the data protection authorities of the European Union) to take the lead in the analysis of Google's new privacy policy, which took effect on 1 March 2012.

On 16 March 2012, the CNIL sent Google a detailed questionnaire on its new confidentiality rules (questionnaire). See our post: The French Data Protection Authority Questions Google On Its Privacy Policy.

On 5 and 20 April 2012 Google answered the first questions.

The CNIL considered that Google's answers are often unclear and/or incomplete, and therefore sent an additional questionnaire on 22 May 2012; Google's reply is expected for 8 June 2012.

The CNIL wants clear explanations regarding:
- the processing of personal data (links between the collected data, the purpose and the recipients);
- the maximum retention period of the data;
- the combination of data services (purpose and breadth of the combinations),
- the actual effects of Google's opt-out mechanisms and the validity as a means to exercise the right to oppose;
- the way in which the ePrivacy Directive is applied for "passive users" of Google's services (advertising, analytics, +1 button) when they visit third-party sites.

After receiving Google's answers, the CNIL will then present its report to the Article 29 Working Party, which will state its position and send to Google, before mid-July, its recommendations as to the improvements that should be made in order to comply with the European data protection rules.

Read the additional questionnaire sent to Google: Additional questionnaire

Sunday, 20 May 2012

European Court of Justice: the Functionality of a Computer Program and the Programming Language Are Not Protected by Copyright

European Court of Justice, 2 May 2012, Case C406/10

SAS Institute Inc. developed the SAS System: an integrated set of programs which enables users to carry out data processing and analysis tasks such as statistics.

SAS Institute Inc. brought a copyright infringement case against World Programming LTD (WPL), which had lawfully acquired a licence for the SAS System in order to study and observe the SAS System and create alternative software capable of executing application programs with globally the same functionalities. However, WPL did not have access to the source code of the SAS System, nor was WPL allowed to copy it.

The European Court of Justice ruled that "Article 5(3) of Directive 91/250 must be interpreted as meaning that a person who has obtained a copy of a computer program under a licence is entitled, without the authorisation of the owner of the copyright, to observe, study or test the functioning of that program so as to determine the ideas and principles which underlie any element of the program, in the case where that person carries out acts covered by that licence and acts of loading and running necessary for the use of the computer program, and on condition that that person does not infringe the exclusive rights of the owner of the copyright in that program".

Sunday, 13 May 2012

“Google Suggest": Google Condemned for Its Keyword Suggestion System

High Court of First Instance of Paris, Chamber 17, 15 February 2012, Kriss Laure c. Google Inc. and Larry P.,

Since 2009, Google has been condemned several times by the French Courts in defamation and insult cases relating to its “Google Suggest" system. For instance, in a decision of 14 December 2011, the Court of Appeal of Paris condemned Google Inc and its director of publication for an insult that was generated by Google’s keyword suggestion system. The court considered that associating the term “crook" and the corporate name of a company is public abuse on the part of Google.

In the present case, the High Court of First Instance of Paris ("Tribunal de grande instance de Paris"), in a judgment dated 15 February 2012, decided that Google’s keyword suggestion system caused public abuse by associating the term “sect" with the name of an association.

If associating the term “sect" with the name of an organisation or a person incontrovertibly constitutes public abuse, it is questionable whether Google has actually committed a criminal act in this case, since its keyword suggestion system simply reflects what the users enter into the search engine, i.e. the name of the organisation with the term “sect".

Friday, 11 May 2012

The French Supreme Court Rules That eBay is Not a Hosting Provider

French Supreme Court, 3 May 2012
eBay Inc., eBay International / LVMH, Parfums Christian Dior

The Commercial Chamber of the French Supreme Court (“Cour de Cassation"), in three decisions rendered on the same day, ruled that “the eBay companies did not carry out a mere hosting activity but played, irrespective of any option taken by the sellers, an active role that gave them the knowledge of or control over the data that they stock, which does not allow them to benefit from the limitation of liability system provided by section 6.1.2 of the 21 June 2004 Act and section 14 § 1 of the 2000/31 directive".

Indeed, the Supreme Court considers that eBay has an active role in its online marketplace, since it uses optimisation means for the transactions that it puts at the disposal of the sellers, sends unsolicited messages to the buyers to invite them to buy, and sends invitations to the unsuccessful bidders for them to participate in other offers.

EBay is therefore likely to be held liable for the infringements that take place on its Internet site because of its active role which gives it the knowledge of and control over the unlawful selling offers that it stocks.

Read the decision: