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The Exclusion of Privacy Matters from the Judgments Convention

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Abstract

In July 2019, after many years of work and lengthy negotiations, the Members of the Hague Conference on Private International Law concluded the historic 2019 HCCH Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (the ‘Judgments Convention’). One issue of particular focus in the later phases of the negotiations of the Convention was what, if any, judgments ruling on privacy law matters should be permitted to circulate under the Convention. Having acknowledged that privacy is an evolving, broad and ill-defined area of the law and that there are obvious differences in the development and operation of privacy laws and policies in legal systems globally, the Members of the Diplomatic Session on the Judgments Convention determined to exclude privacy matters from the scope of the Convention under Article 2(1)(l). The purpose of this short article is to describe how and why the Diplomatic Session decided to exclude privacy matters from the Convention and to offer some observations on the intended scope of that exclusion.

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Notes

  1. The Judgments Project refers to the work undertaken by the Hague Conference since 1992 on the international jurisdiction of courts and the recognition and enforcement of foreign judgments. For an overview of the lengthy history of the Judgments Project, see www.hcch.net (accessed on 29 November 2019); see also Goddard (2019), pp. 473–476.

  2. See Greenleaf (2019), pp. 14–18; Greenleaf (2017), pp. 14–26, who reports that in 2011, 76 countries were identified as having privacy laws and now some 132 countries are reported to have data privacy laws which concern both the public and private sectors.

  3. An impetus for countries to update their privacy laws has been the introduction of the EU’s General Data Protection Regulation (‘GDPR’), on the back of which many countries have introduced privacy laws and regulations. The recitals of the GDPR provide ‘Rapid technological developments and globalisation have brought new challenges for the protection of personal data. The scale of the collection and sharing of personal data has increased significantly. Technology allows both private companies and public authorities to make use of personal data on an unprecedented scale in order to pursue their activities. Natural persons increasingly make personal information available publicly and globally. Technology has transformed both the economy and social life, and should further facilitate the free flow of personal data within the Union and the transfer to third countries and international organisations, while ensuring a high level of the protection of personal data.’ Recital 6, GDPR. Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) [2016] OJ L 119/1, https://eur-lex.europa.eu/eli/reg/2016/679/oj (accessed 27 November 2019). See also Ipsos, World Economic Forum (2019).

  4. For the text of the Judgments Convention see HCCH (2019) The Judgments Project, https://www.hcch.net/en/instruments/conventions/specialised-sections/judgments (accessed 27 November 2019).

  5. This article is drawn in part from a note prepared on the possible exclusion of privacy matters from the scope of the Convention for the attention of the November 2017 Special Commission: North (2017).

  6. Gellman (2001), p. 193. In Australia, the New South Wales Law Reform Commission has cautioned that: ‘If a broad statutory cause of action along the lines of European models were to be introduced in New South Wales, the primary obstacle would be the lack of certainty that it would generate. Legislation providing only for a bald statement of the ability to bring an action for invasion of privacy or private life would make it extremely difficult to know when, and how, conduct would give rise to liability. The difficulty would be pronounced particularly if, as is likely, no satisfactory definition of privacy could be found for inclusion in legislation.’ New South Wales Law Reform Commission (2007), para. 6.8. See also Solove (2006), p. 479.

  7. Walters et al. (2019), p. 4.

  8. This short list is not intended to provide a complete or comprehensive overview of privacy claims around the world.

  9. Compare for example the United States of America (‘US’) case of Bonome v. Kaysen 17 Mass. L. Rptr. 695, 2004 WL 1194731 (Mass. Super. Ct. 2004), the Israeli Supreme Court decision in Ploni v. Plonit Civil Appeal 8954/11 (in Hebrew) and the decision of the Canadian Supreme Court in Aubry v. Éditions Vice Versa [1998] 1 S.C.R 591.

  10. See for example the Ontario Court of Appeal’s decision in Jones v. Tsige 2012 ONCA 32 para. 70, referring to the Restatement (Second) of Torts (2010): ‘One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person’.

  11. See, for example, Section 2(1)–(3) of the Israel Protection of Privacy Law, which includes claims for ‘wiretapping a person, where such wiretapping is prohibited by law’; ‘photographing a person while he/she is in the private domain’ and ‘spying on or trailing a person in a manner which is likely to harass him/her; or any other harassment’ (unofficial English translation).

  12. Neethling (2005), p. 215. See also, for example, Art. 110 of the General Rules on the Civil Law of the People’s Republic of China, which provides ‘Natural persons enjoy the right to life, physical rights, health rights, name rights, portrait rights, reputation, right of honour, privacy, marriage autonomy and other rights.’ https://www.dimt.it/images/pdf/GeneralRules.pdf (accessed on 27 November 2019).

  13. In Australia for example there is no basic right to personality or publicity; rather, any such rights are protected by acts concerning intellectual property and common law causes of action such as the tort of passing off, defamation and unjust enrichment: Slater (2001), p. 12. See also, Swee Gaik Ng (2008), p. 1.

  14. See generally Walters et al. (2019).

  15. See for example the GDPR.

  16. See for example the GDPR which provides for a combination of public and private enforcement and that blends public fines with private damages.

  17. The role of the Special Commission, which met four times, was to prepare a draft text as the basis for discussions at a Diplomatic Session. The text of the Judgments Convention was finalised at the Diplomatic Session held in mid-2019.

  18. At the time of writing, the Minutes of the Diplomatic Session, the working documents and the Explanatory Report by Garcimartín Alférez and Saumier (2020) (the ‘Explanatory Report’) are not publicly available. They will be made available in HCCH, Proceedings of the Twenty Second Session (2019)—Judgments, in mid-2020. The minutes of the Special Commission meetings and the working documents prepared by Members of the HCCH for discussion at those meetings are not available to the public.

  19. See North (2017), fn. 2.

  20. See North (2017), para. 2.

  21. See February 2017 draft Convention, https://www.hcch.net (accessed on 28 November 2019).

  22. See North (2017), paras. 47–52.

  23. See November 2017 draft Convention, https://www.hcch.net (accessed on 28 November 2019).

  24. 2018 draft Convention, Art. 2(1)(l) https://www.hcch.net (accessed on 28 November 2019).

  25. See Minutes No. 10, para. 25.

  26. See for example the European Convention on Human Rights, Art. 8.

  27. See Witzleb et al. (2014) pp. 1–4.

  28. New York is currently considering privacy legislation (NY Senate Bill 224), which provides stringent new privacy laws see https://www.nysenate.gov/legislation/bills/2019/s224. See also, California Consumer Privacy Act of 2018.

  29. Witzleb et al. (2014), p. 4; see also Whitman (2004).

  30. See Minutes No. 2, para. 37.

  31. UNCTAD (2016), p xi.

  32. See Cole (2014), p. 96.

  33. Ibid.

  34. See Witzleb et al. (2014), p. 2.

  35. See Cole (2014), p. 96.

  36. See UNCTAD (2019).

  37. See Minutes No. 2, para. 44.

  38. Garcimartín Alférez and Saumier (2018), para. 290, providing that ‘The word “manifestly” has been used in previous cases to discourage the overuse of the public policy exception and to limit its use to situations where recognition and enforcement would lead to an “intolerable result”’.

  39. See Minutes No. 2, para. 36.

  40. For example, the public policy exception has never been applied to refuse recognition of a foreign civil or commercial judgment in Australia: see Douglas et al. (2019), pp. 422–423.

  41. See Minutes No. 2, paras. 36–37.

  42. See February 2017, November 2017 and 2018 versions of the draft Convention, www.hcch.net (accessed on 28 November 2019).

  43. See for example Regulation (EC) No. 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) [2007] OJ L 199/40, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32007R0864 (accessed on 29 November 2019), which excludes from its scope ‘non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation’.

  44. See for example the exclusion of intellectual property in Art. 2(1)(m) of the Convention.

  45. Art. 20 of the Convention.

  46. See Art. 2(1)(k) of the November 2017 draft Convention (emphasis added), www.hcch.net (accessed on 28 November 2019).

  47. See Minutes No. 5, paras. 39–43.

  48. See Minutes No. 8, paras. 102–119 and Minutes No. 10, paras. 6–25.

  49. Minutes No. 8, para. 103.

  50. See Minutes No. 8, para. 104.

  51. Minutes No. 8, para. 114.

  52. See Minutes No. 8, paras. 102–119 and Minutes No. 10, paras. 6–25.

  53. See Minutes No. 2, para. 39.

  54. See Campbell v. MGN [2004] UKHL 22; however, see the later decision Vidal-Hall & Ors v. Google Inc [2015] EWCA Civ 311 in which it was commented that ‘there are now two separate and distinct causes of action: an action for breach of confidence; and one for misuse of private information’: para. 21. See also, the 2004 decision of the New Zealand Court of Appeal in Hosking v. Runting [2004] NZCA 34, in which the Court of Appeal recognised a common law tort of breach of privacy that is separate and distinct from the tort of breach of confidence, para. 117.

  55. See Australian Broadcasting Corporation v. Lenah Game Meats Pty Ltd (2001) 208 CLR 199.

  56. See Minutes No. 8, para. 103.

  57. See Minutes No. 8, paras. 110–111.

  58. See Minutes No. 8, paras. 114–118.

  59. There is one exception to this general rule, which is found in Art. 6 of the Convention. Art 6 provides one exclusive ground of jurisdiction for judgments ruling on rights in rem in immovable property.

  60. See Art. 21 of the Convention which provides ‘[t]he Secretary General of the Hague Conference on Private international Law shall at regular intervals make arrangements for review of the operation of this Convention, including any declarations and shall report to the Council on General Affairs and Policy’.

  61. See for example the work of the International Law Association Committee on the Protection of Privacy in Private International and Procedural Law (2018), https://www.ila-hq.org/index.php/committees (accessed on 27 November 2019).

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    Cara North

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The author commenced work on the Judgments Project in 2013 as a Legal Officer to the Permanent Bureau of the Hague Conference on Private International Law (the ‘HCCH’) and then subsequently as a Legal Consultant from 2015 through to the completion of the Convention in July 2019. All views expressed in this article are the author’s personal views.

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North, C. The Exclusion of Privacy Matters from the Judgments Convention. Neth Int Law Rev 67, 33–48 (2020). https://doi.org/10.1007/s40802-020-00155-6

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