"Meta Tags" are HTML codes enetred into the source code of a webpage providing for information on the nature and content of such webpage, which are used to facilitate the indexing and referencing of such a webpage in search engines.
On September 10, 2014, the French Supreme Court (Cour de cassation) issued a decision in relation to the use of personal data as Meta Tags.
The author of a blog was in conflict with three people (the "Plaintiffs") concerning one of his draft publication and published negative information on the Plaintiffs, as well as the subpoena that was delivered to him. In addition, he entered the first and last names of the Plaintiffs as Meta Tags in the source code of its blog/website to direct Internet users to content relating to the Plaintiffs. The Plaintiffs claimed that the author made an unauthorized use of their personal data in breach of their right to privacy on the basis of Article 8 of the ECHR and Article 9 of the French Civil Code. As a consequence, they requested an order to cease such use of their names. The request being denied in first instance as well as by the Court of Appeal, they lodged an appeal before the French Supreme Court.
The French Supreme Court dismissed the Plaintiffs' claims. In particular, it fully disregarded the Plaintiffs' analogy between the facts at stake and trademark infringement resulting from the use in bad faith of a third party's trademark as a Meta Tag.
More importantly, the French Supreme Court ruled that (i) there is no misuse of the first and last names of an individual whenever such names are used as Meta Tags with no associated use of any additional personal information; and (ii) the use of an individual’s names as Meta Tags, associated with additional personal information, constitutes a misuse whenever the content of the webpage referenced by such Meta Tags is objectionable.
This decision is notable as, for once, it focuses on the use of Meta Tags in relation to personal data and not in relation to trademarks or company names. Indeed, French courts have already ruled, on many occasions, that the use in bad faith of trademarks as Meta Tags may constitute trademark infringement (ECJ, March 23, 2010, C-236/08, C-237/08, C-238/08 and French Supreme Court, July 13, 2010, n°06-20.230, n°05-14.331, n°08-13.944).
On the merits, the ruling is particularly interesting as it seems that the French Supreme Court chose not to apply the French Data Protection Act (I) and to amend the rules applicable to content removal (II).
1. A Challenged Applicability of Data Protection Rules
In their appeal, the Plaintiffs claimed that the use of personal data is governed by the French Data Protection Act of January 6, 1978 n°78-17, as amended by Law n°2004-801 of August 6, 2004 (together, the "DPA") and that any data processing should be subject to preliminary formalities subject to criminal sanctions.
Although the decision does not expressly refer to the DPA but only to provisions relating to the right of privacy, the French Supreme Court confirmed that the first and last names of an individual are personal data. However, it considered that the mere use of the first and last names of an individual as Meta Tags – to the exclusion of any other personal data – does not qualify as a data processing and thus does not constitute a misuse of the individual's personal data.
Yet, under article 2 of the DPA, first and last names are personal data and the use of such personal data as Meta Tags should qualify as a data processing subject to the DPA.
If we were to follow the French Supreme Court's rationale and consider that the DPA would only be applicable in case of use of the first and last names of an individual in association with additional personal data (and if the referenced page contains objectionable content), would it mean that the user would then have to obtain the individual’s prior consent and carry out the prior formalities as requested by the DPA?
It thus appears that the French Supreme Court interpreted the DPA and, in particular, the definition of 'data processing', on a restrictive basis in a way that promotes freedom of speech. Indeed, it confirmed the ruling of the Court of Appeal, which stated that the use by a third party of the first and last names of an individual cannot be subject to such individual’s consent as it would violate the third party's freedom of speech, which can only be limited in case of the individual's privacy harm.
This decision also implies that the faulty use of personal data would only result from the wrongful nature of the information referred to by personal data and not from the mere use of such personal data.
2. Criterion for Content Removal: Objectionable Content vs. Illicit Content
In the case at stake, the French Supreme Court ruled that there is misuse of the individual's first and last names as Meta Tags if additional personal data are to be used and the webpage referenced by those Meta Tags contains 'objectionable content', which was not the case in this instance.
Under Article 6 of the Law for Trust in the Digital Economy, hosting service providers must promptly remove 'manifestly illicit content' when they become aware of it; yet, French courts tend to consider that breach of privacy should not meet the criterion of manifestly illicit content.
Accordingly, by using the phrase "objectionable content" in relation to privacy matters, the French Supreme Court may raise difficulties in interpretation with respect to providers' removal obligations. In particular, it is uncertain whether this word only refers to illicit content (i.e. content which use has been found illicit by Courts) or also includes merely contentious content.
In addition, the world "objectionable" may prohibit any judicial action based on true content that may nevertheless cause damage to an individual, which may contradict the position of the ECJ in its decision of May 13, 2014 in relation to the 'right to be forgotten' (ECJ May 13 2014, C-131/12: JurisData n° 2014-009597; JCP G 2014, 768, L. Marino).
In light of the above, we believe that the position of the French Supreme Court in relation to the use of personal data as Meta Tags should be closely monitored.