from the good-for-them dept
We recently wrote about how a guy in France, Michael Francois Bujaldon, was using the GDPR to try to delete a public court docket involving a case in which he is a defendant, and has been sued for real estate and securities fraud. As we noted, at least two websites that host public court dockets have felt compelled to either delete or change that particular docket.
Last week, the Free Law Project, who operates the CourtListener website (and runs RECAP — the very useful system that will help automatically free up costly PACER dockets and documents that other RECAP users visit) noted that it, too, had recently received a GDPR demand about a docket (they do not say if it was the same one) and then go into a detailed description of why they are not taking action. The post notes that the general policy of the site has always been that they won’t remove a docket without a court order (though it may remove links from search engines).
More importantly, however, the Free Law Project notes that it is not subject to the GDPR:
As a California public benefit corporation with 501(c)(3) non-profit status in the United States, we categorically reject the notion that we are subject to laws or regulations promulgated by the European Union or its member states.
We collect United States legal materials for a U.S. audience. Our principal place of business, our Executive Director, our board members, our servers, our ISP, and all of our regular activities are located within California. We place no advertisements in European jurisdictions, and have never purposefully directed any of our activities at any European state or its citizens.
This certainly sounds good, though folks in the EU may disagree. The GDPR was written to strike fear into non-EU businesses that they, too, are covered by the law, which raises all sorts of jurisdictional fights. I’ve suggested in the past, and I stand by the idea that sooner or later a GDPR claim is going to come up against the SPEECH Act, which says that foreign judgments that would be found unconstitutional under the First Amendment cannot be enforced in the US. I would imagine trying to delete public dockets might fit that bill, though who knows if anyone’s going to sue the Free Law Project (for the record: I certainly hope no one does).
The Free Law Project then goes even further, noting that even if it was subject to the GDPR (which it is not), it wouldn’t need to remove the content as requested:
First, the GDPR recognizes a right of freedom of expression, and Free Law Project firmly believes that its freedom to speak includes the right to make available these U.S. primary legal materials.
Second, the GDPR also recognizes an exception for archiving purposes in the public interest, for scientific or historical research purposes, or statistical purposes. This is precisely the activity of Free Law Project, which aims to create an archive of U.S. legal materials for the public interest and for scientific, statistical, and historical research purposes.
This also makes sense (and the blog post goes into even more detail). But, again, we’ve already seen at least two other sites feel they were required to act and remove or alter the dockets. So while it’s great that the Free Law Project/CourtListener feels okay in pushing back against this claim, it doesn’t change the fact that these efforts have already been successful. It also doesn’t change the fact that the Free Law Project has to spend a lot of time and effort trying to figure out how it needs to deal with a law in a totally different continent.
We’re going to see many more examples of this sort of thing. I know lots of people cheered on the GDPR, arguing that any law that says it’s to help you protect your data and privacy must be good, but the consequences of this law are incredibly far reaching, and it will be years, if not decades, before people understand just how much damage it has created as well.