JURISDICTION AND APPLICABLE LAW FOR INFRINGEMENTS OF PERSONALITY RIGHTS COMMITTED ON THE INTERNET JUNE 2012

BPP LAW SCHOOL OPINION PIECE - INFRINGEMENTS OF PERSONALITY RIGHTS COMMITTED ON THE INTERNET – JUNE 2012

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INTRODUCTION The Grand Chamber of the European Court of Justice (ECJ) has interpreted Article 5(3) of Regulation (EC) No. 44/2001 1 to recognise a new rule of jurisdiction for infringements of personality rights committed by means of content placed on an internet website in its recent joined cases decision in eDate Advertising GmbH v. X, and Oliver Martinez and Robert Martinez v. MGN Limited.2 In addition, the ECJ has provided guidance on the obligation contained in art.3 of Directive 2001/313 in terms of whether it determines the law applicable to infringements of personality rights committed on the internet.  

FACTUAL BACKGROUND X was a German national who was domiciled in Germany. In 1993, X and his brother were convicted for murder by a German court. Whilst in prison, X had accessed a report published online by the operator of an internet portal established in Austria, eDate Advertising GmbH. The report, which had been available on eDate Advertising’s website since the 23 August 1999, made use of his full name when reporting about him in connection with the crime he had committed. In addition, it stated that both he and his brother had lodged an appeal against their convictions with the German Constitutional Court. In a formal letter sent on the 5 June 2007, X had sought an undertaking from eDate Advertising that it refrain from reporting any further information about him. On the 18 June 2007, the report was removed from the website. eDate Advertising neither responded to the letter nor provided an undertaking that it would no longer disseminate information about him. X subsequently brought an action in libel before the German courts where he sought injunctive relief to prevent eDate Advertising from publishing any information about him. eDate Advertising submitted that the action should be dismissed for a lack of jurisdiction over the dispute. At first instance the injunction was granted, and this finding was upheld on appeal. On further appeal to the Bundesgerichtshof (German Federal Court of Justice), the proceedings were stayed and two questions were referred to the ECJ for a preliminary ruling under Article 267 of the Treaty on the Functioning of the European Union. First, it was asked whether the German courts had jurisdiction under the Brussels I Regulation to determine the alleged infringement to personality rights committed on the internet by an operator established in another Member State. In the event that the German courts did have jurisdiction, it was asked, secondly, whether Article 3 of the ecommerce Directive determined the law applicable to non-contractual liability arising from acts contrary to personality rights occurring by means of content placed on a website. In the second of the joined cases, Oliver Martinez, a French actor, and his father, Robert, brought an action for damages in the Tribunal de Grande Instance de Paris (Paris Regional Court) against MGN Ltd, a newspaper and magazine publishing company governed by English law. On the 3 February 2008, MGN published an article on the Sunday Mirror’s website entitled: ‘Kylie Minogue                                                              1

Council Regulation of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1) (Brussels I Regulation). 2 Joined Cases C-509/09 and C-161-10, eDate Advertising GmbH v. X, and Oliver Martinez and Robert Martinez v. MGN Limited, Judgment of 25 October 2011. 3 Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (OJ 2000 L 178, p.1) (e-commerce Directive). BPP LAW SCHOOL OPINION PIECE - INFRINGEMENTS OF PERSONALITY RIGHTS COMMITTED ON THE INTERNET – JUNE 2012

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is back with Oliver Martinez’. The article was accompanied by a number of photographs and provided details of their meeting. In addition, it attributed a number of remarks to Robert Martinez. Both applicants contended that the information published online interfered with their right to privacy, as well as Oliver Martinez’s image rights. MGN sought the proceeding to be dismissed on the grounds that there was an insufficient link between the alleged torts committed in England and the damage claimed to be suffered in France. Similarly, the Paris Regional Court stayed the proceedings and referred the question to the ECJ whether it had jurisdiction under the Brussels I Regulation to determine the dispute.

JURISDICTION UNDER ARTICLE 5(3) OF THE BRUSSELS I REGULATION The Brussels I Regulation provides a jurisdictional framework among Member States for the determination of forums in civil and commercial matters. Article 2(1) of the Regulation lays down the general rule that persons domiciled in a Member State shall be sued in the courts of that State. However, under Article 3(1), the courts of another Member State may entertain claims where the rules of special jurisdiction contained in Chapter II of the Regulation are applicable. Article 5(3) of the Brussels I Regulation derogates from the general rule and allocates special jurisdiction in matters relating to tort. It provides that a person domiciled in a Member State may be sued in tort in the courts of another Member State for ‘the place where the harmful events occurred or may occur’. This rule of special jurisdiction is based on the existence of a particularly close connecting factor between the dispute and the courts of the place where the harmful events occurred.4 The ECJ found that the first of the two questions referred in eDate Advertising and the single question in Martinez asked, in essence, how Article 5(3) was to be interpreted in cases involving alleged infringement of personality rights by means of content placed on an internet website.5 More specifically, the Bundesgerichtshof had asked whether the expression ‘the place where the harmful event ... may occur’ in Article 5(3), meant that actions could be brought against the operator of a website in either the courts of any Member State in which the website may be accessed; or in the courts of a Member State where there was a special domestic connecting factor beyond accessibility between the website and the Member State. 6 The Tribunal de Grande Instance de Paris similarly asked whether Article 5(3) of the Regulation was to be interpreted as meaning that a court has jurisdiction to hear an action brought for the alleged infringement of personality rights committed online by a company domiciled in another Member State where the internet site could be accessed from the first Member State; or where there was, between the harmful act and the territory of the first Member State, a sufficient,                                                              4

Case C-189/08, Zuid-Chemie BV v. Philippo's Mineralenfabriek NV/SA [2009] E.C.R. I-6917, at [24]. At [37]. 6 It was further asked what the criteria was to determine the special domestic connection if such a factor was held to be necessary. 5

BPP LAW SCHOOL OPINION PIECE - INFRINGEMENTS OF PERSONALITY RIGHTS COMMITTED ON THE INTERNET – JUNE 2012

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substantial or significant link. Although finding that the answer to this question did not clearly follow from the terms of the Regulation, the Tribunal de Grande Instance de Paris had taken the view that the harmful event can only be deemed to have occurred in the territory of a Member State where there was a sufficient, substantial or significant link connecting it with that territory. In Bier v. Mines de Potasse d’Alsace,7 the ECJ considered where a person may be sued under Article 5(3) of the Brussels Convention 8 when the constituent elements of the tort were committed in different Contracting States. It held that ‘the place where the harmful event occurred’ in Article 5(3) covered both the place where the damage occurred and the place of the events giving rise to it.9 As such, the claimant had the option of bringing an action in either the courts of the Contracting State for the place where the damage occurred, or in the courts of the Contracting State for the place of the events giving rise to it.10 The findings in Bier were revisited by the ECJ in Shevill v. Presse Alliance SA.11 The case of Shevill involved an action for damages for the harm caused by the distribution of a defamatory newspaper article in several Member States. The facts arose out of the publishers of France-Soir, a company incorporated under French law and registered in Paris, publishing an article about a drugs operation carried out by the French police at a bureaux de change in Paris. The article named the claimant, a United Kingdom national resident in England, who had temporarily worked at the bureaux de change. The claimant considered the article defamatory and brought libel proceedings before the English High Court in respect of the copies of the newspaper distributed and sold in England and Wales. It was estimated that approximately 237,000 copies of that particular issue of France-Soir were sold in France, and approximately 230 copies sold in England and Wales. The publisher sought to challenge the jurisdiction of the High Court on the grounds that no harmful event within the meaning of Article 5(3) of the Convention had occurred in England. The Court ruled that in cases of international libel, the injury caused by a defamatory publication occurs in the place where the publication is distributed and the individual is known.12 From this it followed that a claimant could either bring proceedings before the courts of the Contracting State where the publisher was established, or before the courts of each Contracting State in which the defamatory publication was distributed and the claimant has suffered injury to his reputation.13 It was held further that the courts where the publisher was established had jurisdiction to award damages for all of the harm caused by the publication, whereas the courts in which the defamatory publication was distributed

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Case C-21/76, Bier v. Mines de Potasse d’Alsace [1976] ECR 1735. Article 5(3) of the Brussels Convention has now been replaced by Article 5(3) of the Brussels I Regulation. Interpretations provided by the ECJ in respect of provisions that are equivalent in both instruments are applicable to the Regulation: Zuid-Chemie, at [18]. 9 Supra, n. 7, at [24]. 10 Ibid., at [25]. 11 Case C-68/93, Shevill v. Presse Alliance SA [1995] ECR I-415. 12 Ibid., at [29]. 13 Ibid., at [24]-[25], [30] and [33]. 8

BPP LAW SCHOOL OPINION PIECE - INFRINGEMENTS OF PERSONALITY RIGHTS COMMITTED ON THE INTERNET – JUNE 2012

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had jurisdiction to award damages only for the harm caused to reputation in that particular Contracting State.14 The ECJ in eDate Advertising extended the applicability of the findings made in Shevill and held that they not only covered cases involving defamation, but also ‘a wide range of infringements to personality rights recognised in various legal systems’.15 The subject-matter of the claim was not the only difference between the two decisions. The harm in Shevill was caused by the printed publication and distribution of an article by the media. In contrast, the medium used to publish and distribute the information which caused the harm to the claimants in the cases joined in eDate Advertising was the internet. The ECJ ruled that the findings made in Shevill could also be ‘applied to other media and means of communication’.16 However, it noted that ‘the placing online of content on a website is to be distinguished from the regional distribution of media such as printed matter’.17 According to the Court, once information is placed online its distribution is ‘in principal universal’,18 as it may be instantly consulted throughout the world by an unlimited number of internet users.19 In addition, it was said that the distribution of content online was outside of the control and intentions of the person who placed it on the internet.20 Further, it was noted that it is not always possible to quantify the distribution of content which is placed online, and, therefore, difficult to assess the damage caused within a particular Member State.21 Claims for infringements of personality rights by means of content placed on the internet thus presented difficulties to the rule of jurisdiction previously recognised by the ECJ in Shevill. Accordingly, the ECJ decided that it was necessary to recognise an additional connecting factor between the claim and the forum upon which the jurisdiction of a court under Article 5(3) of the Brussels I Regulation may be based. It held that in cases involving alleged infringements of personality rights committed by means of content placed on an internet website, an individual may bring proceedings before the court of a Member State where he has his ‘centre of interests’.22 It was further held that such actions were in respect of all of the alleged damage caused to the individual. 23 In providing guidance on the meaning of this additional connecting factor, the Court stated that: The place where a person has the centre of his interests corresponds in general to his habitual residence. However, a person may also have the centre of his interests in a Member State in which he does not habitually reside, in so far as other factors, such as the pursuit of a professional activity, may establish the existence of a particularly close link with that State.24

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Ibid. The ECJ also held that: ‘the criteria for assessing whether the event in question is harmful [for the purposes of Article 5(3)] … are not governed by the Convention but by the substantive law determined by the national conflict of laws rules of the court seised’: at [41]. 15 Supra, n. 2, at [44]. 16 Ibid. 17 Ibid., at [45]. 18 Ibid., at [46]. 19 Ibid., at [45]. 20 Ibid. 21 Ibid., at [46]. 22 Ibid., at [48] and [52]. 23 Ibid. 24 Ibid., at [49]. BPP LAW SCHOOL OPINION PIECE - INFRINGEMENTS OF PERSONALITY RIGHTS COMMITTED ON THE INTERNET – JUNE 2012

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Individuals may continue to bring proceedings before the courts of each Member State in which the content placed online has been accessed and causes damage. However, in accordance with Shevill, such courts will continue to only have jurisdiction in respect of the damage caused in the territory of the Member State of the court seised.25

APPLICABLE LAW UNDER THE E-COMMERCE DIRECTIVE The Bundesgerichtshof in eDate Advertising was uncertain as to the applicable law under the ecommerce Directive in cases involving the infringement of personality rights committed on the internet. It thus referred the additional question to the ECJ asking whether Article 3 of the Directive determines the law applicable to non-contractual liability arising from acts contrary to personality rights occurring by means of a website. Articles 3(1) and 3(2) provide that: 1. Each Member State shall ensure that the information society services provided by a service provider established on its territory comply with the national provisions applicable in the Member State in question which fall within the coordinated field. 2. Member States may not, for reasons falling within the coordinated field, restrict the freedom to provide information society services from another Member State. More specifically, it was asked whether these provisions should be interpreted as laying down an applicable rule of law which requires the application of the law in the Member State where the publisher is established; or whether it should be interpreted as a corrective to the law declared to be applicable to the dispute pursuant to the national conflict of laws rules, requiring that it be altered and adjusted to the requirements of the country of origin. The ECJ held that Article 3 does not have the effect of harmonising private international law at the national law level by laying down a conflict of law rule. When interpreting Article 3, the Court paid particular regard to Article 1(4) of the e-commerce Directive which provides that: ‘[t]his Directive does not establish additional rules on private international law’.26 Article 3(1) was found to impose on Member States an obligation to ensure that the information society services provided by a service provider established on their territory complies with the national provisions applicable in the Member States in question which fall within the coordinated field. It was said by the Court that such an obligation was not in the nature of a conflict of laws rule that would resolve conflicts between several laws which may be applicable.27 In addition, it was found that Article 3(2) does not require transposition in the form of a specific conflict of laws rule.28 Member States are free to designate, pursuant to their private international law, the substantive rules which are applicable, in so far as this does not result in a restriction on the freedom to provide electronic commerce services.29 Within the coordinated field, the Court held that Article 3 precludes the provider of an electronic commerce service being made subject to stricter requirements than those provided for

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Ibid., at [51]-[52]. Ibid., at [60]. Article 1(4) also provides: ‘nor does it deal with the jurisdiction of the Courts’. See, similarly, Recital 23 in the preamble to the Directive. 27 Ibid., at [61]. 28 Ibid., at [63]. 29 Ibid., at [62]. 26

BPP LAW SCHOOL OPINION PIECE - INFRINGEMENTS OF PERSONALITY RIGHTS COMMITTED ON THE INTERNET – JUNE 2012

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by the substantive law applicable in the Member State in which that service provider is established.30

COMMENT The ever increasing use of the internet by the media as a means of publishing information has had a significant impact on several areas of the law. At issue before the ECJ in eDate Advertising was whether the rule of special jurisdiction contained in Article 5(3) of the Brussels I Regulation as interpreted by Shevill needed to be reconsidered in the light of the challenges presented by the internet. Particular regard was given by the Court to the distribution of content placed online with that which is printed. With respect to the former, it was recognised that the content is distributed universally beyond the control and intention of those placing in online, and it is difficult to assess the actual damage caused. It was thus found by the Court that the internet gives effect to difficulties ‘to the criterion relating to the occurrence of damages which is derived from Shevill’.31 On this basis, a new connecting factor was recognised for cases involving alleged infringements of personality rights by means of content placed on the internet, which allows claims to be brought in respect of all the damage caused before the courts of a Member State where an individual has his centre of interests. Not only will the decision in eDate Advertising be welcomed by those who have their personality rights infringed on the internet, it will also be well received by service providers who find themselves in litigation before the courts of Member States in which they are not established. It was found by the ECJ that Article 3 of the e-commerce Directive does not impose a conflict of laws rule requiring the Member State in which the service is provided to apply the national law of the State in which the service provider is established. Indeed, this interpretation of the Directive is in line with Article 1(2)(g) of the Rome II Regulation,32 which states that the Regulation does not apply to ‘non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation’.33 Although there appears to be no harmonised choice of law rules for infringement to personality rights, Article 3, as interpreted by the ECJ, provides an important limitation34 which prevents the provider of an electronic commerce service being made subject to stricter requirements than those provided for by the substantive law applicable in the Member State in which that service provider is established.

AUTHOR Paul Mora is a Lecturer in Law at BPP Law School, University College. His areas of interest and expertise are in the fields of Public Law, Media Law and International Law.                                                              30

Ibid., at [67]-[68]. This was, however, subject to the derogations authorised in accordance with the conditions set out in Article 3(4). 31 Ibid., at [47]. 32 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. 33 On 21 November 2011, the Committee on Legal Affairs of the European Parliament issued a new Draft Report with recommendations to the Commission on the amendment of the Rome II Regulation. The recommendation proposes to add a new Article 5a to the Rome II Regulation on choice of law for privacy and personality rights. The European Parliament had regard to the ECJ’s decision in eDate Advertising when making this recommendation. 34 Subject to the derogations in Article 3(4). BPP LAW SCHOOL OPINION PIECE - INFRINGEMENTS OF PERSONALITY RIGHTS COMMITTED ON THE INTERNET – JUNE 2012

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