- Comparative study on the situation in the 27 Member States as regards the law applicable to non-contractual obligations arising out of violations of privacy and rights relating to personality (JLS/2007/C4/028, Final Report) (hereinafter: Comparative study)
- See eg the online symposium of the ConflictofLaws.net on Rome II and defamation: http://conflictoflaws.net/2010/rome-ii-and-defamation-online-symposium
- See eg A Eardley, “Libel Tourism in England: Now the Welcome Is Even Warmer” (2006) 17 Entertainment Law Review 35; A Bell, “Libel Tourism: International Forum Shopping for Defamation Claims” (Global Law Forum, Jerusalem Center for Public Affairs 2008): www.glo-ballawforum.org/UserFiles/puzzle22New%281%29.pdf; R Garnett and M Richardson, “Libel Tourism or Just Redress? Reconciling the (English) Right to Reputation with the (American) Right to Free Speech in Cross-border Libel Cases” (2009) 5 Journal of Private International Law 471; RL McFarland, “Please Do Not Publish this Article in England: A Jurisdictional Response to Libel Tourism” (2010) 79(3) Mississippi Law Journal 617. Available at SSRN: http://ssrn.com/abstract=1514988; R Balin, L Handman and E Reid, “Libel Tourism and the Duke's Manservant—An American Perspective” (2009) 3 European Human Rights Law Review 303; L Levi, “The Problem of Trans-national Libel” (25 March 2011). University of Miami Legal Studies Research Paper No 2011–11, 10. Forthcoming in the American Journal of Comparative Law. Available at SSRN: http://ssrn.com/abstract=1795237. On the differences between English and US libel law, see eg UN Raifeartaigh, “Fault Issues and Libel Law—A Comparison between Irish, English and United States Law” (1991) 40 International and Comparative Law Quarterly 763.
- See eg New York's Libel Terrorism Protection Act, 2008 NY Laws 66.
- 5 Of course, without disregarding that the Rome II Regulation has universal application and the Brussels I Regulation is, in principle, applicable to proceedings instituted by a non-EU plaintiff against an EU domiciliary.
- 6 Art 2.
- 7 Para 17.
- See eg Case C-26/91 Jakob Handte & Co GmbH v Traitements Mécano-chimiques des Surfaces SA [1992] ECR I-3967, para 15.
- In Case C-18/02 Danmarks Rederiforening v SEKO [2004] ECR I-1417, the plaintiff instituted a law-suit against a trade union to establish the illegality of an industrial action. The CJEU held that this case came under the notion of “tort, delict or quasi-delict” of Art 5(3) of the Brussels I Regulation (para 28) because it was “seeking to prevent the occurrence of future damage”, ie the action at stake had some connection to damages because there was a reasonable potential that damages may emerge. In Case C-167/00 Verein für Konsumenteninformation v Karl Heinz Henkel [2002] ECR I-8111, a consumer protection organisation brought a preventive action with the purpose of deterring a trader from using terms considered to be unfair in contracts with private individuals. Likewise, the CJEU held that such an action comes under the concept of “tort, delict or quasi-delict” (para 50). The CJEU explained that the notion of “harmful event” “covers not only situations where an individual has personally sustained damage but also, in particular, the undermining of legal stability by the use of unfair terms which it is the task of associations such as the VKI to prevent” (para 42)
- Joined Cases C-509/09 and C-161/10 eDate Advertising GmbH v X and Olivier Martinez, Robert Martinez v MGN Limited, judgment of 25 October 2011, paras 51–52 and answer to question 1. See also Advocate General Villalón's Opinion in Joined Cases C-509/09 and C-161/10 eDate Advertising GmbH v X and Olivier Martinez, Robert Martinez v MGN Limited, opinion of 29 March 2011, para 29.
- Case 21/76 Bier BV v Mines de Potasse d'Alsace [1976] ECR 1735.
- 12 The defendant was also sued by a foundation for the protection of the water of the river as secondary plaintiff.
- 13 Paras 5–23.
- 14 Paras 22–23.
- Case C-220/88 Dumez France SA and Tracoba SARL v Hessische Landesbank and others [1990] ECR I-49.
- 16 Para 20.
- C-364/93 Antonio Marinari v Lloyds Bank plc and Zubaidi Trading Company [1995] ECR I-2719.
- 18 Paras 11–12.
- 19 Paras 13–15.
- 20 See the above example of a Hungarian journalist reading a French newspaper in France and repeating its content.
- Case C-68/93 Fiona Shevill, Ixora Trading Inc, Chequepoint SARL and Chequepoint International Ltd v Presse Alliance SA, [1995] ECR I-415.
- 22 Paras 2–3 and 9.
- 23 Para 9.
- 24 Para 19.
- 25 Although the above case concerned the printed media, the term “publisher”, for the sake of simplicity, will be used widely, as a surrogate for all content providers (printed press, broadcasters, websites, etc).
- 26 Para 24.
- 27 Paras 29–30.
- 28 Para 33.
- 29 Para 35.
- 30 Para 82.
- 31 Para 51. See also para 52 and the CJEU's answer to the first question.
- Cf TC Hartley, “Case Comment: Article 5(3) of the Brussels Convention” (1992) 17 European Law Review 274, 275: “It is true that Ms Shevill was domiciled in England; however, the French company for which she worked was also allowed to bring proceedings, even though it was not domiciled in England”; G Hogan, “The Brussels Convention, Forum Non Conveniens and the Connecting Factors Problem” (1995) 20 European Law Review 471, 493, predicting that after She-vill, on the basis of the mosaic theory, “[t]he Court of Justice would still be faced with future cases where a manifestly inappropriate forum would be enabled–or even required–to assume jurisdiction under the Convention by reason of connecting factors which, viewed objectively, would seem in themselves inadequate for this purpose”.
- See supra n 10.
- See E Barendt, “What Is the Point of Libel Law?” (1999) 52 Current Legal Problems 111, 120–25.
- 35 See para 51.
- 36 Para 46.
- See Dow Jones & Co Inc v Gutnick 210 CLR 575, 626 (2002) (High Court of Australia), paras 26 and 44: “Harm to reputation is done when a defamatory publication is comprehended by the reader, the listener, or the observer. Until then, no harm is done by it. This being so it would be wrong to treat publication as if it were a unilateral act on the part of the publisher alone. It is not. It is a bilateral act–in which the publisher makes it available and a third party has it available for his or her comprehension”; “In defamation,…ordinarily, defamation is to be located at the place where the damage to reputation occurs. Ordinarily that will be where the material which is alleged to be defamatory is available in comprehensible form…. In the case of material on the World Wide Web, it is not available in comprehensible form until downloaded on to the computer of a person who has used a web browser to pull the material from the web server. It is where that person downloads the material that the damage to reputation may be done.” Jameel (Yousef) v Dow Jones & Co Inc [2005] EWCA Civ 75; [2005] QB 946; [2005] 2 WLR 1614; [2005] EMLR 353: here, the Court established lack of jurisdiction due to abuse of process because only five people accessed the content, three of which belonged to the claimant's “camp”. Al Amoudi v Brisard [2007] 1 WLR 113: the Court held that the fact that the content was uploaded to the internet does not trigger the presumption of having been published in the country concerned–the plaintiff has to prove that it was accessed and downloaded.
- See supra n 37.
- 39 Para 48.
- 40 Para 49.
- 41 Para 51.
- 42 The judgment's language is clear in that a person may have only one “centre of interests” and this may be located only in one country.
- 43 Para 45.
- 44 Para 46.
- See supra n 37.
- 46 Para 47.
- 47 Para 48.
- 48 Para 40.
- 49 See Arts 8–21.
- 50 Para 59.
- 51 Para 60.
- 52 Para 60.
- 53 Para 63.
- 54 Para 50.
- Bulgaria, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Ireland, Italy, Hungary, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Spain and the United Kingdom. Comparative study, supra n 1, 42–44.
- 56 Art 5(4) of the Brussels I Regulation provides that “a person domiciled in a Member State may, in another Member State, be sued:…as regards a civil claim for damages or restitution which is based on an act giving rise to criminal proceedings, in the court seised of those proceedings, to the extent that that court has jurisdiction under its own law to entertain civil proceedings”.
- Case C-7/98 [2000] ECR I-1935.
- 58 Another crucial point of interpretation is that Art 5(4) applies only if the criminal and the civil claims are settled in the same procedure, ie the criminal court deals with the civil claims. On the other hand, Art 5(4) cannot be used to bring a case to the civil courts of the Member State the criminal courts of which are entertaining the criminal procedure: if the civil claims do not adhere to the criminal procedure, the requirements of Article 5(4) are not met.
- See Case No. 0718523043 Public Prosecutor v Weiler (Judgment of 3 March 2011) (Tribunal de Grand Instance de Paris). (Here, the French criminal court declined jurisdiction.)
- See L Edwards, “Case Comment: The Scotsman, the Greek, the Mauritian Company and the Internet: Where on Earth do Things Happen in Cyberspace?” (2004) 8 Edinburgh Law Review 99, 100: “Despite the ubiquity of the problem, no jurisdiction has yet, to this writer's knowledge, expressly developed rules of jurisdiction tailored ab initio for the internet. Instead valiant attempts have been made to adapt existing case-law, constitutional principles, legislation and international treaty law to meet the challenge of the internet.”
- 61 Para 45.
- 62 Para 40.
- 63 Para 43.
- 64 Para 44.
- 65 Para 45.
- 66 Para 47.
- 67 Para 48.
- 68 Para 46.
- See O Bigos, “Jurisdiction over Cross-border Wrongs on the Internet” (2005) 54 International & Comparative Law Quarterly 585, 602, 603: endorsing the view “that traditional rules can be applied to cases which arise in the online environment and that the internet is merely a natural extension of existing forms of communication technology, rather than a novel form requiring sui generis laws”; “Courts have grappled with every new form of technology by adapting the existing rules. The internet is no different. It is simply on a larger global scale.” Y Farah, “Jurisdictional Aspects of Electronic Torts, in the Footsteps of Shevill v Presse Alliance SA” (2005) 11 Computer and Telecommunications Law Review 196, 200: “The rules applied in different jurisdictions when deciding whether or not a court has jurisdiction in an electronic tort context converge on the main premise that the traditional rules must be equally extended to electronic torts.” J-J Kuipers, “Towards a European Approach in the Cross-border Infringement of Personality Rights” (2011) 12(8) German Law Journal 1681, 1684: arguing that the difference between the online and non-online world should not be overestimated; and “[t]he mere fact that the defamatory information was published online, instead of in print, should not lead to a different outcome in private international law”.
- See eg TC Hartley, “Case Comment: Article 5(3) of the Brussels Convention” (1992) 17 European Law Review 274, 275; A Warshaw, “Uncertainty from Abroad: Rome II and the Choice of Law for Defamation Claims” (2006) 32(1) Brooklyn Journal of International Law 269, 282.
- Warshaw, ibid.
- Ibid.
- See PM North and JJ Fawcett, Chesire and North's Private International Law (Butterworths, 11th edn, 1987), 296; Recitals 11–12 of the Brussels I Regulation; Case C-26/91 Jakob Handte & Co GmbH v Traitements Mécano-chimiques des Surfaces SA [1992] ECR I-3967, paras 18–19.; CsI Nagy, Az Európai Unió nemzetközi magánjoga [in English: The Private International Law of the European Union] (HVG-Orac, 2006), 60.
- Cf Bigos, supra n 69, 585, 610, 614: “[A]s a general principle, the first point in time at which damage can be suffered from a wrong on the internet is when the material is accessed and downloaded from a website or an email is received. Importantly, damage is not suffered when the material is uploaded on a website or stored on a server (either as a website or as an email). No human can be said to be suffering damage at that stage”; “The focus is on damage to reputation. Reputation is harmed only when a defamatory publication is comprehended by the reader, listener, or observer. Thus publication is not a unilateral act on the part of the publisher alone, but rather a bilateral act in which the publisher makes it available and a third party comprehends it.” G Smith, “Here, There or Everywhere? Cross-border Liability on the Internet” (2007) 13 Computer and Telecommunications Law Review 41, 43: arguing that basing jurisdiction under Art 5(3) of the Brussels I Regulation on mere availability “would be contrary to the scheme of the Regulation, in which Art 5(3) is intended to be a limited exception from the basic rule that a defendant is to be sued in the courts of his domicile”. N Joubert, “Cyber-torts and Personal Jurisdiction: The Paris Court of Appeal Makes a Stand” (2009) 58 International & Comparative Law Quarterly 476, 477–78: submitting that mere accessibility should not constitute a basis of jurisdiction.
- See supra n 37.
- On the anomalies of the Yahoo case, see B Maier, “How Has the Law Attempted to Tackle the Borderless Nature of the Internet?” (2010) 18 International Journal of Law & Information Technology 14.
- See infra nn 95–96. See also Bigos, supra n 69, 618.
- Contra Bigos, ibid, 617–18, 619, arguing that although seemingly there would be an inconsistency in authorising a court to grant universal injunction, while limiting its jurisdiction to damages sustained within the national borders of the court's state, “[t]his inconsistency is more apparent than real”, and concluding that “[t]he Shevill limitation should not be applied to injunctions”.
- 79 Para 47
- Cf Jameel (Yousef) v Dow Jones & Co Inc, see supra n 37.
- Cf TC Hartley, “‘Libel Tourism’ and Conflict of Laws” (2010) 59 International and Comparative Law Quarterly 25, 31, suggesting that the application of Art 5(3) of the Brussels I Regulation should be confined, among others, to cases where “the defendant has taken significant steps to make the offending material available in the country of the forum and has targeted that country more than any other”.
- Cf Hartley, ibid, suggesting that the application of Art 5(3) of the Brussels I Regulation should be confined, among others, to cases where “the claimant is domiciled in the territory of the forum”.
- Cf Crookes v Holloway 2008 BCCA 165; (2008) 77 BCLR (4th) 201; Al Amoudi v Brisard [2007] 1 WLR 113: the fact that the content was uploaded to the internet does not trigger the presumption of having been published in the country concerned: the plaintiff has to prove that it was accessed and downloaded.
- 84 Rome II Regulation, Art 1(2)(g).
- See A Dickinson, The Rome II Regulation: The Law Applicable to Non-contractual Obligations (Oxford University Press, 2008), 234–38; G Wagner, “Article: Article 6 of the Commission Proposal: Violation of Privacy—Defamation by Mass Media” (2005) 13 European Review of Private Law 21; MMM Van Eechoud, “The Position of Broadcasters and Other Media under the Proposed EC ‘Rome II’ Regulation on the Law Applicable to Non-Contractual Obligations” (IRIS plus, No 2006–10, 2006), 2, 14–15. Available at SSRN: http://ssrn.com/abstract=973774.
- 86 Amended proposal for a European Parliament and Council regulation on the law applicable to non-contractual obligations (“Rome II”). COM(2006) 83 final (hereinafter: Amended Proposal).
- Amended Proposal, 6 (reaction to Amendment 57).
- Proposal for a European Parliament and Council regulation on the law applicable to noncontractual obligations (“Rome II”). COM(2003) 427 final (hereinafter: Initial Proposal).
- ChJ Kunke, “Rome II and Defamation: Will the Tail Wag the Dog?” (2005) 19 Emory International Law Review 1733, 1744; Warshaw, supra n 70, 280–81, 282.
- 90 Initial Proposal, 18.
- 91 See supra n 35.
- P Stone, EU Private International Law (Edward Elgar, 2006), 367–68: the rationale for Art 6(2) appears to be the impracticability of the distributive application to these issues of several laws under Article 3, and the inappropriateness of a reference to the law of the forum by analogy with Art 6(1).
- See eg Smith, supra n 74, 4–1–4–2.
- See Hartley, supra n 81: “In the realm of information, the world is one unit: individual countries cannot be isolated from the rest.”
- TGI Paris 20 November 2000, JGP 2000, Act, p 2214).
- Yahoo! Inc v La Ligue Contre le Racisme et VAntisemitisme, 145 FSupp2d 1168, 1180 (ND Gal 2001) (establishing personal jurisdiction); Yahoo!, Inc v La Ligue Contre le Racisme et VAntisemitisme, 169 FSupp2d 1181, 1194 (ND Gal 2001) (declaring that “the First Amendment precludes enforcement within the United States”); on appeal: Yahoo! Inc v La Ligue Contre le Racisme et VAntisemitisme. ['Union des Etudiants Juifs de France, 433 F3d 1199 (2006) (remanding for lack of ripeness and lack of personal jurisdiction); the Supreme Court denied certiorari in Order No 05–1302. In August 2010, the Securing the Protection of our Enduring and Established Constitutional Heritage Act [SPEECH Act), PL 111–223, codified at 28 USC §§ 4101–05, was adopted, which mandates US courts not to recognise foreign libel judgments if the foreign substantive libel law or procedure is inconsistent with the US Constitution (First Amendment) or s 230 of the Communications Act of 1934 (47 USC. § 230). See EC Barbour, “The SPEECH Act: The Federal Response to ‘Libel Tourism’” {Congressional Research Service 7–5700, 16 September 2010), www.fas.org/sgp/crs/misc/R41417.pdf; Balin, Handman and Reid, supra n 3; Levi, supra n 3; Kuipers, supra n 69, 1691–92. On the recognition practice of US courts, see McFarland, supra n 3.
- See Kuipers, supra n 69, 1681, 1683, 1686–87.
- See supra n 10.
- It is to be noted that the Court's interpretation did not come as a complete surprise. For a forerunner of the GJEU's construction of Art 3 of the E-Gommerce Directive, see G Spindler. :'Herkunftslandprinzip und Kollisionsrecht—Binnenmarktintegration ohne Harmonisierung? Die Folgen der RichtHnie im elektronischen Geschaftsverkehr fur das Kollisionsrecht” (2002) 66 Rabels Zeitschrift fur auslandisches und Internationales Privatrecht 633, 691, contending that the country of origin principle under the E-Gommerce Directive covers, in principle, all communication delicts.
- Directive 2000/31/EG 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 (”E-Gommerce Directive') [2000] OJ L178/1.
- 101 Art 1(1) of the E-Gommerce Directive.
- 102 See para 60.
- 103 Para 58.
- 104 Paras 66–67.
- See R Michaels, “EU Law as Private International Law? Reconceptualising the Country-of-origin Principle as Vested-rights Theory” (2006) 2 Journal of Private International Law 195, 202. On the debate whether Art 3 contains a genuine choice-of-law rule, see eg P Mankowski, “Das Herkunftslandprinzip als Internationales Privatrecht der e-commerce-Richtlinie” (2001) 100 Zeitschrift fur vergleichende Rechtswissenschaft 137; S Grundmann, “Das Internationale Privatrecht der E-Gommerce-Richtlinie–was 1st kategorial anders im Kollisionsrecht des Binnenmarkts und warum?” (2003) 67 Rob els Zeitschrift fur ausldndisches und internationals Privatrecht 246; G de Baere, “'Is this a Conflict Rule Which I See Before Me?' Looking for a Hidden Conflict Rule in the Principle of Origin as Implemented in Primary European Community Law and in the Directive on Electronic Commerce” (2004) 11 Maastricht Journal of European and Comparative Law 287, 305–17.
- Henry Ford, published in his autobiography My Life and Work (Doubleday 1922), ch IV 71–72.
- See Spindler, supra n 99, 665, contending that that the country of origin principle influences and is super-imposed over choice-of-law, and functions like a choice-of-law principle; M Hellner. :'The Country of Origin Principle in the E-commerce Directive: A Conflict with Conflict of Laws?” (RGSL Working Papers No 6, Riga 2003) 15–17, 26: www.rgsl.edu.lv/images/stories/publications/RWP6Hellner.pdf, also published in Les conflits de lois et le systeme juridique communau-taire (2004) 205.
- See Spindler, supra n 99, 649–54.
- Para 82.
- See Michaels, supra n 105, 205.
- Case C-212/97 Centros Ltd v Erhvervs- og Selskabsstyrelsen [1999] EGR 1–1459. See Case 79/85 DHM Segers v Bestuur van de Bedrijfsvereniging voor Bank- en Verzfikeringswezfin, Groothandel en Vrije Beroepen [1986] EGR 2375.
- 112 It was common ground that the mailbox company established in England was meant to operate exclusively in Denmark, without any activity in England. The complications arose when the company tried to register a branch in Denmark: its application was refused on the ground that the founders strove to circumvent the Danish national rules on minimum capital. Para 7.
- 113 Para 39.
- Case G-208/00 Uberseering BV v Nordic Construction Company Baumanagement GmbH (NGG) [2002] EGR 1–9919.
- In this law-suit, Uberseering sued because of defective performance and the defendant raised the argument that Uberseering is non-existent, as it does not meet the conditions its personal law raises for having legal personality; consequently, it has no legal personality (ie it is not a legal subject) and as such cannot be party to a legal procedure. For more detail on the GJEU case-law on free movement of companies in the EU and the limits of what can be achieved on the law governing companies in the absence of EU legislative harmonisation, see J Borg-Barthet, “A New Approach to the Governing Law of Companies in the EU: A Legislative Proposal” (2010) 6 Journal of Private International Law 589 and The Governing Law of Companies [Hart Publishing, 2012).
- 116 Answer to question 2.
- 117 Paras 99–101, 143 and answer to question 2.
- For Austria, see Case 60bl24/99z OGH (Austria), decision of 15 July 1999. For a case-note, see (1999) Osterreichisches Recht der Wirtschaft 719. See also Gh Nowotny, “OGH anerkennt Nied-erlassungsfreiheit fur EU-/EWR-Gesellschaften. Die. Gentros-Entscheidung des EuGH zwingt zur Abkehr von der Sitztheorie” [1999] Osterreichisches Recht der Wirtschaft 697. For Germany, see Case II ZR 5/03 BGH (Germany), decision of 14 March 2005. For a case-note, see (2005) Neue Juristische Wochenschrift 1648. See also W Goette, “Zu den Folgen der Anerkennung aus-landischer Gesellschaften mit tatsachlichem Sitz im Inland fur die Haftung ihrer Ge sells charter und Organe” (2006) 27 Zeitschrift fur Wirtschaftsrecht 541.
- Council Directive 89/552/EEG of 3 October 1989 on the coordination of certain provisions laid down by Law, Regulation or Administrative Action in Member States concerning the pursuit of television broadcasting activities [1989] OJ L298/23.
- Art 2a(l). See Kuipers, supra n 96, 1694.
- 121 Art 1.
- See Kuipers, supra n 96, 1693. 125 Hellner, supra n 107, 26.
- 124 Art 1(4).
- 125 See Art 2 of the Rome I Regulation, Art 3 of the Rome II Regulation, Art 4 of the Rome III Regulation.
- See Lewis v King [2005] EMLR 4; [2004] EWGA Civ 1329; R Garnett and M RicharcW “Libel Tourism or Just Redress? Reconciling the (English) Right to Reputation with the (American) Right to Free Speech in Gross-border Libel Gases” (2009) 5 Journal of Private International Law All, A1§-11.
- Berezovsky v Michaels [2000] 1 WLR 1004.
- Cf Hartley, supra n 81, 34–35, examining the question of applicable law from an interest-analysis perspective.
Journal of Private International Law
Volume 8, 2012 - Issue 2