Forum shopping at its best under Brussels I regulation in case of violation of personality rights on the internet
On 8 May 2012 the Bundesgerichtshof (German Highest Court) decided that German courts are internationally competent for an action for injunction concerning the violation of personality rights on the internet by a publisher that is domiciled in another EU Member State when the centre of the plaintiff’s interests is situated in Germany. This decision is based on an European Court of Justice judgment from 25 October 2011 jointly deciding over a German and a French submission.
The plaintiff Mr. X was sentenced by a German court to life imprisonment for the murder of a well-known German actor in 1993 together with his brother. Mr. X is German and lives in Germany. He has been free on parole since January 2008. eDate Advertising GmbH (‘eDate’) is domiciled in Austria and operates an internet portal. eDate has published information about Mr. X, identifying him by his full name and stating that both he and his brother had lodged appeals against their convictions with the German Constitutional Court. Mr. X requested eDate to desist from all dissemination of information about him and to confirm this in written form. The defendant removed the information, but did not give the demanded written notice. Mr. X brought an action before the German courts seeking an injunction against eDate ordering it to refrain from publishing any information about him. The action was succesful in both lower instances. eDate appealed at the Bundesgerichtshof, arguing that the German courts lacked jurisdiction.
In the French case, in 2008 the British newspaper Sunday Mirror published in its internet edition several photographs accompanied by a text, entitled ‘Kylie Minogue back with Olivier Martinez’. The article described a meeting of the couple in Paris, referring to their separation the year before and expressed that the ‘23-hour romantic trip’ confirmed the renewal of their relationship. The article also made some remarks to Robert Martinez, Olivier Martinez’s father. Olivier and Robert Martinez, both of French nationality, sued the owner of the Sunday Mirror, an English company, at the Tribunal de grande instance de Paris. They both claimed the information published to be a violation of their right to privacy and of the right of Olivier Martinez to his own image. The defendant objected to the international jurisdiction of the French court.
Both courts, the Bundesgerichtshof and the Tribunal de grande instance de Paris, submitted to the ECJ the question how Art. 5(3) of Brussels I Regulation has to be interpreted in the event of (possible) violations of the right to protection of personality by means of content on the internet.
Why is the jurisdiction so important?
Within EU jurisdictions, the protection of personality differs a lot, e.g. in France traditionally the protection of personality rights is very high, whereas in England the freedom of speech is very important. So it is possible that one action leads to damages in one jurisdiction, but another would not grant them. Basically, this topic deals with the way each Member State weighs those two constitutional rights.
Due to those different approaches, and especially the influence of the English Yellow Press, the Member States could not agree on a statutory provision in the Rome II Regulation which provides uniform conflict-of-laws rules within the EU for torts (inter alia). Therefore, each member state still uses its own national rules to determine the applicable law in such cases with the consequence that in different Member States different substantive law is applicable. So it may be very important for a plaintiff which conflict-of-laws rules apply. This in turn leads to the relevance of the jurisdiction because the national courts use their national conflict-of-laws to determine the applicable substantive law. And before a national court has to determine the applicable law, it needs to be internationally competent.
The international jurisdiction in the EU is determined by the Brussels I regulation. The general rule in Article 2 provides that persons should be sued in the courts of the Member State where they are domiciled. The violation of personality rights is also covered by Article 5(3) which provides a special jurisdiction that is applicable besides the general rule: A person domiciled in a Member State may, in another Member State, be sued in matters relating to tort, in the courts for the place where the harmful event occurred or may occur. This includes the place where the event which gave rise to the harm occurred and the place where the harm arose.
The ECJ decided specifically for an action for immaterial damages that the victim of a libel by a newspaper article distributed in several Member States may bring an action for damages against the publisher either before the courts of the Member State of the place where the publisher of the defamatory publication is established (place where the harm occurred), or before the courts of each Member State in which the publication was distributed and where the victim claims to have suffered injury to his reputation (place where the harm arose). The first-mentioned courts have jurisdiction to award damages for all the harm caused by the defamation, whereas the second-mentioned courts have jurisdiction to rule solely in respect of the harm caused in the State of the court seised.
This decision dealt with a printed newspaper. But if the press publishes on the internet, it is much more difficult to determine the place where the harm arose. This could be the place where the website may be accessed. Or one could demand that there needs to be a domestic connecting factor which may be determined in different ways, e.g. that the website is specifically targeted at the internet users of a state, or that the conflicting interests collide in the state. It is also thinkable to refer to the number of times the website has been accessed.
Decision of ECJ
For this reason, the Bundesgerichtshof and the Tribunal de grande instance Paris presented this matter to the ECJ. The ECJ ruled that the concept of the Shevill decision is applicable for other means of communication and for injunctive reliefs:
The victim may sue the publisher, in respect of all the damage caused, either before the courts of the Member State in which the publisher of that content is established or before the courts of the Member State in which the centre of his interests is based. The centre of interests usually corresponds with the domicile. But this place may also be located in another Member State, if other indicators establish a particularly close connection like carrying on a commercial or professional activity. That person may also, instead of an action for liability in respect of all the damage caused, bring his action before the courts of each Member State in the territory of which content placed online is or has been accessible. Those courts have jurisdiction only in respect of the damage caused in the territory of the Member State of the court seised.
Accordingly, the Bundesgerichtshof decided that German courts are internationally competent because the centre of the plaintiff’s interests is situated in Germany.
The decision could not be better for the plaintiff concerning the interpretation of Art. 5(3) Brussels I Regulation: Since the conflict of law rules are not harmonized in this area, the plaintiff is able to choose the jurisdiction with respect to the conflict of law rules which lead to the substantive law that highly protects personal rights. Since the only prerequisite is that the content is accessible on the internet, in general the courts of each Member State are internationally competent. Especially, for a well-known celebrity forum shopping is an attractive option. As an alternative, he/she can choose the country which grants high damages for the violaton of personality rights. Even if he/she can only get the damage which occurs in this territory, the amount may be satisfying to cure all harm. So forum shopping is possible which should be avoided because it is contrary to the guiding principle of having internationally harmonized decisions.
Dr. Ragnhild ChristiansenPublish date: 04 July 2012 • Topic(s):