Online defamation Lawyer explains jurisdiction
UK online defamation Lawyers should find the following article useful as starting point to dealing with jurisdiction in online defamation cases. Jurisdiction is also a common issue in intellectual property litigation cases.
Online defamation Lawyer guide to jurisdiction – C-68/93 Fiona Shevill and others v. Presse Alliance SA
(Brussels Convention – Article 5(3) – Places where the harmful event occurred – Libel by a newspaper article).
The European Court of Justice considered the meaning of ‘where the harmful event occured’ held as follows:
On a proper construction of the expression ‘place where the harmful event occurred’.
1. As set out in Article 5(3) of the Convention.
2. The Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters.
3. As amended by the Convention of 9 October 1978 on the accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland.
4. By the Convention of 25 October 1982 on the membership of the Hellenic Republic.
The victim of a libel by a newspaper article distributed in the several Contracting States may bring an action for damages against the publisher.
They may do so either where the publisher resides. Such courts must have jurisdiction to award damages for all the harm caused by the defamation.
Alternatively, distribution of the publication in the Contracting State where the victim claims to have suffered injury to his reputation would establish jurisdiction. Such courts must have authority to rule solely in respect of the harm caused in the State of the court seised.
The Convention does not govern the assessment of whether the event in question is harmful and the evidence required of the existence and extent of damage in tort, delict or quasi-delict.
They are decided under the law designated by the national conflict of laws rules of the court seised based on the Convention, provided that the effectiveness of the Convention is not thereby impaired.
The fact that under the national law applicable to the main proceedings damage is presumed in libel actions so that the plaintiff does not have to adduce evidence of the existence and extent of that damage does not, therefore, preclude the application of Article 5(3) of the Convention.
The above judgment summary relates to individuals complaining of a tort committed in jurisdiction A which affects them in jurisdiction B, within the European Union. It is therefore relevant to Internet defamation jurisdiction.
According to the judgment of the court on the 07 March, 1995 individual(s) can sue where they have suffered injury to reputation. Local law sets the criteria for assessing the damage.
Therefore the fact that under national law damage can be presumed in the case of individuals does not affect the applicability of Article 5(3) of the Convention. In other words, you must show the distribution of the publication in the jurisdiction.
Since Shevill the words ‘or may occur’ have been added to Article 5(3). There has been some uncertainty as to how to interpret these words. On 09 December 2009 in Case C-509/09 there was a reference for a preliminary ruling from the Bundesgerichtshof, Germany as follows:
Case C-509/09: Reference for a preliminary ruling from the Bundesgerichtshof, Germany lodged on 9 December 2009 – eDate Advertising GmbH v X Official Journal C 134, 22/05/2010 p. 14
Referring to court Bundesgerichtshof, Germany
Parties to the main proceedings Applicant: eDate Advertising GmbH Defendant: X
1. Is the phrase the place where the harmful event. May occur in Article 5(3) of Council Regulation (EC) No 44/020 1 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Regulation 44/2001) to be interpreted as meaning:
a. in the event of (possible) infringements of the right to protection of personality using the content on an Internet website, that the person concerned may also bring an action for an injunction against the operator of the website. There must be a possibility of access in the Member State in which the operator is established or
b. does the jurisdiction of the courts of a Member State in which the operator of the website is not established require that there be a special connection between the contested content or the website and the State of the court seised (internal connecting factor) going beyond technically possible accessibility?
2. If such a specific inner connecting element is necessary: What are the criteria which determine that connection?
a. Does it depend on:
– whether the operator intends that the contested website is specifically (also) targeted at the Internet users in the State of the court seised; or
– is it sufficient for the information which may be accessed on the website to have an external connection to the State of the court seised?
Namely that in the circumstances of the individual case, based on the content of the website to which the applicant objects, a collision of conflicting interests:
– the applicant’s interest in respect for his right to protection of personality and the operator’s interest in the design of his website and news reporting – may have occurred or may occur in the State of the court seised?
Does the determination of the unique domestic connecting factor depend upon the number of times the website to which the applicant objects have been accessed from the State of the court seised?
3. If no particular domestic connecting factor is required to make an affirmative finding on jurisdiction; or
– if it is sufficient for the presumption of such a specific internal connecting element that the information to which the applicant objects has an external connection to the State of the court seised.
In the sense that an applicant objects, a collision of conflicting interests may have occurred or may occur in the State of the court seised; and
The existence of a specific internal connecting factor may be presumed without requiring a finding as to a minimum number of times the website to which the applicant object has been accessed from the State of the court seised.
Facts of Case
C-509/09 – eDate Advertising
In 1993, X, who lived in Germany, was sentenced, together with his brother, by a German court to life imprisonment for the murder of a well-known actor. He was released on parole in January 2008. The company eDate Advertising, which is established in Austria, operates an internet portal under the address ‘www.rainbow.at’, on which it published information about the appeals which X and his brother had lodged against their convictions.
Although eDate Advertising removed the disputed information from its website, X requested the German courts to order the Austrian company to stop using his full name when reporting about him in connection with the crime committed. eDate Advertising, for its part, challenges the international jurisdiction of the German courts to dispose of the case as it argues that proceedings may be brought against it only before the Austrian courts.
Judgment on the 25 October 2011:
In actions for liability for an electronic tort, in respect of all of the damage, the victim may always bring an action before the courts of each Member State in the territory of which the online content is or has been accessible.
In that case, in the same way, as to the damage caused by printed matter, those courts have jurisdiction to deal with cases only concerning damage which occurred within the territory of the State in which they are situated.
Similarly, the person whose rights have been infringed may also bring an action, in respect of all of the damage caused, before the courts of the Member State in which the publisher of the online content is established.
In other words, if you can demonstrate that the material complained of is accessible in the jurisdiction you can bring an action in that jurisdiction without the website to which the applicant objects having been accessed a minimum number of times.
The position in the above paragraphs applies to an individual(s) and companies.
However, to prove damage, you must show the extent of the damage in that jurisdiction in the usual way.
On the 17 October 2011, Peter Adediran of PAIL® Solicitors made an application on behalf of a UK company for a pre-action disclosure application.
The application considered the phrase “the place where the harmful event may occur” in Article 5(3) of Council Regulation (EC) No 44/020 1 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Regulation 44/2001).
The case involved:
(A) The Claimant, our client: a UK company that sells products and services to customers in the UK and France.
(B) The First Defendant: an individual that my client alleges has defamed it on the Second Defendants website, and
(C) The Second Defendant a global website through which UK expatriates living abroad can sell their products and services. Through franchises, the site licenses its name to companies in different countries in Europe. Different parts of the website are directed at those different countries. English is the language for the terms and conditions of the Website, and the jurisdiction clause states that jurisdiction is in the UK.
The exciting issues from an Internet defamation jurisdiction perspective are:
1. Based in France our client’s outlet was outside UK jurisdiction but our client company is in the UK.
2. The person making the alleged defamatory statement is domiciled in France.
3. The company controlling the Website, although incorporated in the UK, claimed that a Franchisee managed the part of its website pointing at France and therefore is within French Jurisdiction.
4. What do you need to show damage in the UK to make out a prima facie case to bring an action in the UK?
5. The website intermediary is a joint tortfeasor.
Our application before the Master in the Queen’s Bench Division was for an order for pre-action disclosure of the defamatory material including documents on both the server of the website and the computers of the person making the defamatory statement. Solicitors opposed the application.
The Master ordered that our client is giving the pre-action disclosure plus its costs.
The hearing involved the very same issue in Case C-509/09 – eDate Advertising. The interpretation of the additional wording to Article 5(3) of Council Regulation (EC) No. 44/2001 of 22 December 2000 (on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters).
Please also see the decision of the European Court of Justice (ECJ) in Cornelia Buschmann v. Cormelius de Visser C-292/10 on the issue of the interpretation of Article 5(3) concerning electronic torts.
By showing that the Website was accessible in the UK, we were able to demonstrate that the adverse event may have occurred in the UK, and therefore satisfy the Internet defamation jurisdiction point. Our opponents argued that there was no damage in the UK and so there was no jurisdiction.
By Peter Adediran
This article deals with jurisdiction in online defamation cases. If you are an online defamation lawyer, then you will have had to deal with jurisdiction several times. The phenomenon of forum shopping still continues in the UK in defamation and other cases where UK law is seen as more agreeable to the claimant. The effect of jurisdiction can kill a case before it’s even started, so it’s essential to get jurisdiction right. If you are seeking advice on from an online defamation lawyer on how to get an effective injunction, protect your reputation online or to get damages for harm done to your business, you must take the opportunity to go and seek professional legal help from a solicitor or barrister. The information and any commentary on the law contained on this web site are provided free of charge for information purposes only. Every reasonable effort is made to make the information and analysis accurate and up to date, but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by PAIL®Solicitors. The information and commentary do not and are not intended to amount to legal advice to any person on a specific case or matter. Obtain an accurate, personal opinion from a lawyer about your case or matter. Do not to rely on the information or comments on this site. We bear no responsibility for the content or accuracy of linked sites.
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