Internet defamation jurisdiction
The following is a very useful Internet defamation jurisdiction case:
Internet defamation jurisdiction – C-68/93 Fiona Shevill and others v. Presse Alliance SA
(Reference for a preliminary ruling from the House of Lords) (Brussels Convention – Article 5(3) – Places where the harmful event occurred – Libel by a newspaper article).
The European Court of Justice in considering the meaning of ‘where the harmful event occured’ held as follows:
On a proper construction of the expression `place where the harmful event occurred in Article 5(3) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 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 and by the Convention of 25 October 1982 on the accession of the Hellenic Republic the victim of a libel by a newspaper article distributed in several Contracting States may bring an action for damages against the publisher either before the courts of the Contracting State of the place where the publisher of the defamatory publication is established, which have jurisdiction to award damages for all the harm caused by the defamation, or before the courts of each Contracting State in which the publication was distributed and where the victim claims to have suffered injury to his reputation, which have jurisdiction to rule solely in respect of the harm caused in the State of the court seised.
The criteria for assessing whether the event in question is harmful and the evidence required of the existence and extent of the harm alleged by the plaintiff in an action in tort, delict or quasi-delict are not governed by the Convention but are determined in accordance with the substantive law designated by the national conflict of laws rules of the court seised on the basis of 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 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. The criteria for assessing damage is left to local law and not convention.
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 Covention. In other words an individual does not have to prove damage to make out jurisdiction but must prove that the publication was distributed 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 interprete 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 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, in the event of (possible) infringements of the right to protection of personality by means of content on an Internet website, that the person concerned may also bring an action for an injunction against the operator of the website, irrespective of the Member State in which the operator is established, in the courts of any Member State in which the website may be accessed,
Or 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 (domestic connecting factor) going beyond technically possible accessibility?
2. If such a special domestic connecting factor is necessary: What are the criteria which determine that connection? Does it depend on whether the intention of the operator is 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 objective connection to the State of the court seised, in the sense that in the circumstances of the individual case, in particular on the basis of the content of the website to which the applicant objects, a collision of conflicting interests – the applicants interest in respect for his right to protection of personality and the operators interest in the design of his website and in news reporting – may actually have occurred or may occur in the State of the court seised? Does the determination of the special domestic connecting factor depend upon the number of times the website to which the applicant objects has been accessed from the State of the court seised?
3. If no special domestic connecting factor is required in order to make a positive finding on jurisdiction, or if it is sufficient for the presumption of such a special domestic connecting factor that the information to which the applicant objects has an objective connection to the State of the court seised, in the sense that an applicant objects, a collision of conflicting interests may actually have occurred or may occur in the State of the court seised and the existence of a special domestic connecting factor may be presumed without requiring a finding as to a minimum number of times the website to which the applicant objects has been accessed from the State of the court seised”
Facts of Case
C-509/09 – eDate Advertising:
In 1993, X, who is domiciled 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 an action 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 damage caused by printed matter, those courts have jurisdiction to deal with cases only in relation to 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 content 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. This applies to individual(s) and to companies. However to prove damage you must show the extent of the damage in that jurisdiction in the normal way.
On the 17 October 2011, PAIL was involved in a pre-action disclosure application that considered the application of 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 worldwide website through which UK expatriates living abroad can sell their products and services. Through franchisees, the website licenses its name to companies in different countries in Europe: Different parts of the website are then directed at those different countries. The terms and conditions for the Website are written in English and the jurisdiction clause states that jurisdiction is in the UK.
The interesting issues from a Internet defamation jurisdiction perspective:
1. Our clients outlet is based in France. Our client company is UK incorporated.
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 the part of its website pointing at France was managed by a Franchisee 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 being sued as jointtortfeasor.
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. The application was opposed by solicitors.
The Master ordered that our client be 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).
This issue of the interpretation of Article 5(3) in relation to electronic torts is currently being heard by the European Court of Justice (ECJ) in Cornelia Buschmann v. Cormelius de Visser C-292/10 not yet decided.
By showing that the Website was accessible in the UK, we were able to demonstrate that the harmful 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.