Online Reputation Management Jurisdiction Lawyers
Specialist Internet Lawyer Since 1999
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For over a decade, PAIL® Solicitors has been providing consultations and support to stop online defamation, harassment and bullying and remove negative and/or damaging from the Internet. Contact us using the above form on all reputation legal matters or at +44 (0)207 305-7491 or by email to peter@pailsolicitors.co.uk to start taking action now.
When is there an issue of jurisdiction in reputation management cases?
The way the the law works is that different countries have sovereignty of how they wish to run their societies. Every country decides what laws to make and how they are to be enforced. If something happens that involves several different countries so for example the perpetrator is one country but the victim is another and the platform uppon which the act co plained is on yet another there would be three different countries involved in deciding bow to deal with what has happened.
What can be done in the UK courts to remove damaging online content? Which courts have authority to hear the case? How can a judgment in the UK be recognised and enforced in another EU country?
In the Brussels I Regulation***, the general rule is that the courts of the country in which the defendant is domiciled will have authority to hear try the case. The defendant's nationality is not relevant.
***Note Brussels I has been recast. It has been superseded by REGULATION (EU) No 1215/2012 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. The impact that Brexit will have on determining jurisdiction or understanding choice of court agreements when the UK leaves the EU is still being determined via negotiation.
But there are exceptions in special cases including in tort cases. Infringement of personality rights cases such as harassment, defamation, misuse of private information and data protection cases are all torts. In tort matters, the courts of the pace where the harmful event occurred may also have jurisdiction. For example, if a person's reputation was damaged in the UK as a result of someone's defamatory post in Germany, the case would be heard in the UK where the person's reputation was damaged.
Therefore in online content takedown cases, more than one country may have jurisdiction either (a) the state in which the defendant is domiciled or (b) the place where the harmful event occurred.
The first court to receive the claim is the court first seised or seized once the claim is served on the defendant. The court in which the claim is seised will determine jurisdiction under its law. Jurisdiction can be very favourable to a party for many reasons including availability of witnesses, accessibility to legal advice and beneficial procedural powers in one jurisdiction over another.
In Case 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) ***now Article 7(2) in Brussels I recast – 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 occurred' 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 Republi,c 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. According to the decision 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 Convention - ***now Article 7(2) in Brussels I recast.
In other words, an individual does not have to prove damage to make out Jurisdiction but must show that the publication was distributed in the Jurisdiction.
How do you interprete Article5(3) now Article 7(2)?
This issue of the interpretation of Article 5(3) ***now Article 7(2) in Brussels I recast - in relation to electronic torts was heard by the European Court of Justice (ECJ) in eDate Advertising GMBH OCJ 134/14.
The court held that a person who has been unlawfully attacked on an Internet website can either bring the case in the member state in which the publisher of the content is based, or in the Jurisdiction where the center of his interests are based.
The person harmed may also instead of bringing an action for all damage caused may bring a case in every jurisdiction in which the online content is accessible. But those courts only have jurisdiction in respect of the damage done in the territory of the court that is seised or seized of the case.
ONLINE REPUTATION MANAGEMENT JURISDICTION LAWYERS
Specialist Internet Lawyer