Tuesday, 25 October 2011

Where to sue for harmful online content? CJEU case in eDate Advertising and Martinez/Martinez (C-509/09, C-161/10)

25 October 2011: CJEU joined cases C-509/09 and C-161/10 eDate Advertising and Martinez/Martinez

Today CJEU gave judgment in eDate Advertising case setting rules as to which court should have jurisdiction in cases concerning infringement (alleged one) of personality rights that happened by means of content placed online on an internet website. It gave interpretation to Article 5(3) of Regulation 44/2001 on jurisdiction and recognition and enforcement of judgments in civil and commercial matters as well as Article 3 of Directive 2000/31/EC on electronic commerce, of which the first one is of particular interest for consumers and will be discussed here.

The problem that had been addressed was as follows. Imagine that on some website personal information of a consumer is published. If that consumer thinks that this information is either incorrect or improper and should be taken down from the internet, he might know what his first step should be, i.e. contacting the website, but what he should do after the website doesn't react to his notification is a bit more tricky to figure out. The consumer may go to his own national court to demand removal of such information, but if the website is set on a server of another Member State, operated and owned by parties from another Member State, then the chances are that it will be difficult to establish which court should have jurisdiction over such procedures.

This is what happened in the two cases presented to the CJEU. In eDate Advertising X, domiciled in Germany, demanded removal of an archived internet news report on a Rainbow website in which his full name was given as a person who murdered a well-known actor and was appealing from his conviction. After being released on parole X wanted the website to stop reporting that matter and refrain from future publication. eDate Advertising operated this website and was established in Austria. In Martinez/Martinez the French actor Olivier Martinez and his father, Robert, complained of interference with their private lives, etc. by an English website of Sunday Mirror which published a text entitled "Kylie Minogue is back with Olivier Martinez" detailing their meeting in 2008.

In both these cases national courts of the place of domicile of persons claiming alleged infringement of their personality rights were not sure as to whether they had jurisdiction. Article 5(3) of the above-mentioned Regulation determines that in matters relating to tort, delict or quasi-delict a person domiciled in a Member State may be sued in courts of another Member State, where the harmful event occurred or may occur. This 'place where the harmful event occurred or may occur' is difficult to establish when infringement may happen by means of content placed online. In an earlier case Shevill and Others the CJEU had held that:

"in the case of defamation by means of a newspaper article distributed in several Contracting States, the victim 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 of 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"  (Par. 42)

The same considerations may be applied to other media and means of communication, e.g. online content. (Par. 44) However, the CJEU takes into account that distribution online happens instantly after publication of the content and is, in principle, unlimited. Moreover, it might be difficult to quantify that distribution with certainty and accuracy in a particular Member State due to technological difficulties. This leads to difficulties in determining damage that had been caused within a particular Member State. (Par. 45-46) At the same time, one cannot help but notice the serious nature of the harm which may be suffered by a person whose rights have been infringed on a world-wide basis. (Par. 47) Taking this into account, the CJEU decided that in cases of online infringement of personality rights the above-mentioned rule should be adjusted in favour of the victim:

"a person who has suffered an infringement of a personality right by means of the internet may bring an action in one forum in respect of all of the damage caused, depending on the place in which the damage caused in the European Union by that infringement occurred. Given that the impact which material placed online is liable to have on an individual’s personality rights might best be assessed by the court of the place where the alleged victim has his centre of interests, the attribution of jurisdiction to that court corresponds to the objective of the sound administration of justice" (Par. 48)

The centre of interest means usually habitual residence, but can be determined otherwise if e.g. professional activity is pursued in another Member State. (Par. 49)

This all means that if information is posted about consumer's private life online that he would like to object to, he might do so in his own national court, regardless where the website that posted that information is established. Moreover, he may claim damages in one court for infringement of his personal rights all over Europe and claim all of his damages in one procedure.

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