Kevin Bays, media and IP partner, Davenport Lyons
Tort in the web
16 January 2012
ECJ sheds new light soon after Pinckney upon criteria for establishing jurisdiction in copyright transnational infringement matters
28 April 2014
17 February 2014
28 July 2014
3 June 2014
15 October 2013
ECJ adapts established tort law for internet cases
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In cases involving member states of the EU, the basic principle is that proceedings should be brought in the courts of the state of the defendant’s domicile.
However, according to Article 5(3) of the relevant regulation proceedings may also be brought, in matters relating to tort, in the courts of the state where the harmful event occurred. This includes both the place where the damage occurred and the event giving rise to it.
In the case of a libellous newspaper article, the European Court of Justice (ECJ) held, in Shevill & Ors v Presse Alliance (1995), that the place of the event giving rise to the damage is where the publisher is “established”. A claimant may bring an action in the courts of the state where the publisher is established for all the harm caused by the libel.
Alternatively, a claimant may bring a separate action in every member state in which the defamatory words are distributed and in which he has a reputation - but only in respect of the injury suffered by him in that state - the courts of which deal with the merits of the case in accordance with national law.
The principles of Shevill also apply to torts other than defamation, such as the infringement of privacy rights, and to other means of communication, including publication on the internet.
A claimant may bring an action for an internet libel/breach of privacy in the member state where the publisher was domiciled or established in respect of all the damage caused by the publication, wherever it occurred within Europe.
Alternatively, the claimant may bring separate proceedings in each member state in which he claims to have suffered an infringement of his rights and the publication has been “distributed”.
The ECJ, recognising the special characteristics of the internet, drew a distinction between the physical distribution of newspapers and online publication.
As the latter is intended to ensure the ubiquity of the content throughout the world, the criterion for jurisdiction relating to distribution is of limited value.
In view of the difficulties involved in applying the criterion of the occurrence of damage to online publications, the ECJ decided that the Shevill principle should be adapted in internet cases.
It held that a person whose personality rights (including reputation and privacy) have been infringed on the internet may now bring one action in respect of all the damage caused by the publication in the courts of the place in which he has the “centre of his interests”.
A person having the centre of his interests in France may therefore bring an action in the French courts, applying French law in respect of an internet publication accessible there, and seek to recover damages for all the harm alleged to have been suffered in all member states.
Alternatively, a claimant may choose to sue in any state from which the internet publication is accessible for the damage alleged to have been caused in that particular state.
What is clear is that claimants now seem to have the benefit of a forum ’supermarket’ as well as the local shops.