Defamation: draft Rome II regulation to allow privacy law through the backdoor?

Clare Hoban, head of legal and public affairs for the Periodical Publishers Association (PPA), said that she had received “a sympathetic hearing” when she recently gave evidence to the House of Lords European Select Committee which is currently reviewing the Rome II proposal, the draft Regulation which would harmonise the law applicable to non-contractual obligations in cross border disputes. “They appreciated our difficulties simply because they are so apparent,” she said.

According to Hoban, the proposals as framed would “cause great uncertainty for publishers and, under Rome II, the law that would apply would be the law of the country in which the damage arose or was likely to arise. The proposals explicitly suggested that the principle would apply to violation of privacy rights or defamation.

“In this country truth is a defence to a defamatory statement but in France truth isn’t always regarded as such,” she argued. Rome II could see the introduction of a privacy law through the backdoor. “Although we don’t have an express privacy law here we could have a judge having to think through concepts of privacy under the proposal,” she continued.

The latest draft of Rome II is currently being reviewed by its appointed rappoteur, UK MEP Diana Wallis. According to Hoban, there were “encouraging signs”. In particular, Diana Wallis recently reported that she was not against country of origin as regards defamation, and that she would consider amending the proposal given that online and broadcast media were subject to country of origin principles.