The European Court of Justice recently decided on jurisdiction in cases of alleged copyright infringement by online publications in its ruling in Hejduk v EnergieAgentur. Under the Brussels I regulation, the national courts in the state where the website is accessible have jurisdiction in respect of the damage caused in that state. In view of this judgment, website operators should be aware that they may be sued for potentially infringing material in all European member states where their websites can be accessed.

The ECJ’s judgment was given in a dispute between Ms Hejduk, a photographer who held the copyright to several photographic works, and EnergieAgentur, an organisation that published these photographic works on its website without Ms Hejduk’s consent or any statement of authorship. Ms Hejduk brought an action before a court in Vienna. EnergieAgentur challenged that court’s international and local jurisdiction. The court asked the ECJ whether it could exercise international and local jurisdiction on the basis of article 5(3) of the Brussels I regulation, which provides that the court of the ‘place where the harmful event occurred or may occur’ can claim special jurisdiction.

The ECJ reiterated that article 5(3) Brussels I grants jurisdiction to both the court of the place where the damage occurred and the court of the place of the event giving rise to damage. The Court then discussed both grounds in relation to the dispute at hand.

As regards the event giving rise to the damage, the Court held – in line with previous case law – that in the case of alleged online copyright infringement, this event lies in the actions of the website’s owner. The place of infringement must therefore be located at the place where EnergieAgentur has its seat. As EnergieAgentur does not have its seat in Austria, the court in Vienna could not claim jurisdiction on this basis.

The ECJ then considered the place where the damage occurred and held that the key factor in establishing damage caused by online infringement is the accessibility of the website. Since the rights on which Ms Hejduk relied are protected in Austria, the damage or likelihood of damage occurring as a result of online publication arises from the fact that the works can be accessed in Austria. The ECJ considered it irrelevant that the website was not directed at an Austrian market as it operated under a German top-level domain (a ‘.de’-address). In line with previous case law, the Court emphasised that the court in Vienna would only have jurisdiction over the damage occurring within Austria.

Although jurisdiction on the latter basis will not extend to all IP infringements, it may be an interesting strategy for copyright owners to commence proceedings for online infringement in a copyright-friendly jurisdiction – such as the Netherlands – as a first step in cross-border litigation. Website operators, on the other hand, should be aware that they may be sued for potentially infringing material in all European member states where their websites can be accessed. They would be wise to assess this risk before making content available.