The Belgian 'right to reply' law for printed publications does not set libel or other damage as a criterion - the mere fact of being mentioned gives a person a right to reply in the publication. This has led to attempts at forum shopping, whereby plaintiffs choose to bring a claim in Belgium even though their claim has closer links with another jurisdiction.
In a recent case the Brussels Court of First Instance was seized by a French citizen who had been the subject of a report in The Sunday Times. The claimant, who was neither domiciled nor resident in Belgium, sought a right to reply (in English) in the newspaper, which is published in the United Kingdom. Approximately 1 million copies are sold in the United Kingdom and Ireland, compared to slightly more than 1,000 copies in Belgium.
The claimant argued that he had a right to bring his case before the Belgian courts on the basis of Article 5(3) of the Brussels Convention 1968,(1) whereby a person domiciled in an EU member state may be sued in another member state "in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur".
The parties all invoked EU case law, specifically the Shevill judgment of March 7 1995, in which it was held that a victim of damage may bring an action against the offender either before the court of the place where the damage occurred (requesting that all damages be remedied) or before the courts of the various places where damage was suffered (in each case seeking compensation for the damages suffered in that place).
The claimant argued that he had suffered damage in Belgium following publication of the article in The Sunday Times, of which a certain number of copies are sold and read in Belgium, and maintained that he was not seeking a remedy for the damage anywhere other than in Belgium.
The claim related to the insertion of a text, "in its entirety, without intercalation or modification, on the first page, in standard font of at least 20 point for the title, in the next edition of The Sunday Times". It therefore concerned a claim whose effects would extend well beyond the Belgian territory, as most of the newspaper's distribution and readership is outside Belgium. Consequently, the Brussels Court of First Instance found that the Belgian courts had no jurisdiction to hear the claim.(2)
A counterclaim of €10,000 for abusive proceedings was considered well founded. The court held that the plaintiff had acted with an element of recklessness and malice. It found that he had addressed a court that manifestly lacked jurisdiction; his claim was an attempt at forum shopping that sought to obtain a measure that was unavailable in the jurisdiction with the closest connection to the dispute (ie, the United Kingdom). The claimant had abusively and artificially invoked connections with Belgium, where the distribution of The Sunday Times represents only 0.1% of all copies sold.
For further information on this topic please contact Herman Croux at Marx Van Ranst Vermeersch & Partners by telephone (+32 2 285 01 00), fax (+32 2 230 33 39) or email ([email protected]).
(1) Now Article 5(3) of EU Regulation (44/2001), known as the Brussels I Regulation.