Last week the Court of Justice of the European Union (CJEU) ruled that where a website operator targets and then provides material infringing sui generis database rights to recipients based in an EU Member State over the internet, the act of infringement occurs at least in the EU Member State where those recipients are located.
In our legal update in June this year, we discussed how the Advocate General of the European Court of Justice had said, in his opinion on the case, that where a website operator displays material on its website that infringes the sui generis database right of a third party, that operator infringes the third party’s rights both in the country in which the server hosting the website is based and in the countries in which the users accessing that information are based.
In a Judgment that does not quite follow the Advocate General’s opinion, the CJEU ruled that:
“Article 7 of Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases must be interpreted as meaning that the sending by one person, by means of a web server located in Member State A, of data previously uploaded by that person from a database protected by the sui generis right under that directive to the computer of another person located in Member State B, at that person’s request, for the purpose of storage in that computer’s memory and display on its screen, constitutes an act of ‘re-utilisation’ of the data by the person sending it. That act takes place, at least, in Member State B, where there is evidence from which it may be concluded that the act discloses an intention on the part of the person performing the act to target members of the public in Member State B, which is for the national court to assess.”
At the bare minimum, the ruling suggests that Sportradar will not be able to challenge the English Court’s jurisdiction to hear the case when it returns to the English Court of Appeal. The Judgment appears to focus heavily on the fact that the data in question relates to sport taking place in the UK and Sportsradar’s particular targeting of the public in the UK. Therefore the fact that the CJEU has confirmed that an action may be brought in the countries which are targeted by alleged infringers will be welcomed by rights holders. In answer to Sportsradar’s claim that the allegedly infringing “act” occurs in the server location, the CJEU noted that “it is sometimes difficult to localise such a server with certainty” and that Sportsradar’s argument, if followed, could lead to similar website operators moving their servers to a non-member state of the EU in order to avoid allegations of infringement.
It certainly is a blow to Sportsradar, which had hoped that the Court would rule that the case should only be heard in Germany, where its server is based.
The case now returns to the English Court of Appeal for the remainder of the appeal to be heard and decided upon.