The Court of Justice of the European Union (CJEU) has ruled that victims of infringements of “personality rights” by means of the internet can chose to bring actions before the courts of the Member State in which they reside in respect of all the damage caused. The CJEU also held that the operator of an internet website covered by the E-commerce Directive cannot be made subject to requirements stricter than those provided for by the law of the Member State in which it is established.
In eDate Advertising GmbH v X and Olivier Martinez v MGN Ltd 25 joined cases C-509/09 and C-161/10 October 2010 (unreported), the Court of Justice of the European Union (CJEU) ruled that victims of infringements of “personality rights” by means of the internet can chose to bring actions before the courts of the Member State in which they reside in respect of all the damage caused. The CJEU also held that the operator of an internet website covered by the Ecommerce Directive cannot be made subject to requirements stricter than those provided for by the law of the Member State in which it is established.
Following the publication of an article on the Sunday Mirror’s website in February 2008, the French actor Olivier Martinez and his father issued proceedings in France against Mirror Group Newspapers (MGN) alleging interference with their private lives and infringement of the right of Olivier Martinez to his image.
The case was brought under Article 9 of the French Civil Code, which provides that “everyone has the right to respect for his private life”. MGN challenged the jurisdiction of the French court, arguing that there was no sufficiently close connecting factor between the placing online of the information in the United Kingdom and the alleged damage in French territory. The reference by the French court to the CJEU was joined with a separate reference from an Austrian court on the same issue.
The focus of the references was Article 5(3) of the Brussels Regulation, which provides that in matters relating to tort, delict or quasi-delict, a person may be sued in a Member State “where the harmful event occurred or may occur”. The question for the CJEU was, therefore, how that expression was to be interpreted in the case of online content.
The CJEU began by noting that the expression “place where the harmful event occurred” is intended to cover both the place where the damage occurred and the place of the event giving rise to it. Previous CJEU case law concluded that in such circumstances an action can either be brought in the Member State in which the publication is established for all the damage caused, or in each Member State where the damage occurred but only for the damage occurring in that Member State.
The CJEU held that the placing of content on the internet was to be distinguished from the regional distribution of printed matter by reason of the fact that it could be consulted instantly by an unlimited number of internet users worldwide. It therefore held that the ”connecting criteria” must in the current circumstances be adapted such that a person who has suffered an infringement of a personality right by means of the internet may bring an action in one forum in respect of all of the damage caused. It then held that since the court of the place where the victim has his “centre of interests” is in the best position to assess the liable impact on his personality rights of the material placed online, that court should have jurisdiction in respect of all damage caused within the European Union. In that context, the CJEU stated that the place where a person has the centre of his interests would generally, but not necessarily, correspond to his habitual residence.
Finally, in interpreting the E-commerce Directive, the CJEU ruled that the principle of the freedom to provide services precluded, in principle, the provider of an electronic commerce service from being made subject, in the host Member State, to requirements stricter than those provided for by the law of the Member State in which that service provider is established.
Personality or image rights, inasmuch as they exist in the United Kingdom, are a less elastic concept than in other jurisdictions. The prospect of being drawn into jurisdictions that recognise the maintenance of one’s image as a right in itself will be of concern to UK publishers, especially as courts in such territories have jurisdiction over all damage suffered. Whilst the caveat that stricter requirements cannot be imposed is some comfort, it is not at all clear whether that extends to remedies. Other Member States may be inclined to award damages for privacy breaches that are more generous than those awarded in the United Kingdom.