Case Law: eDate Advertising and Olivier Martinez – Mark Vinall

Existing legal principles are not always easy to adapt to the world of the internet. In its recent judgment in Joined Cases C-509/09 and C-161/10 eDate Advertising GmbH v X and Olivier Martinez v MGN Ltd (25 October 2011), the Grand Chamber of the Court of Justice of the European Union has laid down a radical new rule of jurisdiction over torts committed online, giving claimants the choice of suing in their home courts.

Questions of jurisdiction over EU-domiciled defendants are determined by the Judgments Regulation (Council Regulation (EC) No 44/2001). The general principle of that Regulation is that defendants should be sued in their Member State of domicile (art. 2(1)). However, art. 5(3) also confers “special jurisdiction” in tort cases on the courts for the place in a Member State “where the harmful event occurred or may occur”. The application of that article to libel cases was explained by the ECJ in Case C-68/93 Shevill v Presse Alliance SA [1995] ECR I-415, which decided that a claimant wishing to sue the publisher of a newspaper which had been distributed in a number of different countries could do so under art. 5(3) either in the courts for the place where the publisher was established (which would have jurisdiction to award damages for all the harm caused by the defamation), or in the courts of each Member State in which the publication was distributed (each of which would have jurisdiction, but limited to any damage to reputation suffered in that Member State). Thus Miss Shevill was able to sue a French publisher in England in respect of the damage to her reputation caused by the 250 copies of France-Soir distributed in England (although these days a claimant in her position would have to surmount the “real and substantial tort” test established in Jameel v Dow Jones [2005] QB 946).

eDate concerned a claim by a German convicted murderer, X, brought in the German courts against the Austrian operator of an internet portal which published a news story about him. Martinez involved a claim by the French actor Olivier Martinez and his father, brought in the French courts against MGN in respect of an article published on the Sunday Mirror website entitled “Kylie Minogue is back with Olivier Martinez”, which the claimants alleged interfered with their privacy and image rights.

The Court decided that the rule in Shevill was inadequate to deal with online publication. It stated that

“the placing online of content on a website is to be distinguished from the regional distribution of media such as printed matter in that it is intended, in principle, to ensure the ubiquity of that content. That content may be consulted instantly by an unlimited number of internet users throughout the world, irrespective of any intention on the part of the person who placed it in regard to its consultation beyond that person’s Member State of establishment and outside of that person’s control. It thus appears that the internet reduces the usefulness of the criterion relating to distribution, in so far as the scope of the distribution of content placed online is in principle universal. Moreover, it is not always possible, on a technical level, to quantify that distribution with certainty and accuracy in relation to a particular Member State or, therefore, to assess the damage caused exclusively within that Member State.”

The Court took the view that the Shevill criteria

“must therefore be adapted in such a way 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, depending on the place in which the damage caused in the European Union by that infringement occurred”.

Of course, Shevill already provided for at least one such place – the place where the publisher is established (and, if different, the place where the defendant is domiciled), but the Court evidently felt that was inadequate. It decided that the court of the place where the claimant had his “centre of interests” should have jurisdiction as well. It explained that

“The place where a person has the centre of his interests corresponds in general to his habitual residence. However, a person may also have the centre of his interests in a Member State in which he does not habitually reside, in so far as other factors, such as the pursuit of a professional activity, may establish the existence of a particularly close link with that State.”

As Advocate General Villalón (who had proposed a similar but more sophisticated test which took account of the place to which the information was most relevant as well as the claimant’s “centre of interests”) remarked in paragraph 54 of his Opinion [French text], the Court’s decision is emphatically not “technology neutral” – it creates, for pragmatic reasons, a special regime applicable only to online publication (although there seems to be no reason why it should not be applied to online torts other than infringement of “personality rights”, such as copyright infringement).

The exception to Shevill which it establishes seems to swallow up the rule, given that virtually all print newspapers also publish an online edition. It also represents a substantial derogation from the general principle of the Regulation that defendants generally get the benefit of “home advantage”.

Jurisdiction is unusually important in defamation and privacy cases, because the Rome II Regulation (Regulation (EC) No 864/2007), which harmonises choice of law rules for non-contractual claims, does not apply to cases of this kind (art. 1(2)(g)). Claimants are thus enabled not only to forum-shop, but to some extent to law-shop too. However, the decision in eDate also highlights one important limitation on this, in the form of art. 3 of the E-Commerce Directive (Directive 2000/31/EC), which precludes a provider of an “information society service” from being made subject to stricter requirements than those provided for by the substantive law of its own Member State of establishment, unless those requirements meet certain very strict conditions. The effect of this rule was described by in the CJEU’s judgment (summarising the judgment of the referring German court, but with apparent approval) as follows:

“The substantive law outcome under the law declared to be applicable pursuant to the conflict-of-laws rules of the State in which the court seised is situated is, in individual cases, altered in its content, where appropriate, and reduced to the less stringent requirements of the law of the country of origin…the country-of-origin principle does not affect the national conflict-of-laws rules of the State in which the court seised is situated and applies – in the same way as the fundamental freedoms set out in the EC Treaty – only in the context of an individual cost/benefit comparison at a national law level.”

“Information society services” include “offering on-line information” as an economic activity, even if not remunerated by the recipient (recital 18 to the E-Commerce Directive).

Therefore, while the Court’s judgment means that publishers face an increased prospect of being called to appear before foreign courts in respect of online publications, it also emphasises the limited extent to which they can be subject to tougher substantive restrictions than those which are imposed by the law of the Member State in which they are established.

Mark Vinall is a barrister at Blackstone Chambers.