Judgment of the Court in Joined Cases C–509/09, eDate Advertising GmbH, and C–161/10, Olivier Martinez

 

Nikolay Bandakov[1]

 

The aim of this article is to summarize the facts, the Opinion of the Advocate General and the Judgment of the Court in joined cases C–509/09 and C–161/10 and to discuss in brief the reasoning of the Court of Justice as regards, on the one hand, the possible impact of the changes of the jurisprudence under Article 5(3) of Brussels I Regulation —more specifically regarding i) the criteria for establishing which courts retain international jurisdiction in cases of breaches of personality rights as a result of publications on an internet website — and, on the other hand, the interpretation by the Court of Justice of the legal nature of Article 3(1) and (2) of the Directive on electronic commerce — that is ii) whether this article of the Directive on electronic commerce could be understood as having the character of a conflict-of-laws rule, or should it be understood as a corrective to the law declared to be applicable pursuant to the national conflict-of-laws rules in order to adjust this law in accordance with the requirements of the country of origin.

According to the Court in the event of an alleged infringement of personality rights by means of content placed online on an internet website, competent i) in respect of all the damages caused are either the courts of the Member State in which the publisher of that content is established or ii) the courts of the Member State in which is based the centre of interests of the person who considers that his rights have been infringed. In addition the Court following the Shevill formula (C–68/93) recognizes the jurisdiction of iii) the courts of each Member State on the territory of which the respective online content has been accessible. Those courts, however, have jurisdiction only in respect of the damage caused within the territory of their Member State.

That interpretation of the Court has been discussed from the following perspectives. First, the decision to declare three different jurisdictions competent in the case of infringement of personality rights by publications on the internet speaks for the existing tendency for materialization of the jurisdictional rules, as long as a main factor for acknowledging the existence of three competent jurisdictions seems to be the calling need for ensuring complete protection of the personality rights which are most vulnerable to infringements by means of the internet. Second, the trend for fragmentation of jurisdictions is preserved as the Shevill rule has been confirmed. Although the possible negative consequences of that solution have been pointed out in the article, it is argued that the probable disadvantages should not be overestimated. Third, the new criteria for establishing the international jurisdiction have been analyzed. On the one hand, by acknowledging the competence of the courts in “the centre of interests of the alleged victim” the Court in fact creates a forum actoris rule which competes with the general actor sequitur forum rei rule of Article 2 of the Brussels I Regulation. It remains to be seen whether this solution does not distort the overall balance of the main structure of the Regulation. On the other hand, by acknowledging the international jurisdiction of the Member State where the infringing internet content has been or is accessible, the Court allows the establishing of parallel jurisdiction on the place of materialization of the damage. The article analyzes the possible advantages and disadvantages connected to that solution, taking account also of recent developments concerning the project to review the Brussels I Regulation. The conclusion has been drawn that at this time it is uncertain whether the possible conflict between this jurisdictional rule and the requirement for the existence of a “close link” under consideration 12 of the Regulation could adversely affect the legal certainty and forseeability.

As far as the second main issue of this judgement is concerned, it is noted that the scope of the rule establishing international jurisdiction at the place of habitual residence of the alleged victim is actually restricted as the Court limits the claims to the level of protection according to the law of the country of origin of the supplier of the services under the Directive on electronic commerce. The true nature of this rule is explained from a conflicts-of-law perspective. It is argued that this mechanism for excluding or limiting the lex fori resembles to a great extent the mechanism whereby a public policy clause is put into action. Notwithstanding the doctrinal qualification of this rule, the latter implies that in all cases the contents of the foreign law should be established by the court seized. However, the application of lex fori should not be excluded a priori but only if upon comparing the two conflicting laws it becomes clear that the law of the state of origin is more advantageous for the service supplier.

 

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Линк към цялата статия на български език: ОПРЕДЕЛЯНЕ НА МЕЖДУНАРОДНА КОМПЕТЕНТНОСТ  НА СЪДИЛИЩАТА НА ДЪРЖАВИТЕ ЧЛЕНКИ  ПО ДЕЛА ОТНОСНО ОТГОВОРНОСТ ЗА НАРУШЕНИЯ НА ПРАВАТА НА ЛИЧНОСТТА В ИНТЕРНЕТ

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[1] PhD Candidate in Private International Law, Faculty of Law — Sofia University “St. Clement Ohridsky” and lawyer linguist, Directorate General “Translation”, Court of Justice. This publication represents exclusively the personal opinion of the author and does not engage the institutions previously mentioned.