Where can claimants obtain pan-European relief against online publishers for infringement of privacy?
The CJEU's decision in Olivier Martinez v MGN Limited C-161/10 (25 October 2011)
If an article on an English newspaper's website allegedly infringes the privacy of a French celebrity, where can he sue the newspaper and what remedies can he obtain? This was the question which the CJEU recently considered. It gave the following answers, the third of which is a new development and could have significant implications for online publishers:
- The celebrity claimant can sue in England (the home jurisdiction of the defendant newspaper) and obtain damages for the infringement across the EU;
- The celebrity can sue in each member state where the online content has been accessible and obtain damages for the infringement in that member state; and
- The celebrity can sue in France (the place where he has his "centre of interests") and obtain damages for the infringement across the EU.
The ruling applies equally to personality right and privacy cases and should apply by analogy to defamation cases. Click to read the full judgment.
Background to the CJEU's ruling
Jurisdiction in the European Union is governed by the Jurisdiction Regulation (44/2001/EC). The general rule is that defendants domiciled in an EU member state must be sued in that member state. There are a number of exceptions to this rule, including in matters relating to tort (such as defamation and breach of privacy) where a defendant may be sued "where the harmful event occurred or may occur". This exception exists to facilitate the "sound administration of justice" - disputes should be resolved in the courts of a country which has a connection to the dispute.
Online publications pose a potential problem for this exception - the "harmful event" can simultaneously "occur" in every member state, without this being the intention of the defendant. This opens up the defendant to any number of possible actions but finding a connection with each member state can be difficult for a claimant. Hard copy publications distributed in a number of member states pose a similar problem and the CJEU's solution (in a case in 1995) was to make options 1 and 2 above available to a claimant. The CJEU did not think, however, that this solution was adequate in the online context: serious harm could be caused to claimants around the EU (and, indeed, the world) but it could be difficult to assess the damage caused in each member state.
The CJEU's solution to this problem was to create the concept of "centre of interests" - the claimant can sue in the jurisdiction where he has his centre of interests and can claim for the consequences of the "harmful event" in that jurisdiction and in the remainder of EU jurisdictions, even if that jurisdiction is not the defendant's "home" jurisdiction. The CJEU felt that the sound administration of justice would best be served by courts in the jurisdiction of the claimant's centre of interests dealing with the case, as those courts would be best placed to assess the harm to the claimant.
The solutions in relation to intellectual property rights are similar but their exact application depends on the nature of the relevant right and the terms of the relevant EU legislation (if any). For example, the English Court of Appeal held in 1999 that an action for infringement of an intellectual property right in another EU member state (there, a Dutch copyright) may be tried in England, where England has jurisdiction over the defendant. Similarly, the Community Trade Mark Regulation provides that national CTM courts in the defendant's "home" jurisdiction can have jurisdiction in relation to acts infringing a CTM occurring within the territory of any EU member state. Moreover, the CJEU held earlier this year that such CTM courts can grant pan-EU relief e.g. injunctions. On the other hand, the courts in member states where the infringement happened only have jurisdiction in relation to that infringement.
The claimant's "centre of interests" - the new concept
Where might a claimant have his "centre of interests"? The CJEU thought that the criterion allows both the claimant and defendant "easily to identify" where the claimant may sue, as the defendant would be "in a position to know" where the centre of interests would be.
In many cases the answer will be obvious: the CJEU held that it would generally be where he lives (in the CJEU's words, his "habitual residence") or, alternatively, where he does most of his business (his "professional activity"). These will often coincide. Where they do not, defendants may not easily be able to predict where the centre of interests will be. For example, a footballer from country A may play in country B and his personal and professional life may be of equal interest in both. Where would his centre of interests be? It may all depend on the context and content of the particular article in question.
The Advocate General suggested a number of factors that could be taken into account, which related both to the personal circumstances of the claimant and to the nature of the information (e.g. where is it reasonably foreseeable that the information would be of interest in?). The CJEU focussed instead on the claimant's personal circumstances (i.e. where he lives or has his professional life). But where this does not provide a clear answer, the Advocate General's approach might provide some guidance. If it is followed in future, factors such as which territory the information is of interest in, the content of the information, indications given by the publisher (e.g. country specific domain names, language of website and nature of advertising) and page viewing figures could all be relevant.
Applying all of these factors may mean the answer depends on the nature of the article. So, articles about the private aspect of the footballer's life may be more related to his home "centre of interests" whereas articles about his playing life may be more related to his professional "centre of interests".
As a result of this decision, online publishers may have to think carefully about where they may face legal action in the EU and, in particular, the nature of relief available in that territory - claimants are now able to claim in their "home" jurisdiction for pan-EU damages rather than having to sue in the defendant's home jurisdiction.
Lawyers Adam Rendle, Niri Shanmuganathan
