#5033 - E Date Advertisement - Conflict of Laws BCL

eDate Advertisement (2010)

Facts

In 1993, X, who is domiciled in Germany, was sentenced by a German court, together with his brother, to life imprisonment for the murder of a well-known actor. He was released on parole in January 2008.

eDate Advertising, which is established in Austria, operates an internet portal under the address 'www.rainbow.at'. In the section 'Info-News', on the pages dedicated to old news, the defendant made access to a report, dated 23 August 1999, available for purposes of consultation until 18 June 2007. That report, which named X and his brother, stated that they had both lodged appeals against their conviction with the Bundesverfassungsgericht (Federal Constitutional Court) in Karlsruhe (Germany). In addition to a brief description of the crime committed in 1990, the lawyer instructed by the convicted men is quoted as saying that they intended to prove that several of the principal witnesses for the prosecution had not told the truth at the trial.

X called upon eDate Advertising to desist from reporting that matter and to give an undertaking that it would refrain from future publication.

Question

Is the phrase "the place where the harmful event ... may occur" in Article 5(3) of [the Regulation] to be interpreted as meaning, in the event of (possible) infringements of the right to protection of personality by means of content on an internet website, that the person concerned may also bring an action for an injunction against the operator of the website, irrespective of the Member State in which the operator is established, in the courts of any Member State in which the website may be accessed, does the jurisdiction of the courts of a Member State in which the operator of the website is not established require that there be a special connection between the contested content or the website and the State of the court seised (domestic connecting factor) going beyond technically possible accessibility?

Holding

The test is Shevill continues to apply

In relation to the application of those two connecting criteria to actions seeking reparation for non-material damage allegedly caused by a defamatory publication, the Court has held that, in the case of defamation by means of a newspaper article distributed in several Contracting States, the victim may bring an action for damages against the publisher either before the courts of the Contracting State of the place where the publisher of the defamatory publication is established, which have jurisdiction to award damages for all of the harm caused by the defamation, or before the courts of each Contracting State in which the publication was distributed and where the victim claims to have suffered injury to his reputation, which have jurisdiction to rule solely in respect of the harm caused in the State of the court seised (Shevill and Others, paragraph 33).

Those considerations may, as was noted by the Advocate General at point 39 of his Opinion, also be applied to other media and means of communication and may cover a wide range of infringements of personality rights recognised in various legal systems, such as those alleged by the applicants in the main proceedings.

Problems in applying Shevill to Internet communication

However, as has been submitted both by the referring courts and by the majority of the parties and interested parties which have submitted observations to the Court, 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.

Adapting Shevill for Internet communication

Center of interests test: The connecting criteria referred to in paragraph 42 of the present judgment 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...