Acting to stop harm: the FCA and Appointed Representatives
Recently, there has been an interesting ruling by the European Court of Justice (ECJ) on two joined cases, both relating to alleged multi-jurisdictional defamation by means of material published on the internet. The inherent conflict of the globality of the internet and the territorially limited jurisdiction of national courts was the key issue.
eDate Advertising v X
In 1993, X and his brother were sentenced by a German court to life imprisonment for murder. X was released on parole in January 2008.
eDate Advertising (established in Austria) linked from the info news section on its website to a report that named X and stated that he had lodged an appeal against his conviction. In addition to a brief description of the crime, the report also contained a quote from X’s lawyer saying that X intended to prove that several of the principal witnesses for the prosecution had not told the truth at the trial. X requested eDate Advertising to stop reporting on the matter and to refrain from any future publication. eDate Advertising did not reply but removed the disputed information from its website.
Not satisfied with this, X brought an action before the German courts to prevent eDate Advertising from using his full name when reporting about the crime. eDate Advertising argued that the German court had no jurisdiction to make any order restricting publication outside of Germany. Therefore, the court referred the matter to the ECJ to make a ruling on whether it had such jurisdiction.
Martinez v MGN
The French actor Olivier Martinez and his father brought an action before the Paris Regional court that his private life had been interfered with, following a posting on the website ‘www.sundaymirror.co.uk’, entitled ‘Kylie Minogue is back with Olivier Martinez’, with pictures and details of a meeting between Kylie and Olivier.
The action was brought against MGN, the publisher of the Sunday Mirror. MGN raised the objection that the Paris Regional court lacked jurisdiction to make any order restricting publication, as the article was in English and on a UK website. The Parisian court also referred the matter to the ECJ to rule on jurisdiction.
The ECJ found that:
Where there was an alleged infringement of personality rights by way of content placed on an internet website, the claimant could bring an action either 1) before the courts in the country where the publisher is established, or 2) before the courts where the claimant is based, or 3) before the courts of each country where the allegedly infringing content is or has been accessible online.
The ECJ appears to be adopting a wide interpretation in order to protect an individual’s personality rights on the internet, allowing potential claimants several options as to how they want to bring an action against any infringer. Publishers should take a more careful approach to what and how they post information. In light of this clarification, ‘forum shopping’ by claimants may become more prevalent.
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