Online publication: ECJ ruling on jurisdiction

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Q: What connects princess of pop Kylie Minogue with the German brothers found guilty of murdering a well-known actor in the 90s?

A: The latest ECJ ruling on jurisdiction and choice of law in relation to the publication of harmful information on the internet.

The joint cases both related to harmful information posted on the internet. In each case, the claimant (Minogue’s former beau Olivier Martinez in one case and one of the murderous German brothers in the other) complained of infringement of his personality rights.

According to the Brussels Regulation, jurisdiction is generally based on the defendant’s domicile.

The defendant web publishers sought to rely on this, arguing that they could not be sued in the Member State of the claimants.

Questions were accordingly referred to the ECJ as to whether publication of harmful information on a website was actionable in Member States other than where the online publisher is physically established.

In particular, the ECJ was asked to decide whether there must 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”.

It is possible under the Brussels Regulation for claims to be brought “in the courts where the harmful event occurred or may occur” irrespective of the defendant’s domicile.

The Judge referred to this and noted that web distribution may be more harmful to personality rights than traditional publication means, as a result of its ubiquitous nature.

The place where the alleged victim has their centre of interests is likely to be the best forum in which to assess any damage to their personality rights, the Court found.

It was therefore held that claims relating to the infringement of personality rights by means of internet publication could be heard in the Member State in which the victim resides.

Victims can also bring claims in other Member States in which damage is suffered, but only in relation to the damage sustained in that State.

In order to protect free movement of services, however, Member States must ensure that defendants are not made subject to stricter laws than those of the Member State in which the service provider is established.


Cases C-509/09 and C-161/09, 25 October 2011

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