knowledge 22 September 2021 |

Defamation: Is a Significant Shift in the Criteria for Determining Jurisdiction at EU level on the Way?

Background

The Brussels Recast Regulation 1215/2012¹ seeks to provide parties with relative certainty as to where they may sue or be sued, as well as reducing the risk of irreconcilable judgments across different Member States.  Traditionally under article 5(3) of the Brussels Regulation (44/2001),² one could sue for defamation in respect of traditional publications either in the Member State where the defendant was domiciled and recover damages for all the harm caused, or in the Member State where the harmful event occurred and recover damages for the harm caused in that jurisdiction only.³ Article 7(2) of the Brussels Recast Regulation is in identical terms, varying the general rule that a defendant should be sued where it is domiciled to and also allows for proceedings where the harmful event occurred.  This principle of going beyond the normal jurisdiction rules to permit claims in member states where defamatory content may have caused damage is known as the “mosaic approach” to jurisdiction.

The question of where the harmful event occurs is not straightforward in respect of digital media, as defamatory content is generally accessible on the internet and it was precisely this scenario that the CJEU had to contend with in eDate Advertising,⁴ where the CJEU ruled in respect of transnational defamatory content published online without restriction, that the court of the Member State where the plaintiff has its centre of main interests has jurisdiction to determine a claim for damages for all of the harm caused by the defamatory content, or alternatively the plaintiff may sue in any Member State in which the content is or has been accessible but only in respect of the damage caused within that Member State.

So following eDate, a person wishing to recover compensation for online defamation can issue proceedings where the defendant is domiciled, in the place where the plaintiff has its centre of main interests, or where the online content may have caused damage, subject to being limited to recovering damages for any harm caused in that specific Member State in respect of the last option.  In other words, the court retained the mosaic principle on the basis of the ubiquity of any online content.  In respect of requests for rectification or removal of online content, as distinct from tort claims for compensation, however, the court has since determined that as removal or rectification is a “single, indivisible application”, any such claims must be brought in the territory where the plaintiff has its centre of main interests (Bolagsupplysningen and Ilsjan).⁵ This has led some to question whether the CJEU was effectively reversing its approach and moving away from the eDate mosaic approach to jurisdiction.

Case before the court

In the recent case of GTflix Tv v DR,⁶ the French Cour de Cassation referred a question to the CJEU as to whether jurisdiction in a case involving a claim for compensation for defamatory content as well as rectification or deletion of content must be determined according to the Member State with jurisdiction to deal with the deletion/rectification aspect of the claim.

In his preliminary opinion in GTflix Tv v DR, Advocate General Hogan has indicated that the decision in Bolagsupplysningen and Ilsjan does not necessarily reverse the court’s prior case law, in his view, and that there are good reasons why the mosaic principle should hold in respect of claims concerning defamatory online content.  A person might fail to recover damages in one Member State on the basis of not having a sufficient reputation in that state, or the content having only been accessed by a very small number of people in that state, but still succeed in another Member State where more persons might have read the content or due to the plaintiff having a more extensive reputation there.  Equally, as defamation law is not harmonised across the EU, there could be differences in law such that a person could fail in one Member State and succeed in another.  So the potential for irreconcilable judgments in respect of defamation where the court of any given Member State can only assess damages on the basis of the harm caused within its territory is, in the view of the Advocate General, not a significant issue, whereas it would be as regards an application for deletion or rectification of content.  The Advocate General also opines that the potential for SLAPP suits whereby well-resourced parties litigate in several jurisdictions to tie up the defendant in different claims could be dealt with by having sufficiently rigorous costs provisions, such that plaintiffs would bear the risk of adverse cost rulings if unsuccessful.  Defendants, he points out, also have the option of seeking a stay on related claims under Article 30 of the Brussels Recast Regulation.

As regards the argument that the mosaic principle leaves defendants uncertain as to where they may be sued, the Advocate General is not so convinced, stating “when a person decides to post content on the internet that is ‘accessible’ from all Member States, that person can expect to be sued in each of those Member States.”  Culturally, defamatory material may be regarded differently in different jurisdictions, and damages can vary significantly as between the different legal systems.  Taking all of that into account, and rather than jettison the mosaic principle, Advocate General Hogan suggests that combining that principle with a “focalisation” criterion would reduce the scope for legal uncertainty, by having jurisdiction determined according to whether the defamatory content was directed at a particular Member State.  Accordingly, applying this criterion the Advocate General considers that the French courts in GTflix Tv v DR will have jurisdiction if it is established that GTflix has an appreciable number of customers in France who are likely to have access to and understand the publication or publications at issue, with the assessment of those facts being a matter for the French court.

Analysis

The application of a focalisation criterion raises interesting issues for providers of online content.  Much online content is not targeted at any specific jurisdiction, although digital media may target geospecific advertising to a given Member State.  Applying the focalisation criterion, an article in Italian on a website that carries advertising directed at the Italian market might reasonably be found to be directed at readers in Italy resulting in the Italian courts having jurisdiction to determine a claim for damages for defamation arising from the article, while a Dutch blogger’s defamatory postings on the comments page of a Dutch newspaper would likely not result in the Swedish courts having jurisdiction, even though the content was fully accessible in Stockholm.  Content in English on a topic that is not obviously destined for any specific market seems much more problematic, given the universality of English, meaning that it may be harder to determine jurisdiction in such cases and much less clear from a legal certainty perspective. 

It is notable that the Advocate General has pointed to factors such as the extent of readership of the content and the extent of a plaintiff’s reputation in a given Member State as being relevant to the question of jurisdiction.  The Irish High Court has recently rejected arguments that jurisdiction based on the eDate decision requires that content must have been accessed, finding that that the material must only be accessible within the territory of the Member State.⁷  It would seem logical that if there is a desire to reduce the legal uncertainty arising from the mosaic principle, requiring that the content must have actually been accessed in order for the courts in a given Member State to have jurisdiction under the Brussels Recast Regulation would seem to be a shorter way home than adding a further, new criterion of focalisation, which may be more difficult to establish on the facts of any given case.  The Advocate General’s pithy summing up of his view that there must be an appreciable number of customers in the Member State who are likely to have access to and understand the online content appears to point firmly towards actual accessing of content being a prerequisite for jurisdiction.  This would certainly benefit from clarification at CJEU level.

Advocate General Hogan’s opinion is not binding on the Court of Justice and it remains to be seen whether it will follow the same approach in its judgment, which will issue at a later date.