Jurisdiction issues
Under the Brussels I Regulation parties can sue a person in a tort/delict action either in the place where the defendant is domiciled (Article 2) or in the ‘place where the harmful event occurred’ (Article 5(3)). The European Court of Justice in the Bier case[1] interpreted the latter ground of jurisdiction, as it was in the identically worded predecessor of the Brussels I Regulation (the Brussels Convention), to encompass both the ‘place where the event giving rise to the damage occurred’ and the ‘place where the damage occurred’. Put more simply both the ‘place of acting’ and the ‘place of damage’.
In Shevill v. Press Alliance[2], the European Court of Justice decided, in an international defamation context, that an English domiciliary was able to sue a French domiciled newspaper either in the place where the defendant is established, in this case France, in relation to the entire circulation of the publication, or in any place where the allegedly defamatory publication is distributed, including England but solely in relation to the damage to reputation caused by the distribution of the publication in that jurisdiction.[3] In doing so the Court gave an autonomous interpretation of the ‘place of the event giving rise to the damage’ for the purpose of a libel by a newspaper article distributed in several Contracting States. It did not refer to national law for this but rather created an EC norm that it ‘can only be the place where the publisher of the newspaper in question is established’.[4] The Court, however, confirmed that the assessment of whether an event is harmful is not determined by the Brussels Convention, but on the basis of the applicable substantive law, as determined by the conflict rules of the forum, provided that the effectiveness of the Convention is not thereby impaired.[5] Usually the place where the defendant is established will be the same as the place of the defendant’s domicile under Article 2. Indeed, under the Brussels I Regulation, Article 60, the place of a defendant’s domicile encompasses several connecting factors (statutory seat, central administration, and principal place of business) and therefore it is inconceivable that this part of Article 5(3) adds any value for a plaintiff who would be better advised simply to use Article 2 in a case where it is arguable where the defendant is established because its seat, central administration and principal place of business are in different countries.
It is not clear why the Court chose the place where the newspaper is ‘established’ as the place of the event giving rise to the damage. As Briggs has argued a ‘more rational’ conclusion is to focus on the ‘place of editing’.[6] The latter is where the responsibility lay for the decision to print the allegedly libellous article. Depending on the definition of ‘established’ it may be entirely artificial to say it was where the ‘event’ which gave rise to the damage occurred. The statutory seat might have been chosen for taxation or regulatory reasons and the company might have taken no decisions there that were in any way connected with the libel. A third variation is the one proposed by Advocate General Darmon in Shevill in which he said that the place of the event giving rise to the damage ‘is that in which the newspaper is published or the programme is broadcast’.[7] This was interpreted by Advocate General Leger to mean the ‘place where the publication was printed’.[8] As Briggs said the Court was surely right to reject the place of printing as a solution because ‘newspapers with international circulation are printed in places convenient for such distribution, but with no local input beyond paper and ink.’[9] However, the place of publication could be a serious alternative to the place of editing. As an editor of a Journal I am aware that editing can be done in one country and the place of publication, in terms of the place where the publisher takes final decisions about what is published in the Journal on sensitive questions relating to a person’s reputation, is in another country. So the best test, in terms of finding the place that is at the root of the wrongful act, might be the place where the decision was taken to publish the material that is allegedly defamatory or a violation of a person’s privacy rights. However, it will not be easy for the plaintiff to know where that decision was taken and therefore it is not the best test for establishing jurisdiction. Such a test needs to be more certain and transparent from the point of view of the plaintiff. It is probably wise to go for the place of publication, construed as the place of editorial control, rather than the place of printing (too fortuitous) or the place where the defendant is established (already covered by Article 2). But then again there is a good argument for saying the plaintiff has enough choice from the place where the damage occurred and the place of the defendant’s domicile under Article 2 (as interpreted by Article 60 of Brussels I) to justify subsuming the place of the event giving rise to the damage within the already existing choices under Article 2. The problem with that theory might be in relation to a natural person who publishes a libel in a country different from the country where they are domiciled . This will rarely happen but in those cases a place of publication rule may create an appropriate alternative for suing that person.
In relation to the place where the damage occurred the solution adopted by the Court was the one advocated by Paul Lagarde in 1974 and supported by Advocate General Darmon, in turn supported by Advocate General Leger.[10] It has the disadvantage that a strong plaintiff (someone with an international reputation is usually well off) might deliberately make the job of a weak defendant (a small publisher with an international market) difficult by suing them for the same published statement in all the jurisdictions where the publication was distributed and the plaintiff has a reputation in the hope that they will accumulate more damages than they would by simply suing the defendant at his domicile or by multiplying the proceedings drive up the costs and the harassment to the defendant to force the defendant to settle out of court for more than they would otherwise obtain. However, the rule is a good one when one focuses on the individual plaintiff who has a wide reputation but is not wealthy and the defendant is a large newspaper publisher or broadcaster.
In the Brussels I Regulation Review being conducted by the Commission it seems likely that the Shevill ruling in Article 5(3) will at least be considered. The Heidelberg research group that is paid by the Commission to do research for the Brussels I review asked the following question to the national reporters (of whom I was one):
‘Is the ratio of the decision of the ECJ in “Shevill” workable?’
Choice of Law
In the original Commission proposal on Rome II of 22 July 2003 violation of privacy or rights relating to the personality was the subject of a special choice of law rule in Article 6(1) as follows:
‘1. The law applicable to a non-contractual obligation arising out of a violation of privacy or rights relating to the personality shall be the law of the forum where the application of the law designated by Article 3 would be contrary to the fundamental principles of the forum as regards freedom of expression and information.’
The general rule in Article 3 was that: ‘The law applicable to a non-contractual obligation shall be the law of the country in which the damage arises or is likely to arise’.
The Commission’s explanatory memorandum was quite lengthy on this issue (pp.16-18). It helpfully describes the diversity of positions in the laws of the Member States (the then 15) on this issue. It also points out that the Commission initially proposed, in its informal draft proposal of May 2002, that the ‘law of the victim’s habitual residence should be applied’. This was rejected because it is rather artificial in that the material in issue might never have been distributed in the victim’s habitual residence.
The Commission then referred to the Shevill decision and pointed out that the place of damage under Article 3 would in this context be any place where the publication is distributed and where the victim claims to have suffered injury to his reputation. In order to protect the press against laws from States outside the European Community that might violate human rights and constitutional norms protecting freedom of expression Article 6(1) was drafted to apply the law of the forum if the law of the place of damage is contrary to the public policy of the forum.
Funnily enough a very similar solution had been proposed by the UK Government to the UK Parliament in 1994 in the Private International Law (Miscellaneous Provisions) Bill.[11] I gave evidence to the Special Public Bill Committee in the House of Lords that heard the Bill in its early stages.[12] Under examination from Lord Wilberforce, the leading judge in the famous English decision on choice of law in tort called Boys v Chaplin,[13] I defended the inclusion of defamation actions within the general rule proposed by the Bill (essentially a place of harm rule based on where the most significant element or elements of the tort occurred ) on the ground that the fears of the press about the applicability of foreign defamation laws restricting their freedom of expression would be dealt with by the public policy exception in the Bill. I argued that our courts would regard Article 10 of the European Convention of Human Rights as creating a standard for freedom of expression that they would use as the basis for denying the application of foreign law clearly in violation of that Article on grounds of public policy.[14]
However the lobby by the press was sufficiently strong that the Government[15] decided to exclude defamation from the general rule and therefore the common law rule of double actionability, subject to any exceptions developed by the courts since Boys v Chaplin, should remain in force.
I very much felt déjà vu in the Council Working Group on Rome II as we came under more and more pressure from the media on the Commission’s defamation proposal. Many formulations were tried[16] but none could command anything close to a qualified majority in the Council until the option of removal from scope was canvassed. The Commission, seeing that exclusion from scope was the only practical way of getting a solution in the Council, proposed such a solution in its revised proposal for Rome II of 21 February 2006 in Article 1(2)(h). This proposal restricted the exclusion to violations of privacy and of personal rights ‘by the media’. However, the Council regarded this restriction as unprincipled and unworkable and therefore the exclusion from scope in the Council’s common position is ‘non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation’.
My own view is that the political realities are unlikely to change for the foreseeable future and that therefore it is highly unlikely that a choice of law rule could be agreed by a qmv in the Council that would cover non-contractual obligations in this area. I would discourage the European Parliament from trying to push for an early review of this issue. It would not be a good use of scarce resources in the Commission and time in the Council for private international law issues. I say this even though I have not changed my personal views since giving evidence before the House of Lords in January 1995.
[1] Case 21/76 [1976] ECR 1735.
[2] Case C-68/93 Shevill v Presse Alliance SA [1995] ECR I-415.
[3] See paras. 29 and 30. In this case, an article had been published in the French newspaper France-Soir, alleging Ms Shevill had been involved in money laundering linked to drug trafficking. This was alleged to have taken place whilst Ms Shevill was in the temporary employment of Chequepoint SARL, a French company operating bureaux de change in Paris, amongst other places. About 0.1% of the total print run was sold in England. See also Raymond Wegmann v. Elsevier Science Ltd [1999] I.L.Pr. 379 (French Cour de Cassation); Waterford Wedgwood Plc v. David Nagli Limited [1999] I.L.Pr. 9 at 19; Castellblanch SA v. Champagne Louis Roederer SA [2004] I.L.Pr. 41(French Cour de Cassation); Gerry Hunter v. Gerald Duckworth & Company Limited and Louis-Blom Cooper, [2000] I.L.Pr. 229 (Irish High Court R. v. Maritim Trade Mark (416 0294/00) [2003] I.L.Pr. 17 (Landgericht, Hamburg); Berezovsky v. Forbes Inc. and Another [1999] E.M.L.R. 278 (Non-Convention case).
[4] Para. 24. See also Briggs, (1995) Yearbook of European Law 487 at 488.
[5] Para. 39. It was said in Shevill that such a matter was to be determined by applicable law on the basis of being procedural in nature, as long as the effectiveness of the Convention was not impaired. The importance of this point in this particular case stemmed from the fact that in English law, publication of a defamatory statement is presumed harmful without proof of damage being required. See also Raiffeisen Zentral Bank Osterreich Ag v. Alexander Tranos [2001] I.L.Pr. 9 (QBD)(no loss suffered in a misrepresentation case until reliance leading to a concrete transaction) and Bus Berzelius Umwelt-Service AG v. Chemconserve BV, Reakt Ltd (C99/245HR) [2004] I.L.Pr. 9 (Hoge Raad).
[6] See Briggs, (1995) Yearbook of European Law 487 at 489.
[7] Shevill at 427.
[8] Ibid at 441.
[9] Supra at 489.
[10] See Lagarde, 1974 Revue Critique de droit international prive 700 at 704 as noted by Advocate General Darmon in Shevill at p.429 and for the views of the two Advocate Generals see the Shevill case at pp.429-434 and 442-449.
[11] See Proceedings of the Special Public Bill Committee, House of Lords, Session 1994-95 HL Paper 36.
[12] Ibid at pp.74-79 of Part I.
[13] [1971] AC 356.
[14] Supra at pp.75-76 of Part I.
[15] Ibid at pp.19-20 of Part II. The Lord Chancellor more elegantly put it like this: ‘Having considered the evidence, I took the view that the best course was to exclude altogether the defamation cases from this part of the Bill.’ Later he kindly acknowledged the public policy argument had some merit but that he felt that caution was the wisest course: ‘I agree that the public policy exception in Clause 13(3) of the Bill would have an effect here, but I have reached the conclusion that perhaps the wisest course is to except defamation altogether.’ Lord Chancellor Mackay is a brilliant man and naturally cautious. I read this words as indicating he was not convinced by the concerns of the press but that he did not think it prudent to fight them. After all the Special Public Bill Committee was to be used for consensual, technical law reform and yet the defamation issue had generated considerable press coverage opposing that aspect of the Bill.
[16] Including a formulation that would have come close to the country of origin rule that was originally part of the Commission’s proposal in the Services Directive. It has to be said that a country of origin approach commanded very little support in the Council and its Working Groups with the responsibility for Rome II.