Digital Rights and Jurisdiction: The European Approach to Online Defamation and IPRs Infringements

Hörnle (2009).

See ex multis: Johnson and Post (1996), p. 1367; Slane (2008), pp. 129–151; Geist (2001).

See on this topic: Svantesson (2004, 2012a, b).

On the interplay between the Internet and private international law, see Svantesson (2012a, b), Hörnle (2009) and Boele-Woelki and Kessedjan (1998).

Kohl (2017), p. 31. See also: Kohl (2007), Goldsmith and Wu (2006), De Miguel Asensio (2015), Hörnle (2008), Svantesson (2012a, b), Hörnle (2009), Boele-Woelki and Kessedjan (1998) and Wang (2010). The new boundaries of technologic innovation and optimization, like the deployment of cloud computing may complicate the determination of jurisdiction when disputes arise. See on topic Wang (2013).

Geist (2017), p. 26.

Themelis (2012) in relation to the extraterritorial application of EU competition law in respect to online jurisdiction.

Johnson and Post (1995–1996).

Goldsmith and Wu (2006) and De Miguel Asensio (2015).

See Hörnle (2009) on arbitration and the different forms of ODR along with the technologies currently being used or developed for dispute resolution. It is worth noting that ICANN has established ADR mechanisms concerning conflicts between trademark owners and domain name registrants. However, they are not binding on national courts and do not prevent the parties from submitting the dispute to a national court.

The UNCITRAL Model Law on Electronic Commerce has been adopted on 12 June 1996. It purports to enable and facilitate commerce conducted using electronic means by providing national legislators with a set of internationally acceptable rules aimed at removing legal obstacles and increasing legal predictability for electronic commerce. In particular, it is intended to overcome obstacles arising from statutory provisions that may not be varied contractually by providing equal treatment to paper-based and electronic information. Such equal treatment is essential for enabling the use of paperless communication, thus fostering efficiency in international trade.

The UN Convention has been adopted on 23 November 2005 with the view to facilitating the use of electronic communications in international trade by assuring that contracts concluded and other communications exchanged electronically are as valid and enforceable as their traditional paper-based equivalents.

Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (“Directive on electronic commerce”) OJ L 178, 17.7.2000, pp. 1–16.

Wang (2008, 2010) on cross-border disputes in electronic commercial contracts under the EU, US and China approach.

Regulation (EU) No. 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), OJ L 351/1.

Council Regulation (EC) No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, OJ L12/1. The Regulation takes its name from having replaced, as from 1st March 2002, the Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters.

Article 6(1) of Brussels I-bis Regulation. According to the case-law of the CJEU, the expression “is not domiciled in a Member State”, used in that provision, means that application of the national rules rather than the uniform rules of jurisdiction is possible only if the court seized of the case holds firm evidence that the defendant is domiciled outside the EU (Case C-327/10 Lindner (2011), ECLI:EU:C:2011:745, para. 42).

Article 25 of Brussels I-bis Regulation. See ex multis on prorogation in the Brussels I-bis Regulation: Queirolo (2013/2014).

Article 62 of Brussels I-bis provides that the Member State of the forum shall apply its domestic law (lex fori) to determine whether a party is domiciled in its own jurisdiction. Should the court of that State decide that the defendant is domiciled in another Member State, the law of the latter would apply.

It is worth noting that for the purposes of common law (applicable in Ireland, UK and Cyprus) the “statutory seat” has to be interpreted as the registered office or, failing that, as the place of incorporation or, failing that, as the place under the law of which the formation took place (Article 63(2)).

See, inter alia, case C-189/08 Zuid-Chemie [2009] ECLI:EU:C:2009:475, para. 24.

See case C-189/87 Athanasios Kalfelis [1988] ECLI:EU:C:1988:459 and Mankowski (2012), p. 271.

This outcome is strengthened by the persistent lack of a uniform conflict-of-laws rule at European level as to violations of privacy and personality rights. Indeed, the latter are excluded from the material scope of Regulation (EC) No. 864/2007 (Rome II Regulation) on the law applicable to non-contractual obligations. Therefore, as to the determination of the applicable law to such a tort, the national Member States PIL rules still apply. See on the matter: Feraci (2009) and Nagy (2012).

Joined cases C-509/09 and C-161/10 eDate Advertising and Olivier Martinez [2011] EU:C:2011:685. For some critical remarks see: Reymond (2011), Bollée and Haftel (2012), Feraci (2012) and Francq (2012).

See, on the concept of habitual residence in EU PIL, Mellone (2010). From a domestic PIL perspective, it is worth noting that a similar approach, as to conflict-of-laws, has been adopted by the recent Law of the People’s Republic of China on the Application of Law for Foreign-Related Civil Relations (adopted at the 17th session of the Standing Committee of the 11th National People’s Congress on 28 October 2010), which has entered into force on 1 April 2011. The law in fact provides for a technology-specific provision on Internet defamation, stating: “Where such personal rights as the right of name, portrait, reputation and privacy are infringed upon via network or by other means, the laws at the habitual residence of the infringed shall apply” (Article 46 of the Law).

Ibid., para. 50.

Ibid., para. 58: “That situation occurs in the State where the potential for an infringement of the right to one’s own reputation or the right to privacy and the value inherent in the dissemination of certain information or a particular opinion, as the case may be, may be visualised or are more evident. That is the State where the holder of personality rights will suffer the most extensive and serious harm. Furthermore, and this is undoubtedly important from the point of view of legal certainty, it is the territory where the media outlet could have foreseen that that harm might have occurred and, accordingly, that there was the risk of being sued there”.

Ibid., para. 59.

Ibid., para. 60.

Ibid., para. 65: “ … the fact that the information may be distributed on a website with a top-level domain name which is different from that of the Member State where the publisher is established, thereby demonstrating the existence of a particular territorial area in which the information is likely to be followed with particular interest. Likewise, the language of a website helps to delimit the sphere of influence of the information published. Any advertising which may be on the website may also indicate the territorial area where the information is intended to be read. The section of the website in which the information is published is also relevant for the purposes of achieving an impact in a particular territory. One example might be an online newspaper in which the news sections are divided by State. The publication of information under the heading ‘Germany’ will be an indication that news made available in that section has a particularly significant impact in that country. The keywords supplied to search engines to identify the media outlet’s site are also capable of providing clues as to the place in which the information is objectively relevant. Finally, and without intending this to be an exhaustive list, the website access log, despite its lack of reliability, may be a purely illustrative source for the purposes of confirming whether or not certain information has had an impact in a particular territory.”

See Reymond (2011); Feraci (2012), p. 467; Bollée and Haftel (2012), p. 1285. The same objection had been raised with regard to the interpretation of another ground of jurisdiction of Brussels I Regulation relevant with regard to contractual liability arising out online consumer contracts. See Bogdan (2010), p. 565.

C-194/16 Bolagsupplysningen OÜ, Ingrid Ilsjan v Svensk Handel AB (BOÜ/Ilsjan) [2017] ECLI:EU:C:2017:766. See on it the critical remarks of Bach (2017).

Ibid., paras. 45–49.

Ibid., para. 48.

C-523/10 Wintersteiger CJEU [2012] EU:C:2012:220. See on the judgment the comments of Birgit (2012) and Azzi (2012a, b).

See, in that sense: joined cases C-236/08 to C-238/08 Google France and Google [2010] ECLI:EU:C:2010:159 and C-324/09 L’Oréal and Others [2011] ECLI:EU:C:2011:474.

Council Regulation (EC) No. 207/2009 of 26 February 2009 on the Community trademark (EC), OJ L 78, 24.3.2009, which has amended and consolidated the Council Regulation (EC) No. 40/94 of 20 December 1993, OJ L 11, 14.1.1994, p. 1. According to Articles 95 and 96 of the Trademark Regulation, within each Member State the most important proceedings concerning Community trademarks are assigned to a limited number of its courts, designated as Community trademark courts (CTM courts). The allocation of international jurisdiction between the CTM courts of the Member State is governed by Articles 97 and 98 of the Trademark Regulation.

First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trademarks, OJ, L 40/1.

See Grünberger (2015).

Ibid., para. 46.

Ibid., para. 20.

See also in that sense the opinion of Advocate General Jääskinen, delivered on 13 June 2013 in Pinckney case cit., para. 68. For a criticism of such connection: Lopez Tarruella (2012), p. 329.

In that sense: Rosati (2014a, b), p. 19.

Neumann (2011), p. 583.

Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs, OJ L/16 (“Computer Programs Directive”); Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property, OJ L 376/28 (“Rental and Lending Right Directive”); Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission, OJ L 248/15 (“Satellite and Cable Directive”); Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights, OJ L 372/12 (“Term Directive”) as amended by Directive 2011/77/EU; Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases, OJ L 77/20 (“Database Directive”); Directive 2001/29/EC (“Information Society (InfoSoc) Directive”); Directive 2001/84/EC of the European Parliament and of the Council of 27 September 2001 on the resale right for the benefit of the author of an original work of art, OJ L 272/32 (“Resale Right Directive”).

See Kur and Dreier (2013), p. 245 ff.; Rosati (2013).

Ibid., paras. 64–66.

See Cachard (2010), p. 19.

In favour to the extension of the “target direction” approach to the interpretation of Article 5(3) of Brussels I Regulation as to online torts, see Marino (2012), p. 890.

Article 15 (1) of the Brussels I Regulation states: “1. In matters relating to a contract concluded by a person, the consumer, for a purpose which can be regarded as being outside his trade or profession, jurisdiction shall be determined by this Section, without prejudice to Article 4 and point 5 of Article 5, if: … (c) in all other cases, the contract has been concluded with a person who pursues commercial or professional activities in the Member State of the consumer’s domicile or, by any means, directs such activities to that Member State or to several States including that Member State, and the contract falls within the scope of such activities”.

Ibid., para. 95.

Ibid., para. 95. However, some factors mentioned by the Court have appeared problematic: see Bogdan (2010), p. 567.

For critical remarks on the excessive version of accessibility criterion see Kohl (2017), pp. 38–49.

Ibid., para. 34.

Ibid., para. 38.

Ibid., para. 46.

See recital 15 of the Brussels I-bis Regulation and recital 11 of the Brussels I Regulation.

Depreeuw and Hubin (2014), p. 764.

Ibid.