872019 epc-brussels-I-and-rome-II-fact-sheet-april-2010

httpslidepdfcomreaderfullepc-brussels-i-and-rome-ii-fact-sheet-april-2010 11

Brussels I and Rome IICross-border cases of defamation and privacy - Which Court takes thecase Which law applies

For further information contactAngela Mills WadeEPC Executive Director

Tel +44 1865 310 732angelamillswadeuknet

or Heidi Lambert

Tel +44 1245 476 265heidilamberthlcltddemoncoukAlternatively visitwwwepceuropeorg

The legislationBoth Brussels I and Rome II are EU Regulations dealing with International Private Law They set rules to determinewhich Court should hear a case (Brussels I) and whichcountryrsquos Law should be applied (Rome II) when there is a

cross-border conflict The international elements inmatters of private law cover such matters as family law andlaw of contract including in the case of Brussels I casesbrought against the media for defamation and violations ofprivacy At present Rome II does not apply to themedia whereas Brussels I does

However because in all cross-border cases of defamationand privacy violations the jurisdiction under Brussels I isthe first matter to be settled the absence of a rule todetermine thereafter which countryrsquos law should apply is anissue for media companies when defending cases ofdefamation and violations of privacy in countries outsidethe place of editorial control because under Brussels I

media companies find themselves defending casesaccording to foreign laws often in multiple jurisdictions(see Case ECJ C-6893 Shevill and Others [1995] ECRI-415 paragraph 19 where the claimants were establishedin England France and Belgium and the alleged libel waspublished in a French newspaper with a small circulation inEngland The ECJ held that in the case of a libel in the press - the place where the damage occurs is the place wherethe publication is distributed when the victim is known inthat place (paragraph 29) and- the place of the event giving rise to the damage takesplace is the country where the newspaper was produced(paragraph 24)

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The ECJ also held in Shevill that as regards theassessment by the English court applying Article 5(3) ofBrussels I of whether damage actually occurred or notthe national court should apply national rules provided thatthe result did not impair the effectiveness of the generalobjectives of the RegulationFurthermore the ECJ held that where a libel causesdamage in several different EU Member States the victimmay sue in any of the jurisdictions where the libel ispublished in respect of the damage suffered in thatjurisdiction

Brussels I is under review at the momentThe European Commission adopted on the 21 April 2009 aReport and a Green Paper on the review of Council

Regulation (EC) No 442001 launching a consultationamong interested parties on how to improve the operationof the Regulation The new Commissioner in chargeVivane Reding spoke on the subject in March 2010httpeuropaeurapidpressReleasesActiondoreference=SPEECH1092ampformat=HTMLampaged=0amplanguage=ENampguiLanguage=en Meanwhile Parliamentrsquos RapporteurMEP Zwiefa as well as MEP Diana Wallis who isRapporteur for Rome II believe that even though BrusselsI is grounded in International Private Law now expressdoubt as to whether the Brussels I instrument should haveever dealt with the media at all questioning in particularwhether the intention of regulation should ever have beento mediate this sort of conflict between freedom of press

and rights of individual MEP Zwiefka is now suggestingthat an entirely separate instrument should be developedto specifically deal with this (combining Brussels andRome) In the light of the current situation (following

jurisprudence from the ECJ forum shopping etc) he feelsthe best solution would be forum non conveniens

EPC ConcernsMedia companies need the legal certainty that when they

publish ndash whether in print or online the editorial contentcomplies with the law and any self-regulatory codes whichapply where the final editorial decisions are taken As moreand more content is made available outside the country offirst publication this legal certainty is ever more important inorder to uphold the freedom of expressionThe current Brussels I regulation creates the very oppositendash uncertainty and disproportionate risk of law suits inmultiple jurisdictionsAlthough there are no specific references in the currentconsultation to the article which affects the media - 5(3) wemust take this opportunity to call for amendments toBrussels I to remove the uncertainty which 5(3) and Shevill have together created A separate instrument as suggestedby MEP Zwiefa may be acceptableThe most proportionate approach would be to remove themedia from the scope of article 5(3) which together withShevill gives rise to legal uncertainty and the dangers ofboth forum shopping and multiple actions Instead we areasking that the media should be subject to the general rulein Article 21 which allows plaintiffs to bring cases in theirhome country for cross border claims of defamation andprivacy violations

Rome II has yet to be reviewed by the Commission butaspects concerning the media are under special attentionbecause of the review of Brussels I and following thepublication of the Study to look at elements of the law andits application with regard to defamation privacy and

freedom of expression Diana Wallis MEP organised ahearing in the EP in January 2010 to discuss aspects of theStudy

Useful Linksbull httpeuropaeulegislation_summariesjustice_free

dom_securityjudicial_cooperation_in_civil_mattersl33054_enhtm

bull Final Version of Study JLSC4200503 onBrussels I from university of Heidelberg

bull Rome II Regulation (EC) No 8642007 defines thelaw applicable to non-contractual obligations insituations involving a conflict of laws but excludesthe media

bull httpwwweuroparleuropaeuactivitiescommitteeshearingsComdolanguage=ENampbody=JURI bull EPC Positions Jurisdiction and applicable law