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Online publishers: EU’s top court rules on jurisdiction in defamation claims

11/11/2011

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United Kingdom

Online publishers: EU’s top court rules on jurisdiction in defamation claims

This alert was featured in Tech Bytes, our technology law newsletter.

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The Court of Justice of the European Union has clarified the rules that determine when an online publisher can be sued for defamation in an EU Member State other than the publisher’s home state. 

Under EU rules on jurisdiction, a plaintiff can bring a claim for defamation in “the courts for the place where the harmful event occurred”.  Before this latest ruling from the Court of Justice, it was not clear how this rule applied to defamatory material published online. For example, if material was accessible on the web in a particular Member State, would this be enough to give the courts in that Member State jurisdiction? 

The Court of Justice has now said that an online publisher can be sued for defamation in the Member State where the alleged victim “has his centre of interests”.  Usually this will be the alleged victim’s country of residence, but it could be any Member State with which the victim has close links (such as professional ties). If the victim brings a claim on this basis, the court will adjudicate on all damage caused to the alleged victim across the EU. In other words, the victim brings a single, centralised claim.

Alternatively, the publisher can be sued in each Member State in which the defamatory online content was accessible.  In this case, each national court only has jurisdiction to consider damage caused in that particular Member State.

The prospect of bringing multiple claims in multiple Member States is likely to prove as unattractive to claimants as defending such claims would be to publishers.  However, now that the position has been confirmed by the Court of Justice, claimants will undoubtedly take advantage of being able to bring a single claim in their home Member State. 

A crumb of comfort for publishers is that the Court of Justice confirmed that under the Ecommerce Directive, online service providers will not be subject to any requirements stricter than those applicable in their home Member State.  The Ecommerce Directive established a “country-of-origin rule”, so that “information society service providers” are regulated by and must comply with the laws applicable in their home Member State.  The Directive also established the freedom of information society service providers to provide their services to other Member States unless a specific “public interest” exception applies.  The Court of Justice has now made it clear that these principles apply not only to public laws and schemes of regulation but also to private laws, such as privacy rights and defamation.  The effect of this is that even if an online service provider finds itself defending proceedings in another Member State, it will not be held to laws, standards or requirements any stricter than those of its home Member State.

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