Infringement of personal rights PhD Judge Diana Ungureanu NIM trainer 1
I. Jurisdiction Regulation 1215/2012- scope of application - Ratione temporis, personae, materiae Criteria of jurisdiction: art.7 (2) in matters relating to tort, delict or quasi- delict, in the courts for the place where the harmful event occurred or may occur; - The published newspaper - The online article 2
I.1.Newspaper. C- 68/93,Fiona Shevill 1. do the words 'the place where the harmful event occurred' mean the place where: a) the newspaper was printed and put into circulation; or b) the newspaper was read by particular individuals; or c) the plaintiff has a significant reputation? 2. is 'the harmful event' dependent upon there being readers who knew the plaintiff and understood those words to refer to him? 3. If and in so far as harm is suffered in more than one country (because copies of the newspaper were distributed in at least one MS other than the MS where it was printed and put into circulation), does a separate harmful event or harmful events take place in each MS where the newspaper was distributed, in respect of which such MS has separate jurisdiction under Article 5(3), and if so, how harmful must the event be, or what proportion of the total harm must it represent? 3
Case 68/93,Fiona Shevill the victim of a libel by a newspaper article distributed in several MS may bring an action for damages against the publisher either before the courts of the MS of the place where the publisher of the defamatory publication is established, which have jurisdiction to award damages for all the harm caused by the defamation, or before the courts of each MS in which the publication was distributed and where the victim claims to have suffered injury to his reputation, which have jurisdiction to rule solely in respect of the harm caused in the State of the court seised. 4
Case 68/93,Fiona Shevill The place of the event giving rise to it (C-21/76, Mines de Potasse d' Alsace)-can only be the place where the publisher of the newspaper in question is established However, that forum will generally coincide with art.2 (1); the plaintiff must have the option to bring proceedings also in the place where the damage occurred The place where the damage occurred is the place where the event giving rise to the damage, entailing tortious, delictual or quasi-delictual liability, produced its harmful effects upon the victim- the place where the newspaper was distributed territorially the best placed to assess the libel committed in that State disadvantages to having different courts ruling on various aspects of the same dispute The plaintiff has the option 5
I.2.Internet. C – 509/09, Martinez Immaterial ways of communication raise the problem of the potential ubicuity of the place “where the harmful event occurs”; the internet reduces the usefulness of the criterion relating to distribution The option for all damage- domicile of the content publisher or center of interests of the plaintiff Separate actions- before the courts of each MS in the territory of which content placed online is or has been accessible-only in respect of the damage caused in the territory of the MS of the court seised. 6
I.3.What about injunctions? Art.2 alin.1 lit.a: For the purposes of Chapter III, ‘judgment’ includes provisional, including protective, measures ordered by a court or tribunal which by virtue of this Regulation has jurisdiction as to the substance of the matter. It does not include a provisional, including protective, measure which is ordered by such a court or tribunal without the defendant being summoned to appear, unless the judgment containing the measure is served on the defendant prior to enforcement; Art.35- Provisional, including protective, measures Application may be made to the courts of a MS for such provisional, including protective, measures as may be available under the law of that MS, even if the courts of another MS have jurisdiction as to the substance of the matter. 7
The enforcement Art.42: For the purposes of enforcement in a MSt of a judgment given in another MS ordering a provisional, including a protective, measure, the applicant shall provide the competent enforcement authority with: (a) a copy of the judgment which satisfies the conditions necessary to establish its authenticity; (b) the certificate issued pursuant to Article 53, containing a description of the measure and certifying that: the court has jurisdiction as to the substance of the matter; (i) the judgment is enforceable in the MS of origin; and (ii) (c) where the measure was ordered without the defendant being summoned to appear, proof of service of the judgment. 8
II. Applicable law Art.1 alin.2 lit.g) Reg.864/2007 (Rome II) shall be excluded from the scope of Regulation: non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation. International private law of the lex fori 9
III.Art.8-Art.10 ECHR The criteria- Case Axel Springer v. Germany Case Societe Prisma Presse c. France Von Hannover v. Germany (no.1, no. 2) Verlagsgruppe News v. Austria Hachette Filipacchi Associe (Ici Paris) c. France Mosley c. UK 10
Criteria relevant for the balancing exercise Contribution to a debate of general interest How well known is the person concerned and what is the subject of the report? Prior conduct of the person concerned Method of obtaining the information and its veracity Content, form and consequences of the publication Severity of the sanction imposed 11
Criteria General interest- not only where the publication concerned political issues or crimes (ex: marital difficluties of a president- no, Standard Verlag; the financial difficulties of a singer- no, Hachette Filipachi) Well known- private individuals vs. persons acting in a public context Politicians in the exercise of their officials functions- facts capable of contributing to a debate, not the sole aim of satisfying the curiosity 12
CRITERIA Prior conduct- The mere fact of having cooperated with the press on previous occasions cannot serve as an argument for depriving of all the protection Method of obtaining- acting in good faith, on an accurate factual basis, reliable, etichs of journalism Content etc.- the way of reporting, the dissemination etc. 13
IV. Recognition. Enforcement Art.36- recognition without any special proceedings Art.39- any declaration of enforceability required Art.45-grounds of refusal-public policy- ordre public (the constitutional right to freedom of expression?) 14
“If we don't believe in freedom of expression for people we despise, we don't believe in it at all.” ― Noam Chomsky What is freedom of expression? Without the freedom to offend, it ceases to exist. Salman Rushdie THAT MEANS YOU ’RE FREE TO SAY: “LUNCH BREAK!” dianaungureanu2004@yahoo.com 15
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