Conflict of Jurisdiction and Cyber-Torts: The Problematic 'Adaptation' of the Shevill Case-Law by the Court of Justice of the EU

Abstract

According to Article 5(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, persons domiciled in a Member State are, in principle, to be sued before the courts of that State. However, in matters relating to tort, delict or quasi-delict, a person may also be sued in another Member State before the courts for the place where the harmful event occurred or may occur. In joined Cases C-509/09 and C-161/10, the Court of Justice of the EU was asked to clarify the extent to which those principles also apply in the case of infringements of personality rights committed by means of content placed online on an internet website. In its judgment issued on 25 October 2011, the Court distinguished the placing online of content on an internet website from the regional distribution of news items before holding for the first time that Article 5(3) of Regulation No 44/2001 must be interpreted as offering a new 'option' to any plaintiff alleging an infringement of his personality rights by means of a website: In addition of the option of bringing an action for liability, in respect of all the damage caused, either before the courts of the Member State in which the publisher of that content is established, he may also bring an action for liability before the court of the place where the victim has his centre of interests, which has also jurisdiction in respect of all damage caused within the territory of the EU. This note (in French) offers a critical assessment of the Court’s judgment. It first argues that contrary to what the Court states, its judgment neutralizes rather than merely 'adapts' its previous case law dealing with transnational cases of libel by a newspaper article. Secondly, it defends the view that this judgment can be hardly reconciled with the well-established principle whereby the rules of jurisdiction must be highly predictable and founded on the principle that jurisdiction is generally based on the defendant’s domicile rather than the plaintiff’s domicile.

Note: Downloadable document is in French.

Keywords: conflicts of jurisdiction, personality rights, online content, European Union