Full case report
eDate Advertising GmbH v X and Olivier Martinez and Robert Martinez v MGN Limited
Reference C-509/09 and C-161/10
Judge Judgment of the Grand Chamber
Date of Judgment 25 Oct 2011
ECJ- conflicts of law- personality rights – online publication- jurisdiction in which to sue- 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 (OJ 2001 L 12) – Article 3(1) and (2) of 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 2000, L178, p1)
Two joint appeals were considered by the Grand Chamber of the ECJ. In both cases the claimants alleged that their personality rights had been infringed as a result of online publications on websites that were based in different Member States to those in which the claimants lived. In eDate Advertising, X, a German national and resident, had been convicted of murdering a well-known actor in 1993. He was released on parole in 2008. He complained that a website publication by eDate Advertising, based in Austria which reported his full name, stated that he had been convicted of the murder, and highlighted the fact he was currently appealing infringed his personality rights. In Martinez the French actor Olivier Martinez complined that there had been an infringement of the right to his image by an article entitled “Kylie Minogue back with Olivier Martinez”, published on the UK based Sunday Mirror website (www.sundaymirror.co.uk). Both domestic courts faced arguments from the defendants that they could not make orders restricting publication outside their jurisdictions.
Whether, given that the publications complained of were made on a website based in a different Member State to the one in which the claimant lived, the domestic court has jurisdiction to try the image right claims in another member state from where the website was hosted and, in particular, how Article 5(3) of Regulation 44/2001 on jurisdiction and recognition and enforcement of judgments in civil and commercial matters (the “Regulation”) was to be interpreted in this context, and the effect of Articles 3(1) and (2) of Directive 2000/31/EC (Directive on electronic commerce). As regards the latter, whether Art 3(2) of the Directive established a choice of law rule providing for the application of the law of the service provider (publisher).
(1) In the event of an alleged infringement of personality rights by means of content placed online on an internet website, the person who considers that his rights have been infringed has 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 or before the courts of the Member State in which the centre of his interests is based. That person may also, instead of an action for liability in respect of all the damage caused, bring his action before the courts of each Member State in the territory of which content placed online is or has been accessible. Those courts have jurisdiction only in respect of the damage caused in the territory of the Member State of the court seised.
(2) Article 3 of 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’), must be interpreted as not requiring transposition in the form of a specific conflict-of-laws rule. Nevertheless, in relation to the coordinated field, Member States must ensure that, subject to the derogations authorised in accordance with the conditions set out in Article 3(4) of Directive 2000/31, the provider of an electronic commerce service is not made subject to stricter requirements than those provided for by the substantive law applicable in the Member State in which that service provider is established.
A decision which addresses the issues first explored in the context of defamatory publications in the Fiona Shevill case (Shevill v Press Alliance SA C-68/93  2 AC 18) but in the internet age and in connection with image or personality rights, an area of law in which most EU jurisdictions appear to lag behind North America. The decision appears to be a wide interpretation allowing various options to those aiming to protect against infringement of their image right. The bottom line for UK online publishers will be that courts in other member states will have jurisdiction over the totality of damage suffered and a reminder that material published online may open that publisher to legal challenge outside its core markets.