Applying private international law in the information society is a touch tricky. Traditional PIL having relied on territorial links, applying it in an internet context may sometimes be testing. Article 5(3) of the European ‘Jurisdiction Regulation’ is a special jurisdictional rule which allows plaintiff to sue elsewhere than in the domicile of the defendant, for actions based on tort. In eDate advertising (aka Kylie Minogue), the European Court of Justice fine-tuned the Shevill criteria for application of Article 5(3) JR in an internet context, adding the ‘centre of (the victim’s) interests’ as a potential forum in the case of infringement of one’s personality rights. [see here]
In ‘G’, Case C-292/10, the Court was asked to provide input in the event of the defendant’s domicile being unknown (but with the defendant presumed to be an EU citisen), and the precise location of the server on which the website is stored, also unknown, although most probably in EU territory.
The Landgericht Regensburg asked no fewer than 11 questions of some complexity, with a degree of interdependence between them. The Court answered that Article 5(3) may certainly apply in such case, giving preference to legal certainty. However it expects due diligence on behalf of the national courts in making sure that a prima facie case of a link to the EU was established.
The ECJ failed subsequently to entertain the questions on the location of the harmful event given the uncertainty signalled above, for the relevant questions had been dropped by the referring court following the judgment in eDate Advertising. In my view, an answer to some of the now dropped questions on location of the harmful event (the locus delicti commissi) were certainly not nugatory, even after eDate Advertising. There is no Opinion of the Advocate General to assist.