Close, but no sigar. The CJEU on libel, internet and centre of interests in Bolagsupplysningen.

The Court held some weeks ago in C-194/16 Bolagsupplysningen OÜ on the application of the Shevill rule, as supplemented by e-Date advertising, to infringements of a company’s personality rights over the internet. I held back reporting on the case for exam reasons – yep, some of the places I teach at already have exams.

Judgment was issued in Grand Chamber. There can be no clearer indication of the relevance the Court attaches to the question. The CJEU introduces in my view further complication in the Article 7(2) rule (jurisdiction for torts) by requiring the court seized carry out analysis of ‘main economic activity’ with those same courts being told not to get carried away however in that analysis. The judgment does not I believe offer a solid conclusion for the issues of removal and rectification.

An Estonian company operating in Sweden was blacklisted for its allegedly questionable business practices on the website of a Swedish employers’ federation. The website attracted a number of hostile comments from its readers. The Estonian company brought an action before the Estonian courts against the Swedish federation. It complained that the published information has negatively affected its honour, reputation and good name. It asked the Estonian courts to order that the Swedish federation rectify the information and remove the comments from its website. It also requested damages for harm allegedly suffered as a result of the information and comments having been published online.

Can the Estonian courts assert jurisdiction to hear this action on the basis of the claimant’s ‘centre of interests’, a special ground of jurisdiction that the Court previously applied to natural persons, but so far not legal persons? If they can, then second, how should the centre of interests of a legal person be determined? Third, if the jurisdiction of the Estonian courts were to be limited to situations in which the damage occurred in Estonia, the referring court wonders whether it can order the Swedish federation to rectify and remove the information at issue.

I reviewed Bobek AG’s Opinion here – let me recap core issues: Bobek AG suggested there are two novelties in the questions referred: a legal person (not a natural one) is primarily asking for rectification and removal of information made accessible on the internet (and only secondarily for damages for the alleged harm to its reputation). This factual setting, the AG suggests, leads to the question of how far the seemingly quite generous rules on international jurisdiction previously established in Shevill with regard to libel by printed media, and then further extended in eDate to the harm caused to the reputation of a natural person by information published on the internet, may be in need of an update.

At the real root of course of the generous rules on jurisdiction for tort, lies the Court’s judgment in Bier. Bobek AG joined Szpunar AG in severely questioning the wisdom of the Bier rule (both locus delicti commissi and locus damni lead to jurisdiction) in the age of internet publications. Not unexpectedly, the Court of Justice further refined Bier, but did not overrule it.

It held first of all that legal persons like natural persons can claim for damages in their centre of interests (at 38): the split in Bier was introduced for reasons of judicial suitability (‘sound administration of justice’), not personal interest of the plaintiff hence the qualification of that plaintiff has no bearing on the rule.

Following e-Date, the national court therefore needs to determine a centre of interests for a legal person just as it would for a natural person. At 41: for legal persons, this centre of interests ‘must reflect the place where its commercial reputation is most firmly established and must, therefore, be determined by reference to the place where it carries out the main part of its economic activities. While the centre of interests of a legal person may coincide with the place of its registered office when it carries out all or the main part of its activities in the Member State in which that office is situated and the reputation that it enjoys there is consequently greater than in any other Member State, the location of that office is, not, however, in itself, a conclusive criterion for the purposes of such an analysis.’ As one knows from the definition of ‘domicile’ under the Brussels I Regulation, leading to positive jurisdictional conflicts (it is perfectly possible for more than one Member State considering itself the domicile of a corporation), it is far from self-evident to determine where a company’s ‘main’ economic activities are located.

At 43 the Grand Chamber reminds the national courts that their role in the application of the Brussels I Recast is limited to the jurisdictional stage: they must not go into the merits (yet), hence if it is ‘not clear from the evidence that the court must consider at the stage when it assesses whether it has jurisdiction that the economic activity of the relevant legal person is carried out mainly in a certain Member State’, the Court must conclude that the Article 7(2) locus damni for the full damage is not available to that claimant.

 

The Court then distinguishes actions for rectification of false information and removal of comments: there is no jurisdiction before the courts of each Member State in which the information published on the internet is or was accessible. The Court follows Bobek AG’s Opinion on this point (although the AG also employed it to support his view on withdrawal of Bier altogether) at 48: ‘in the light of the ubiquitous nature of the information and content placed online on a website and the fact that the scope of their distribution is, in principle, universal …an application for the rectification of the former and the removal of the latter is a single and indivisible application and can, consequently, only be made before a court with jurisdiction to rule on the entirety of an application for compensation for damage [the Court refers to Shevill and e-Date] and not before a court that does not have jurisdiction to do so.’

On this latter point, the judgment is bound to create a need for further clarification: Shevill and e-Date confirm full jurisdiction for the courts of the domicile of the defendant and of the locus delicti commissi. These do not necessarily coincide but do raise the same difficulty of claims for rectification and removal by nature being single and indivisible. With more than one court having such full jurisdiction I do not see a solution in the Court’s approach.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.2.

 

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  1. #1 by Cedric VLH on 15/11/2017 - 9:49 AM

    Geert, it is perhaps useful to point out that the A-G (at 125-126) suggested to give every partial competent locus damni forum the power to grant injunctions for rectification and removal. Both the AG and the ECJ refer to the unitary character of such injunctions but draw opposite conclusions from it.
    I am therefore not sure what you mean by “The Court follows Bobek AG’s Opinion on this point” as the ECJ clearly deviates from its A-G.

    • #2 by Geert van Calster on 15/11/2017 - 10:18 AM

      Thank you very much indeed, Cedric: you are right, as am I (of course;) : but I should clarify. The AG used existence of full injunctive jurisdiction for the partially competent locus damni forum, used it ad absurdum [a turn of phrase I hae now added to my review of the AG Opinion): he suggested that he saw no justification in law or in technology to limit that injunctive power, and that that in turn should support his limiting view on locus damni: only the place of the centre of interests. In other words yes, the AG in his review of injunctive jurisdiction suggested to give every partially competent forum such jurisdiction, only to point out the absurdity of that idea: not a proposition he actually supported. In that respect the AG and the CJEU have the same approach. I could have been much clearer on that point.
      Now, am I right in not reading in the judgment a rejection by the CJEU of the Shevill ‘mosaic’ approach? (contrary to what the AG suggested): the Court emphasises full jurisdiction for the courts of the place of centre of interests, however leaves partial jurisdiction intact (by not talking about it), contrary to the AG?
      Geert.

      • #3 by Cedric VLH on 15/11/2017 - 10:53 AM

        Geert, thanks for the reply.

        I read the Opinion differently (but I see equally valid arguments for your reading of it).
        The A-G points out that it would be absurd to give a locus damni court the power to grant only partial injunctions (making the analogy with the leaking waste water tank). What he means is that an injunction is an all-or-nothing exercise: either the court has the power to grant an injunction or it has no such power at all (there is no inbetween). Cutting the jurisdiction for injunctions in slices is absurd.
        At 128 he therefore concludes: “Such rather absurd considerations clearly point to just one possible answer: provided that a court of a Member State is competent to hear an extra-contractual/tortious action for damages, it should also be entitled to rule on the issue of all the remedies that are available under national law.” In other words: every locus damni court should have the ability to grant an injunction (with respect to the whole infringement). He then admits further in 128 that this could lead to 28 conflicting injunctions.
        I see where your interpretation comes from because in 129 he then concludes that only courts with full jurisdiction should have injunctive power but in my view this relates more to his main proposal to get rid off the mosaic rule altogether and does not affect the idea that, if the ECJ decides to let the mosaic rule survive (as it has done), the inevitable consequence is that every partial locus damni court should get full injunctive power.
        Let’s agree to disagree?

        As to your question: yes, absolutely. Shevill’s mosaic approach continues. The A-G’s suggestion to abolish it was not followed. Basically, the ECJ has just added that legal persons now benefit from the generous forum actoris of the centre of interests. All the rest remains as it was in eDate.

  2. #4 by Geert van Calster on 15/11/2017 - 11:30 AM

    🙂 : Ah no, I would rather concede that yours is likely to be the more correct approach. The AG’s Opinion is clearly not straightforward on that point.
    Thank you for confirming my reading re the Mozaic.

    • #5 by Cedric VLH on 15/11/2017 - 6:23 PM

      I’m glad my approach makes sense as I just submitted a note on the case to a law journal and I didn’t feel like having to adapt it already 🙂
      And my pleasure!

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