Posts Tagged https://www.bailii.org/ew/cases/EWHC/QB/2019/2506.html
BVC v EWF. The High Court on personality rights, internet and centre of interests in echoes of Bolagsupplysningen and e-Date. Suggests court with full jurisdiction is required for orders restraining further publication.
In BVC v EWF  EWHC 2506 (QB) claimant applied for summary judgment in a claim for misuse of private information and harassment. The privacy claim arises from internet publication, on a website created by the defendant, of his account of his relationship with claimant. The harassment claim arises from a series of email communications from the defendant to claimant over a period of some two years, and from publication of the website itself.
An ex parte injunction had been granted earlier. The Defendant was restrained from contacting or harassing claimant, from publishing the website or any of its contents to the world at large, and from publishing any of the information set out in a confidential schedule, or any information which was liable to or might identify the claimant as a party to the proceedings or as the subject of the confidential information
In current proceedings defendant (a UK national) submits he is domiciled in Switserland. This triggers the Lugano Convention.
Parkes J clearly had to consider Article 5(3) Lugano’s special jurisdictional rule for tort (the BIa equivalent of course is now Article 7(2), hence also applying e-Date and Bolagsupplysningen. Steyn DJ had earlier rejected defendant’s arguments. At 33: ‘She held, in short, that the Claimant had a good arguable case that this jurisdiction was the state in which he had the centre of his interests, and that in any event a real and substantial tort (namely misuse of private information) had been committed within the jurisdiction. She also ordered that the steps already taken to bring the Claim Form and orders of 27 June and 4 July 2018 to the Defendant’s attention (namely, service by email) constituted good service on him, notwithstanding that he claimed he was domiciled in Switzerland at the date of receipt of the documents, not (as had been believed) in this jurisdiction.’
Defendant (praised nb by Parkes J for his ‘brief but enlightening written submissions’) however continues to challenge the jurisdiction, jumping at the chance to bring it up again when claimant referred to his centre of interests in his PoC (Particulars of Claim), and employing the distinction which the CPR makes between challenges to existence and exercise of jurisdiction (notwithstanding authority (see at 39) that despite the distinction claims viz the two need to be brought concurrently).
He essentially (at 43) posits the court reconsider
‘whether Article 7(2) RJR is ‘to be interpreted as meaning that a natural person who alleges that his personality rights have been infringed by the publication of information concerning him on the internet may have his centre of interests in a Member of State where he is not habitually resident, where he has no ongoing professional connections or employment, no home, no income and no immediate family’. In his letter to the court of 18 June 2019, the Defendant puts it this way: ‘… with no permission to appeal the judgment of Karen Steyn QC, if the court continues to accept the Claimant’s centre of interests is in England and Wales despite very clear evidence to the contrary then it is necessary to refer the question of interpretation to the ECJ pursuant to Article 267 of the TFEU’.
At 44 Parkes J dismisses the suggestion of preliminary review to Luxembourg. That route is ‘not designed to provide a route of appeal against judicial evaluation of evidence of fact.’ In conclusion, re-opening of the discussion on jurisdiction is rejected, referring finally to Lord Green in Kaefer:”it would not be right to adjourn the jurisdiction dispute to the full trial on the merits since this would defeat the purpose of jurisdiction being determined early and definitively to create legal certainty and to avoid the risk that the parties devote time and cost to preparing and fighting the merits only to be told that the court lacked jurisdiction“.
Arguments on submission to the jurisdiction where not entertained: whether service of a defence, and the making of an application to strike out qualify as ‘submission’ becomes otiose when that jurisdiction has already been unsuccessfully challenged.
Then follows extensive discussion of the factual substance of the matter, which is less relevant for the purposes of this blog. Hence fast forward to 150 ff where the issue of jurisdiction to issue an injunction prohibiting re-publication of the material is discussed (in case: re-offering of the website on WordPress or elsewhere). At 158 ff this leads to a re-discussion of Bolagsupplysningen where the Court held that where a claimant seeks an injunction to rectify or remove damaging material from the internet, he can only do so only in a State with full jurisdiction. Parkes J at 160 suggests this is only in the state where the defendant is domiciled (the general rule, as stated by Art 2(1) Lugano and Art 4(1) RJR), or (by virtue of the special jurisdiction: Art 5(3) Lugano and Art 7(2) RJR) in the state where he has his centre of interests, and not before the courts of each member state in which the information is accessible.
I believe Parkes J on that point omits locus delicti commissi. At the time of my review of Bolagsupplysningen I suggested the judgment was 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, and of the centre of interests of the complainant. These evidently do not necessarily coincide. With more than one court having such full jurisdiction positive conflicts might arise.
Of more importance here is that Parkes J (obiter) at 163 suggests that the requirement of full jurisdiction, also applies to orders restraining any further publication and not just as the Grand Chamber held limited by the facts in Bolagsupplysningen, to orders for rectification and removal. In doing so he follows the in my view correct suggestion made by Dr Tobias Lutzi (‘Shevill is dead, long live Shevill!’, L.Q.R. 2018, 134 (Apr), 208-213) viz divisible cq indivisible remedies – update 28 September 2019 although the issue is not free of discussion. Graham Smith for instance suggests the potential for geo-blocking as a valid argument to grant jurisdiction for restraining further publication on an Article 7(2) locus damni basis.
Note also the cross-reference to Saïd v L’Express on the limitation of Bolagsupplysningen to injunctive relief: for damages, the full mosaic implications remain.
Conclusion: Claimant is entitled to summary judgment for a final injunction to restrain further misuse of his private information
(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 2, Heading 188.8.131.52.
Saïd v L’Express. The High Court finds no Bolagsupplysningen injunctive jurisdiction (upholds damages jurisdiction).
In Saïd v L’Express  EWHC 3593 (QB), held at the end of December, 1st Defendant is the publisher of the French language magazine L’Express. 2nd Defendant is described as the ‘directeur de la publiction, directeur de la redaction’ of the magazine and is said to have editorial responsibility for it. The claim was originally one in data protection under the GDPR and one in libel – currently only the libel claim has been continued. A pitty: for the GDPR issue see my prediction here.
214 copies of the magazine are sold to subscribers in the UK. There were 252 website visits to the article from within the UK. All the ingredients therefore of a classic C-68/93 Shevill action. Nicol J of course runs (with great clarity) through Shevill, eDate Advertising GmbH v X; Martinez v MGN Ltd Joined Cases C-509/09 and C-161/10) and Bolagsupplysningen. At 23 he holds correctly that the e-Date route of full jurisdiction for the claimant’s centre of interests applies only to internet publications (‘I detect no suggestion that, in respect of print copies, a claimant has the option of suing for compensation for all of the loss in the member state where he has his centre of interests’).
At 31 he summarises his key takeaways from Bolagsupplysningen.:
i) So far as internet publications are concerned, a claimant who is seeking relief such as an injunction may do so only (a) in a Member State where the defendant is domiciled (so that the Courts of that Member State have jurisdiction under Article 4(1)); or (b) in the Member State where Claimant has his centre of interests.
ii) Although by the time of the reference the Supreme Court of Estonia was concerned only with the corporate claimant, there is nothing in the judgment to suggest that the outcome in relation to the third question would have been different in relation to the individual claimant.
iii) The Court was concerned exclusively with publications on the internet. So far as remedies for print publications are concerned, a claimant’s options as set out in Shevill remain the same.
iv) Likewise, the Court was concerned exclusively with remedies for the rectification or removal of information from the internet. So far as other remedies, such as damages are concerned (even damages for internet publications) the Court appears to have made no change to the previous position. The Court’s judgment appears to be in contrast with the opinion of the Advocate-General (Bobek) whose preferred course was to restrict a claimant complaining of an internet publication, to those fora which had full power to deal with all copies of the publication so that the mosaic option would not be available in such cases (see  of his opinion) whatever remedies were being sought. ….’
He is absolutely right re Bobek’s Opinion as I discuss here.
Then follows the factual discussion (suggestions for centre of interest in England are at 47 and at 56) leading to a finding at 61 of there not being centre of interest in England which could displace the Bolagsupplysningen presumption of habitual residence (here: Monaco) being that centre. The preceding paras include important discussion on the amendment of claims and the need to identify the jurisdictional gateway (Mosaic and /or Bolagsupplysningen) in the claims form.
Finding therefore is at 73-74 that ‘Claimant has not shown a good arguable case that his centre of interests is in England and Wales. As is agreed, the Defendants are not domiciled in the jurisdiction. Accordingly and in accordance with Bolagsupplysningen, this court does not have jurisdiction to grant an injunction to restrain publication of the article on the internet. To that extent, the Defendants’ application succeeds. Otherwise, the Claimant has shown a good arguable case for the cause of action and other relief which he seeks. The remainder of the Defendants’ application is therefore refused.’ (Meaning that the application for summary dismissal on that point fails and the case must proceed on the damages issue, in mosaic fashion).
A first thorough application of Bolagsupplysningen I believe.
(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 2, Heading 184.108.40.206.