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Francisco Pinto Balsemão
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Fax: +351 21 392 9788
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Tel: +322 231 1299
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Heidi Lambert Communications
heidilambert@hlcltd.demon.co.uk
Tel:  +44 1245 476 265
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Fact sheets

Jurisdiction and applicable law

February 2006

Latest developments:

Following the 8 February Coreper meeting on ROME II, and Commissioner Frattini's surprise announcement in January that the Commission's revised proposals, due week commencing 13 February, will exclude the media from the scope of Rome II, there is an increasing chance that the media will no longer be covered directly by this Regulation. If so, there would be no EU-harmonised rule that would determine in advance which country's law would apply when plaintiffs plead cases of defamation and privacy. It is thought that this might be a necessary compromise if the Regulation is to be adopted during the Austrian Presidency.

The Coreper meeting revealed that the United Kingdom and Belgium will join France and possibly Poland in supporting a rule based on the country of origin of the media.

Meanwhile it emerged that several countries could accept exclusion of the media - either as a compromise position or in preference to a rule based on the law of the plaintiff's habitual residence including France, Portugal, Sweden, Ireland, Slovakia, UK and Malta.

The EPC will be calling on all Member States to look carefully at the latest options but in particular to support the UK, France, Belgium and Poland in finding a solution based on the law of the country of origin of the media in line with the European Parliament's first reading majority vote. Meanwhile exclusion would be preferable to the alternatives which automatically favour the law of the plaintiff, without regard for where the media is principally directed. The EPC is convinced it would be better for plaintiffs and media alike for there to be a rule establishing which law would apply in cases brought against the media but only in such a way that we ensure that journalists, their editors and publishers are saved from the unacceptable task of pre-clearing content against 25 different legal and regulatory systems before going to print."

Issue at stake:

Cited goal of regulation: "to improve the foreseeability of solutions regarding the applicable law to non-contractual obligations".

Rome II is the draft regulation on applicable law to non-contractual obligations that would apply in cross border cases of defamation, violations of privacy and the right of reply. The EPC has been fighting, along with other EU media and journalists' organisations, to uphold the country of origin principle to ensure that plaintiffs can only take cases according to the law of the country of habitual residence of the broadcaster or publisher in question although the EPC fully supports the compromise amendment adopted by the European Parliament at First Reading (see below). The alternative, the "law of the forum" whereby plaintiffs can shop around and seek redress for local damages in multiple countries and according to different laws, would create huge legal uncertainty and the constant threat of legal action in any one of the 25 EU Member States.

The main debates for the media centre around "Article 6", which regulates the law that applies in cross-border violation of privacy and rights relating to the personality (defamation); Recital 12 a (now amendment 10), and Article 26a (now amendment 54) referring to the establishment of a "self-obligating European Media Code and/or a European Media Council".

EPC position:

The European Publishers Council (EPC) has from the outset been calling for the EU to support a rule to deal with conflicts of law on defamation and privacy based on a "country of origin" approach whereby plaintiffs would be obliged to plead their case under the law of the country of origin of the media involved or, in line with a European Parliament amendment, the country to which the publication or broadcast is principally directed, i.e. where the majority of the audience is based. The alternatives on the table favour a rule which would automatically lead to the law of the victim's habitual residence applying, without any requirement to prove substantial distribution outside the country of origin, or any measure of real damage. The EPC believes this would encourage "forum shopping", where plaintiffs could shop around for the Member State likely to look most favourably on their case or with the Member State of States likely to offer the best financial reward in the case of a win.

What happens next:

The proposal will be discussed at the Council of Ministers meeting during the week of 20 February.

Key players:

  • Commissioner Franco Frattini, Justice, Freedom and Security
  • Diana Wallis, MEP

For further information:

For journalists on this or other topics, please contact Heidi Lambert Communications on Tel: +44 1245 476 265 or heidilambert@hlcltd.demon.co.uk.

For EPC members and general enquiries please contact Angela Mills on Tel: +44 1865 310 732 or angela.mills@epceurope.org.

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