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Issues

The proposal for a regulation of the European Parliament and the Council on the law applicable to non-contractual obligations ("Rome II")

Submissions of the British media

 

14 November 2023

Summary of observations

  • The Commission may not exercise its competence to enact Articles 3(1) of the Draft Regulation in relation to non-contractual obligations relating to privacy and personality rights since the proposed action is neither necessary nor appropriate to achieve its purported objective.
  • In respect of non-contractual obligations relating to privacy and personality rights, Article 3(1) of the Draft Regulation is excessively unclear and unpredictable contrary to the right to free expression under Article 10 of the Convention and will lead to excessive delays in violation of Article 6 of the Convention.
  • Article 3(1) of the Draft Regulation conflicts with the principle of "home country control" in the E-Commerce Directive and is likely to lead to illogical inconsistencies depending on whether the publication is made in hard or electronic copy.
  • To comply with the principle of "home country control" in the Directive, the applicable law in defamation cases under the Draft Regulation should be that of the country of origin of the publisher subject to express safeguards for the protection, through the mandatory rules of the forum, of the interests of claimants.

Introduction

  1. These submissions set out the concerns of the UK Media[1] that the Proposal as presently drafted of the European Commission ("the Commission") for a Regulation of the European Parliament and Council on the law applicable to non-contractual obligations ("Rome II") does not secure compliance with the fundamental right of freedom of expression, including the principles of legal certainty, proportionality and non-arbitrariness, protected by Articles 6 and 10 of the European Convention on Human Rights ("the Convention"):
  2. Submissions on the preliminary proposal for the Draft Regulation were made by News International Limited to the Commission at a formal hearing in Brussels on 13 January 2003. Following this hearing, the Commission made several significant amendments to the Draft Regulation and the Media is grateful for the Commission's efforts in this respect. The Media hopes that the Commission will engage with these Submissions with the same appreciation of the importance of ensuring the legality of this far-reaching legislative initiative.
  3. These Submissions examine the following:
    1. the competence of the European Community legislature in the harmonisation of privacy and defamation law;
    2. the breach of Article 6 and/or 10 of the Convention for want of legal certainty in the Draft Regulation;
    3. the appropriate "applicable law" test for defamation cases under the Draft Regulation; and
    4. the conflict between the Draft Regulation and Directive 2000/31/EC of the European Parliament and Council on certain legal aspects of information society services, in particular electronic commerce in the Internal market, known as the E-Commerce Directive ("the Directive").

The competence of the European Community legislature in the harmonisation of privacy and defamation law

(1) Substantive defamation law
  1. The European Community has no express competence to legislate for the conduct of journalists or publishers in relation to the content of their publications[2]. There is no express provision of the EC Treaty upon which a directive or regulation governing substantive defamation rules could be based.
(2) Rules of conflict of laws
  1. The Media acknowledges that the EC Treaty provides for Community competence in the field of conflict of laws. Article 65(b) EC provides as follows:

"Measure in the field of judicial co-operation in civil matters having cross-border implications, to be taken in accordance with Article 67 and in so far as necessary for the proper functioning of the internal market, shall include…(b) promoting the compatibility of the rules applicable in the Member States concerning the conflict of laws and jurisdiction" (emphasis added).

  1. The requirement of necessity for the proper functioning of the internal market must be considered alongside Article 5 EC which provides, among other things, that:

"In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community".

  1. The requirements of necessity and subsidiarity must be strictly applied to the Draft Regulation since the field of media content involves, to a substantial extent, cultural matters in relation to which the Community has no competence beyond that granted by Article 151 EC. Article 151(5) EC specifically excludes harmonising measures such as the Draft Regulation. The Draft Regulation governs the media context of audiovisual as well as traditional publishers and the distinction between the modes of publication is increasingly vague as mobile telephony and other communications technology develops.
  2. The Commission should note that the Community legislature has previously recognised the cultural nature of media content and respected the provisions of Article 151 (and its predecessors) in legislation such as the "Television without Frontiers" Directive (89/552/EEC), and the European Parliament resolution on new frontiers in book production: electronic publishing and printing on demand (2000/2037(INI))
  3. In relation to the actual text of Articles 3 and 6 of the Draft Regulation,
    1. the Commission has failed to demonstrate that it has satisfied the tests contained in Articles 5 and 65(b) EC; and
    2. until these tests are satisfied, the Commission cannot, as a matter of Community law, exercise its competence in this field[3].
  4. The Media's primary submission is that, because the Commission has failed to satisfy these tests, non-contractual obligations relating to privacy and personality rights should be included in the list of exclusions from the scope of the Draft Regulation contained in Article 1. If non-contractual obligations relating to privacy and personality rights are not to be excluded from the scope of the Draft Regulation, and the Commission demonstrates that it can satisfy the requirement of necessity for harmonisation in this area, the Media suggests below amendments to the Draft Regulation in order to secure its compliance with Community law.
(3) The competence to enact Articles 3 and 6 of the Draft Regulation
  1. Article 65(b) EC requires the Commission to show that Articles 3 and 6 of the Draft Regulation are necessary for the proper functioning of the internal market. The internal market is an economic concept which involves removing the technical, regulatory, legal, bureaucratic, cultural and protectionist barriers that stifle free trade and free movement within the Union. The Commission has not demonstrated that the existence of different rules relating to the law applicable to libel in the Member States acts as such a barrier or stifles free trade or free movement of economic operators in any way. The Commission should recall that the Draft Regulation governs journalistic content entirely separate to the advertising or marketing material which often accompanies it and which has an overtly commercial nature. In many cases, the journalistic content which the Draft Regulation seeks to regulate will have no appreciable economic impact and therefore no effect on the internal market. These considerations are of vital importance in the context of the requirement of "necessity" in Article 65 EC.
  2. The Explanatory Memorandum to the Draft Regulation states that its primary objective is to reduce legal uncertainty in the area of conflict of laws in non-contractual disputes in order to promote the proper functioning of the Internal market[4]. In relation to conflict rules and "violations of privacy and rights relating to the personality", the Commission states that the great differences in conflict rules between the Member States increases legal uncertainty for economic operators and that "harmonising the conflict rule in the Community will increase certainty in the law"[5].
  3. It is true that the conflict rules in the area of privacy protection and defamation vary greater between the Member States of the EU. The Commission states that "[o]perators regard the foreseeability of the law applicable to their business as of the greatest importance" and implies that it is a matter of internal market necessity that a single conflict rule for defamation cases be adopted throughout the EU.
  4. The Commission's rationale is incorrect, however, for the following reasons:
    1. the Commission has failed to establish that in the present circumstances it is necessary for the proper functioning of the Internal Market to harmonise the conflict rules relating to privacy and defamation; and
    2. if it is necessary to harmonise the conflict rules relating to privacy and defamation, Articles 3 and 6 of the Draft Regulation as presently drafted do not promote, and potentially damage, the Internal market.
(a) The necessity of a harmonising conflict rules relating to privacy and defamation
  1. The Media sees no evidence of a campaign by economic operators in the EU for the kind of harmonisation proposed in Articles 3 and 6 of the Draft Regulation. The Commission refers in the Explanatory Memorandum to the representations of certain economic operators but fails to indicate the number of such companies or individuals which sought such harmonisation and whether such views were solicited by the Commission or volunteered by the operators concerned. There is no indication that any body petitioned the Parliament under Articles 21 and 194 EC for a reform in Community law of the kind proposed in Articles 3 and 6 of the Draft Regulation. There is no indication that the Commission has engaged in any proper economic assessment of the necessity of its action in this respect.. On the contrary, the Commission must be aware that such economic operators believe that the Draft Regulation will not assist their intra-Community trade.
  2. It should be noted that the United States does not have a single conflict rule for non-contractual obligations, including defamation actions. Instead, the several States have adopted a number of different rules. The comparison with the United States is valid since the United States is also a single market with a population and GDP similar to that of the EU. Most of the EU holds a single currency like the United States and both entities have supra-national/federal institutions and supreme supra-national/federal law in certain spheres.
  3. In the United States, it appears that there are two main rules, "vested rights", under the Restatement of Conflict of Laws, paras 6-8 (1934), where the court applies the law of "the place of the wrong" and the "most significant relationship" test, under the Restatement (Second) of Conflict of Laws, para. 6 (1971). The first rule is followed by less than half the US States including Tennessee. The second rule is more popular and has been adopted in such major states as Illinois, Ohio, Texas, and Washington. North Dakota, Indiana, and some other States apply a third test known as the "center of gravity" test where the court applies the law of the state with the most "significant contacts" with the case. California, Louisiana and some other States apply a "governmental interest" test where the court finds the proper law to apply based upon the interest of the states involved[6].
  4. As far as the Media is aware, there is no material proposal to abolish the differences in the US States' conflict rules in defamation cases and it is not generally accepted that these differences damage the internal market and trade between the US States.
  5. Whether the legislation is genuinely required and appropriate to assist the internal market is often the main question in the rare challenges before the ECJ based on lack of competence. In the Tobacco case, Germany successfully challenged the legality of an EC Directive arguing that it had been wrongly adopted under the internal market provisions of the EC Treaty (Article 100a EC) when it was properly an attempt to harmonise health and safety, which was expressly excluded by the EC Treaty. The ECJ held that it was insufficient, to show that the Directive was justifiably a measure designed for "the…functioning of the internal market", for the Commission to make "a mere finding of disparities between national rules and of the abstract risk of obstacles to the exercise of fundamental freedoms [the free movement of goods, services and capital and the freedom of establishment]"[7].
  6. If such limited findings on the part of the Commission are insufficient to show that legislation properly has as its object the establishment and functioning of the internal market, it is certainly insufficient to show that the relevant legislation is necessary for the proper functioning of the internal market.
  7. In the parts of the Explanatory Memorandum to the Draft Regulation relating to Articles 3 and 6, the Commission has done no more than find mere disparities between national conflict rules and an abstract risk of obstacles to the functioning of the internal market.
  8. Since, for all of these reasons, the Commission has failed to demonstrate the harmonisation is necessary or justifiable in the area of non-contractual obligations relating to privacy and personality rights, disputes involving such rights should be excluded in their entirety from the scope of the Draft Regulation.
(b) The effect of Articles 3 and 6 of the Draft Regulation on the internal market
  1. If non-contractual obligations relating to privacy and personality rights are to be included in the scope of the Draft Regulation, the Commission should note that Articles 3 and 6 of the Draft Regulation do not promote, in a proportionate manner, the proper functioning of the internal market.
  2. The only obstacle to the functioning of the internal market caused by the disparities between the national rules to which the Commission refers in the Explanatory Memorandum is that allegedly created by legal uncertainty[8].
  3. The Media submits, however, that the relevant provisions of the Draft Regulation, as presently drafted, harm rather than improve legal certainty in this area in England and Wales.
  4. Article 3 of the Draft Regulation provides as follows:
    1. "The law applicable to a non-contractual obligation shall be the law of the country in which the damage arises or is likely to arise, irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event arise.
    2. However, where the person claimed to be liable and the person sustaining damage both have their habitual residence in the same country when the damage occurs, the non-contractual obligation shall be governed by the law of that country.
    3. Notwithstanding paragraphs 1 and 2, where it is clear from all the circumstances of the case that the non-contractual obligation is manifestly more closely connected with another country, that law of that other country shall apply. A manifestly closer connection with another country may be based in particular on a pre-existing relationship between the parties, such as a contract that is closely connected with the non-contractual obligation in question".
  5. Article 6 of the Draft Regulation provides as follows:
    1. "The law applicable to the non-contractual obligation arising out of a violation of privacy rights or rights relating to the personality shall be the law of the forum where the application of the law designated by Article 3 would be contrary to the fundamental principles of the forum as regards freedom of expression and information.
    2. The law applicable to the right of reply or equivalent measures shall be the law of the country in which the broadcaster or publisher has its habitual residence".
  6. In the Explanatory Memorandum, the Commission seeks to explain the concept in Article 3(1) of the Draft Regulation by reference to Article 5(3) of Regulation 44/2001 governing jurisdiction over torts, delicts and quasi-delicts which provides for jurisdiction for "the courts where the harmful event occurred". The ECJ has consistently interpreted this provision to mean that the claimant has a choice of suing in the courts of the place where the damage occurred, or in the courts of the place where the event giving rise to the damage occurred[9].
  7. The Commission appears to have the Bier judgment in mind in its reference in Article 3(1) of the Draft Regulation to the expression "the country in which the event giving rise to the damage occurred". Any legal certainty which might provided by the fact that the Commission is relying on the established case law of the ECJ is precluded by use by the Commission of the term "arises" in Article 3(1) which does not appear in the ratio of the judgment in Bier. The ECJ in Bier referred instead to the expression "the place where damage occurred". The verb "arise" has a different meaning to that of the verb "occur" and it is possible to interpret the latter to refer to a more sudden event than the former which may be interpreted to refer to origination or the process of coming into existence[10].
  8. The Commission has failed to explain why, if it purports to follow the concepts in the judgment in Bier, it has deviated from the precise wording used by the ECJ. The expression "where the damage arises" does not appear in the Brussels or Rome Conventions or in the Regulation 44/2001 which largely replaced the Brussels Convention. The novelty of the expression and the lack of guidance provided by the Commission in its interpretation arguably creates greater uncertainty in the law in England and Wales than exists at the present time. The Media notes that the same error does not appear in the French version of the Draft Regulation.
  9. The ECJ applied the principles in Bier to an English libel case in Shevill where the claimants were established in England, France and Belgium and the alleged libel was published in a French newspaper with a small circulation in England. The ECJ held that, in the case of a libel in the press:
    1. the place where the damage occurs is the place where the publication is distributed, when the victim is known in that place (paragraph 29); and
    2. the place of the event giving rise to the damage takes place is the country where the newspaper was produced (paragraph 24)[11].
  10. The ECJ also held in Shevill that as regards the assessment by the English court applying Article 5(3) of the Brussels Convention (or now, Regulation 44/2001) of whether "damage" actually occurred or not, the national court should apply national rules provided that the result did not impair the effectiveness of the general objectives of the Brussels Convention (or now, Regulation 44/2001).
  11. Further, in Shevill, applying Bier, the ECJ held that where a libel causes damage in several different EU Member States, the victim may sue in any of the jurisdictions where the libel is published in respect of the damage suffered in that jurisdiction.
  12. Since, according to the Explanatory Memorandum of the Commission, the jurisprudence of the ECJ in relation to Article 5(3) of the Brussels Convention/Regulation 44/2001 will inform the interpretation of Article 3(1) of the Draft Regulation, it is likely that where a newspaper is published in many different countries where the victim of the alleged libel is known, an English court seised with the case will apply the laws of each of those countries.
  13. It should be recalled that since the Draft Regulation will be of universal application, those countries may have widely differing defamation rules entirely alien to the UK or any Member State of the EU. Article 3(1) of the Draft Regulation provides no guidance as to which of those countries, if any, should be chosen as the country whose law is to be applied to the dispute. It is clear that, as a matter of practicality, an English court will be unable to apply the laws of several different countries at once to the same dispute.
  14. The Commission suggests, at page 11 in the Explanatory Memorandum, that where the laws of several different countries may be applied under Article 3(1) of the Draft Regulation:

"the laws of all the countries concerned will have to be applied on a distributive basis, applying what is known as "Mosaikbetrachtung" in German law" (emphasis added).

  1. The Commission appears to argue that the English court in the circumstances described above may have to break up the libel claim according to the damage which has been suffered in the various countries at issue and in respect of each of the said parts, apply the law of the relevant country of the part.
  2. If this understanding of the Commission's view is correct, an English judge applying Article 3(1) may have to apply the defamation laws of potentially over a hundred countries in respect of a publication such a broadcast programme by, for example, a major satellite television company such as BSkyB plc allegedly defamatory of a very well known individual, such as the footballer, David Beckham. Of even greater concern is the position of newspapers, broadcasters and other publishers which provide their journalistic content on the internet. This may be accessed anywhere in the world provided that the necessary technology is available. None of these publishers have any control over the accessing, printing or distribution of articles contained in their electronic editions. In the area of internet publication, it is not difficult for an article relating to an internationally-known individual to be accessed and "distributed" in a very great number of countries.
  3. It is unlikely that such or most publishers would be able to avail themselves of the defence suggested by the Commission in the Explanatory Memorandum that this form of distribution might be non-commercial and escape the operation of Article 3(1). In many cases the material described above cannot be accessed except by paying subscribers and in any event since the publishers' websites themselves contain advertising and are operated on a commercial basis, it would be difficult to characterize the articles accessed from them as non-commercial.
  4. The Media is concerned that the Commission has failed to appreciate the very broad scope that "commercial" publication now has as a result of easily-accessed and low-cost technology. Virtually any individual in the EU can become a "commercial" publisher at the present time. It is a very simple matter to set up a website and to accept advertising on it in order to generate a small income. The advertisements are usually charged on a "click-per-view" basis. The leading US internet operator, Google, arranges this free for publishers of weblogs[12] and even recommends advertisers who may be suitable for the individual's website The advertisers pay the individuals, usually monthy, if the "clicks" on the advertisements reach the required level. Despite the fact that the advertising fees involved are relatively low, there is no doubt that the operation is "commercial" within the autonomous notion given to that term by the ECJ.
  5. The sole attempt by the Commission to assist an English judge in a situation where he is required by Article 3(1) of the Draft Regulation to apply a great number of different applicable laws is the brief reference to the German law concept of "Mosaikbetrachtung". This concept is unknown in English law and no guidance is provided by the Commission, or in the jurisprudence of the ECJ, as to how it is to be understood and applied by an English judge.
  6. Further, at page 18 of the Explanatory Memorandum, the Commission states that "a publication can be regarded as distributed in a country only of it is actually distributed there on a commercial basis" (emphasis added). The Commission fails to explain if it refers to distribution by the original publisher or broadcaster. Newspapers, magazines and individual articles may be re-sold or sold to distributors for resale where the original author or publisher is unaware of the exact ultimate destination of the publication. In any event, it is impossible for an author or publisher to control or even have knowledge of the ultimate destination of his work. It appears that, according to the Commission's view, provided that the work is sold on a commercial basis, even by a third party or more, to the ultimate recipient in the country at issue, the law of that country may be the applicable law of the dispute in England.
  7. Contrary to the view of the Commission in the Explanatory Memorandum, Article 3(1) of the Draft Regulation as presently drafted would, if non-contractual obligations relating to privacy and personality rights are not excluded from the scope of the Draft Regulation, greatly increase legal uncertainty for claimants and defendants in libel cases in England since it is impossible to predict the manner in which an English court will, if it is even practically possible, apply Article 3(1). In a case such as that described in paragraph 38 above, it appears that, at the very least, the following actions would be necessary:
    1. The court would determine which parts of the damage allegedly resulting from the libel may be attributed to the countries at issue and the extent of any damage alleged. This would involve obtaining evidence (of reputation, damage etc.) from each of the (potentially very many) countries by way of witnesses of fact who would have to travel to the UK (or transmit their evidence by videolink, if such facilities are available in the country in question) where such evidence would be tested in cross-examination.
    2. The court would consider expert evidence as to the true meaning of each of the relevant foreign laws.
    3. In respect of each separate part of the alleged libel depending on the country where the damage occurred, the court would apply the relevant foreign law provisions and assess the liability and quantum in respect of that part.
  8. Such a task would be extremely time-consuming and costly and it would be difficult to predict with any certainty how an English judge in an individual case would determine and apply the different foreign laws in respect of the different occasions of damage following from a single publication.
  9. Moreover, the analysis set out above refers only to countries "in which the damages arises" within the meaning of Article 3(1) of the Draft Regulation. Article 3(1) also extends the choice of applicable law to all of those countries where "damage…is likely to arise". This involves a further exercise for the English court in addition to those set out in paragraph 43 above, whereby the court must determine whether, again by reference to local evidence in the foreign countries concerned, in addition to the countries where damage has occurred, there are further separate countries where damage is likely to occur. If it is established that damage is likely to such other countries, the laws of these other countries must also be applied by the English judge "on a distributive basis", according to the Commission.
  10. The Commission offers as a further justification for Article 3(1), at page 12 of the Explanatory Memorandum to the Draft Regulation, that it "reflects the modern concept of the law of civil liability which is no longer, as it was in the first half of the last century, oriented towards punishing for fault-based conduct: nowadays it is the compensation function that dominates, as can be see from the proliferation of no-fault strict liability schemes". The Commission implies that this is a development common to all of the Member States and therefore an appropriate basis for Article 3(1) of the Draft Regulation. In fact, the law of non-contractual obligations in the UK (and probably Ireland) is still very much oriented towards liability for fault-based conduct. Some torts of strict liability have emerged through the tort of breach of statutory duty, particularly in the area of health and safety. The reference by the Commission, however, to a proliferation to no-fault State compensation schemes simply does not reflect the situation in the UK where such schemes are rare and a relatively recent innovation.
  11. With regard to Article 6 of the Draft Regulation, the amendments made by the Commission to the first draft of the legislation following the hearing in January 2003 in order to protect freedom of expression do not remove from the test in Article 3(1) either
    1. the practical impossibility of its application in a multi-jurisdictional libel involving a well-known individual and a major international publisher or broadcaster; or
    2. the legal uncertainty caused by the novelty of the language in Article 3(1) of the Draft Regulation and the scope of its application, the lack of any substantive guidance on the potential application of Article 3(1) and the lack of clarity in the brief guidance offered by the Commission in the relevant part of the Explanatory Memorandum.
  12. In conclusion in relation to Article 3(1) of the Draft Regulation, an enactment of this provision as presently drafted would not be a proper or lawful exercise of any competence of the Community in this area since Article 3(1) will create greater legal uncertainty than exists at the present time and is in any event unworkable. In the circumstances, the draft provision cannot assist the proper functioning of the internal market.
  13. As regards the drafting of Article 6 of the Draft Regulation itself, the expression "rights relating to the personality" is nowhere defined in the Draft Regulation and is a novel concept in Community law. In the interests of legal certainty, this expression must be defined in the Draft Regulation.

The compatibility of Articles 3(1) and 6 of the Draft Regulation with Articles 6 and/or 10 of the Convention

(1) The fundamental right to freedom of expression as a matter of Community law
  1. Article 6(1) of the Convention provides, among other things, as follows:

"In the determination of his civil rights and obligations…everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…."

  1. Article 10 of the Convention provides as follows:
    1. "Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers…
    2. "The exercise of these freedoms since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society…for the protection of the reputation or rights of others."
  2. The Article 10(2) exception allowing restrictions to be made upon free expression for the protection of reputation by defamation law must comply with three conditions. The restrictions must:
    1. pursue a legitimate aim or aims; and
    2. be 'prescribed by law'; to comply with the principle of legal certainty the law must be easily accessible and must be formulated with sufficient precision for the ordinary citizen to rely upon the legal rules to regulate his or her conduct, and to avoid arbitrariness in the application of the law: see e.g., Sunday Times v United Kingdom (No. 1) (1979) 2 EHRR 245; Huvig v France (1990) 12 EHRR 528; and
    3. be 'necessary in a democratic society' for the protection of the legitimate aim or aims of defamation law; that is, they must be proportionate to the end pursued, securing what is necessary for the protection of reputation and no more.
  3. In deciding whether a given interference with free expression is necessary in a democratic society, the Court "is faced not with a choice between two conflicting principles, but with a principle of freedom of expression that is subject to a number of exceptions which must be narrowly interpreted": Sunday Times v United Kingdom (No.1) (1979) 2 EHRR 245, at 281, paragraph 65. The European Court of Human Rights ("the ECtHR") explained in Sunday Times v United Kingdom (No.2) (1991) EHRR 229 (Spycatcher), at 241-42, that there must be a "pressing social need" for "any restriction on free speech".
  4. It is clear from the EHCtR's judgment in Sunday Times (No.1) that the principle of proportionality does not involve striking a balance between equally competing interests, but giving effect to a principle of free expression subject to exceptions to be narrowly construed.
  5. The ECJ set out, in Case C-274/99 P Bernard Connolly v Commission [2001] ECR I-1611, the status of Article 10 of the Convention as a matter of Community law.
  6. 56. The ECJ held, at paragraph 37, that fundamental rights form an integral part of the general principles of law, whose observance the ECJ ensures. For that purpose, the ECJ draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or to which they are signatories. The ECtHR has special significance in that respect (see, in particular, Case C-260/89 ERT [1991] ECR I-2925, paragraph 41).
  7. The ECJ noted that those principles have been restated in Article 6(2) of the Treaty on European Union, which provides that "The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 2023 and as they result from the constitutional traditions common to the Member States, as general principles of Community law".
  8. At paragraphs 39 to 42 of its judgment in Connolly the ECJ held as follows:

"As the Court of Human Rights has held, 'Freedom of expression constitutes one of the essential foundations of [a democratic society], one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10 [of the ECHR], it is applicable not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb; such are the demands of that pluralism, tolerance and broadmindedness without which there is no democratic society…

Freedom of expression may be subject to the limitations set out in Article 10(2) of the ECHR…Those limitations must, however, be interpreted restrictively. According to the Court of Human Rights, the adjective 'necessary involves, for the purposes of Article 10(2), a 'pressing social need and, although '[t]he contracting States have a certain margin of appreciation in assessing whether such a need exists, the interference must be 'proportionate to the legitimate aim pursued and 'the reasons adduced by the national authorities to justify it must be 'relevant and sufficient (see, in particular, Vogt v Germany, § 52; and Wille v Liechtenstein judgment of 28 October 1999, no 28396/95, § 61 to § 63). Furthermore, any prior restriction requires particular consideration (see Wingrove v United Kingdom judgment of 25 November 1996, Reports of Judgments and Decisions 1996-V, p. 1957, § 58 and § 60).

Furthermore, the restrictions must be prescribed by legislative provisions which are worded with sufficient precision to enable interested parties to regulate their conduct".

  1. At paragraph 48 of the judgment, the ECJ acknowledged in a Community context that in exercising their power of review, the Community Courts must decide, having regard to all the circumstances of the case, whether a fair balance has been struck between the fundamental right to freedom of expression and the legitimate interests protected by Article 10(2) of the Convention.
(2) Articles 3(1) and 6 of the Draft Regulation
  1. Apart from the lack of legal certainty in the drafting of Article 3(1) of the Draft Regulation, newspapers and other publishers remain concerned with the issue of principle in Article 3(1), which is that foreign defamation laws potentially inimical to the constitutional traditions of the Member States may be applied in the UK and have a "chilling effect" on the exercise of the fundamental right contained in Article 10 of the Convention. In circumstances where such foreign rules are imported, the Community legislature must be particularly anxious to secure adequate protection for the fundamental human rights of such economic operators in the EU.
  2. As noted in the January Submission to the Commission, in the United States the courts have been careful not to import foreign defamation laws through the enforcement of judgments which are inconsistent with the fundamental right to free speech recognised in the 1st Amendment to its Constitution. In Bachchan v India Abroad Publications Inc 585 NY 2d 661, the court stated as follows:

"It is true that England and the United States share many common law principles of law. Nevertheless, a significant difference between the two jurisdictions lies in England's lack of an equivalent to the First Amendment to the United States Constitution. The protection to free speech and the press embodied in that amendment would be seriously jeopardised by the entry of foreign libel judgments granted pursuant to standards deemed appropriate in England but considered antithetical to the protections afforded the press by the US Constitution."

  1. The "chilling effect" of the rule in Article 3(1) of the Draft Regulation will be particularly serious in the case of an internet publisher. For example, a newspaper with an electronic edition may be accessed (and therefore distributed) anywhere in the world provided that the relevant technology is available. In such a situation, the laws of many of the countries where the alleged damage to an individual's reputation occurs may well contain provisions contrary to the common law protection of freedom of expression and Article 10 of the Convention, e.g. the defamation laws of Malaysia, Burma and Singapore.
  2. In relation to the ease with which any Community citizen may set up a personal website, accept a small amount of advertising and exercise his fundamental right to freedom of expression, the Media posits the following example:

An EU citizen interested in the history of the Second World War in the Pacific may, in his research, discover certain evidence that a prominent businessman of Japanese heritage, who is now based in the UK and employed by a major Japanese conglomerate, was involved in the use of slave labour in his factories during the war. This individual is entitled to publish his research, in hard copy and on his personal website or weblog. This weblog advertises to a small extent various services of historical interest. The weblog is available in several different languages, including Japanese, as the individual takes advantage of the web translator available on the internet.

The claimant brings a libel action in the UK, the place of his current domicile, and Japanese law is applied under Article 3 of the Regulation by the UK court because the material was downloaded in Japan and he has his reputation there. The Commission should note that in Japanese law, truth is no defence unless coupled together with public interest in publication. No defence of fair comment exists, or of privilege. Further, in Japanese law the concept of the "public interest" and that of rigorous investigation and revelation of the national role in the Second World War are not synonymous in the experience of a number of the organisations which make these Submissions.

  1. In those circumstances, it is of vital importance that, if non-contractual obligations relating to privacy and personality rights are not excluded from the scope of the Draft Regulation, the drafting of Article 3(1) and of Article 6 of the Draft Regulation (1) adequately protects the Article 10 and common law rights of publishers and (2) is as clear and certain as possible so that publishers may be able to predict with reasonable certainty how these provisions will be applied. For the reasons set out above, Article 3(1) as presently drafted does not adequately protect the Article 10 or existing domestic free speech rights of publishers and does not allow publishers to predict the results of their actions with reasonable certainty.
  2. Moreover, for the reasons set out above, as a result of the rule in Article 3(1) that all of the laws of the places where damage allegedly arises must be applied and the lack of clarity in the drafting in Article 3(1) itself, it is likely that the application of Article 3(1) in cases involving mass media and internet publishers will result in excessive delays contrary to Article 6(1) of the Convention. Article 6(1) of the Convention guarantees the right to a hearing and judgment within a reasonable time.
The incompatibility of the draft Regulation with the E-commerce Directive
  1. The Directive gives some protection to newspapers, broadcasters and other publishers which provide information on-line from the severe chilling effect upon free expression of exposure to liability for defamation resulting from multi-country publication. Its objective, as Recitals 8 and 9 make clear, is "to create a legal framework to ensure the free movement of information society services between Member States", as a "specific reflection in Community law of a more general principle, namely freedom of expression as enshrined in Article 10(1) of the …[Convention], which has been ratified by all the Member States; for this reason, directives covering the supply of information society services must ensure that this activity may be engaged in freely in the light of that Article, subject only to the restrictions laid down in paragraph 2 of that Article and in Article 46(1) of the Treaty".
  2. Article 3(2) of the Directive provides as follows:

"Member States may not, for reasons falling within the co-ordinated field, restrict the freedom to provide information society services from another Member State".

  1. Article 2(i) of the Directive includes, among other things, in the definition of the "co-ordinated field" "requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service…or requirements concerning the liability of the service provider". The Law Commission of England and Wales, which is the official body responsible for proposing law reform in this jurisdiction, has stated in its publication "Defamation and the Internet" (2nd Scoping Paper, December 2002) that the definition of the "co-ordinated field" includes defamation since it is "a requirement of a general nature concerning publisher's liabilities" (paragraph 4.43).
  2. Under the definitions contained in Article 2 of the Directive, the provision of journalistic and editorial content on-line by the publishers described above constitutes the provision of an "information society service" (Article 2(a))[13], the publishers are information society "service providers" (Article 2(b)) and "established service providers" in their countries of origin (Article 2(c)).
  3. In general, Chapter II of the Directive relies on the concept, common in Community harmonisation measures, of "home-country control" and provides that the Member States authorise and supervise according to their own laws, the information society service providers established on their soil. The operation of Article 3(1) of the Draft Regulation, when applied to internet publications, undermines the principle of "home country control" enshrined in the Directive.
  4. The UK courts, when applying the Electronic Commerce (EC Directive) Regulations 2002, which implement the Directive, are compelled by Article 10 EC to give effect to the spirit as well as the letter of the Directive. Where the publication is made in a traditional form and the Directive does not apply, the domestic courts will have regard solely to the rule in Article 3(1) of the Draft Regulation. This is likely to lead to create inconsistent and arbitrary results depending simply on the means of publication i.e. off-line or on-line.
  5. Moreover, where the electronic publisher is based in a Member State other than the UK but the dispute takes place in the UK, the UK court may be compelled to give effect to foreign and non-EU defamation laws highly prejudicial to the publisher such that the freedom of the European publisher to provide an information society service within the UK is restricted. Such a result is forbidden by Article 3(2) of the Directive. Where the publication is non-electronic, Article 3(2) of the Directive has no application. Given that newspapers and magazines increasingly exist in both hard and soft copy, this could produce considerable complication into the law.
  6. To subject the same defamatory material published in the same place by the same newspaper to two entirely separate legal regimes depending on whether it is published in hard copy or on the Internet is an arbitrary distinction which offends against the principle of legal certainty protected by both Community law and the Convention.
  7. Such an arbitrary distinction, which violates the principle of legal certainty, has itself a "chilling effect" on the exercise by newspapers and other publishers of the fundamental right to free expression (Huvig v France (1990) 12 EHRR 528).
  8. It is common for newspapers, magazine and other news publishers to publish hard copy and on-line editions simultaneously and for newspapers to maintain on-line archives of earlier editions. It is also common for claimants in libel actions to sue over the on-line and on the hard copy publication separately. The Sunday Times has been sued on at least two occasions by claimants who have sought to recover damages in one action for the offline or hard copy version of a story and then in a second action for the online version of the same story. In one of these actions, Philip Green & Cristina Green v Times Newspapers Limited the judge, Mr. Justice Gray in the English High Court ordered that the damages in the two separate sets of proceedings, one over the hard copy version of a story and the other the online version of the same story should be assessed by one judge not by a judge in one action and a jury in the other since the latter could have led to widely differing results. This could not have been done if the laws of one country applied to one set of proceedings and the laws of another country to the second set of proceedings even though the same article lay at the heart of each action. Such a situation would lead to great legal uncertainty contrary to Article 10(1) and Article 6(1) of the Convention and would also provoke unnecessary appeals which would greatly increase the costs of all parties concerned.
  9. In Grigori Loutchansky v Times Newspapers Limited, Dr. Loutchansky brought a second libel action (after his first action in respect of the hard copy edition) over the Internet edition of the newspaper and the damage that it had caused on the internet to his reputation in Austria, Germany, Switzerland and Russia. In both actions the articles were identical and the damages will be assessed at one final hearing. If different laws had been held to apply in the separate actions, the hearing on liability and the assessment of damages would be extremely and unjustifiably complicated and the costs of the proceedings would unnecessarily be increased.
  10. The Media have direct experience of online and offline defamation actions brought against them by multimillionaire claimants from outside the EU, for example The Times, owned by News International was sued in recent years by Grigori Loutchansky and Mikhail Khordorkovsky. Other wealthy Russian claimants who have chosen the UK jurisdiction in which to sue for defamation include Boris Berezovsky (who sued the American Forbes Magazine in the UK) and Gafur Rachimov who recently settled a defamation action with Express Group Newspapers.
  11. The Commission should note that reducing the protection afforded to publishers in their domestic legal orders in defamation cases and standardising the rules relating to the applicable law will benefit more than any other group, extremely rich businessmen who operate in several jurisdiction and in relation to whom allegations may be made which they believe may hinder their commercial activities. The Draft Regulation, will not, in the opinion of the Media, assist individuals of average means or SMEs in the protection of their reputations or privacy since such undertakings or individuals rarely operate outside of their Member States and are very rarely involved in multi-jurisidictional libel actions.
  12. In almost all the cases discussed in paragraph 77 above the legal costs have far outstripped the remedies obtained by the alleged victims. Since such costs have a clear "chilling effect" on the exercise by publishers of their fundamental right to freedom of expression, a further unnecessary complication, such as that created by Article 3(1) of the Draft Regulation, which would greatly increase costs further, must be avoided by the Community legislature.
  13. For all of these reasons, if non-contractual obligations relating to privacy and personality rights are not to be excluded from the scope of the Draft Regulation, in order to secure consistency between the Directive and the Draft Regulation, the general rule in Draft Regulation should be that in cases involving non-contractual obligations relating to privacy and personality rights the applicable law should be the law of the place where the defendant is established.
  14. The draft Regulation may provide that the mandatory rules of the forum (a concept taken from the Brussels Convention/Regulation 44/2001 and Rome I (1991 OJ C 27)) which exist to protect, among other things, the interests of the claimant in defamation cases should apply in any event. This rule appears in relation to consumer and employment contracts under the first Rome Convention and the Media has no objection to such protection for claimants which would protect the legitimate interests of EU citizens and residents and respect the fundamental rights discussed above. The possibility of invoking such mandatory rules would prevent any concern of the balance in the Draft Directive weighing unfairly in favour of defendants in defamation cases.
The proposed amendments to the draft Regulation
  1. 82. Accordingly, if non-contractual obligations relating to privacy and personality rights are not to be excluded from the scope of the Draft Regulation, in order to secure compliance with Community and Convention law and consistency with the Directive:
  1. Article 6 of the Draft Regulation should be replaced by the following text:
    1. "The law applicable to a non-contractual obligation arising out of a violation of privacy or rights relating to the personality shall be the law of the country in which the defendant is established irrespective of the country where the damage arises or is likely to arise, irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event arise.
    2. However, where the person claimed to be liable and the person sustaining damage both have their habitual residence in the same country when the damage occurs, the non-contractual obligation shall be governed by the law of that country.
    3. Notwithstanding paragraphs 1 and 2, where it is clear from all the circumstances of the case that the non-contractual obligation is manifestly more closely connected with another country, that law of that other country shall apply. A manifestly closer connection with another country may be based in particular on a pre-existing relationship between the parties, such as a contract that is closely connected with the non-contractual obligation in question.
    4. The applicable law under this Article is subject to the mandatory rules of the forum".
  2. Article 25 of the draft Regulation should refer expressly to the Convention.
The existing difficulties facing publishers in this field which ought to be the subject of further Community action
  1. The Media believe that in an electronic age involving widespread multi-jurisdictional on-line publications further action by the Community is vitally important to secure harmonisation and legal certainty in the area of on-line and off-line publications. In this context, the Media call on the Community to enter into negotiations and in respect of and to secure an international convention at the earliest opportunity relating to the law of defamation, internet publication and applicable law.
  2. In the UK the necessity for such an international convention arises for the following reason. Under English libel law, publication occurs at the place where the words are read by the person to whom it is published: Bata v Bata [1948] WN 366 (CA). Every person who publishes or causes to be published or participates in a publication is liable as a publisher. Each communication of a libel is a separate publication in respect of which a civil action may be brought: Duke of Brunswick v Harmer (1849) 14 QB 185. Accordingly, in the absence of a "single publication rule", such as obtains in the USA, the tort is committed whenever the libel is communicated (the multi-publication rule). Under this rule, where there is publication of a newspaper online, there will be a fresh tort whenever the libel is communicated to a reader with access to the website, and each occasion will constitute "the time of the tort" for the purpose of Article 7 of the draft Regulation. The Law Commission of England and Wales considered this recently in its Scoping Study No. 2 (December 2002) "Defamation and the Internet" and noted that "…the limitation period runs from each and every occasion on which a "hit" is made on a website. This means that where a newspaper is placed in an on-line archive, a libel action may be brought many years after its original publication, when it is difficult to mount a successful defence" (paragraph 1.6).
  3. The Law Commission of England and Wales, in the same study noted above, concluded (at paragraphs 3.23 and 3.24) as follows:

"There is a need to review the way in which the multiple publication rule interacts with the limitation period applying to archived material…[I]t is potentially unfair to defendants to allow actions to be brought against newspapers decades after the original publication, simply because copies have been placed in an archive. After a lapse of time, it may be extremely difficult to mount an effective defence, because records and witnesses are no longer available. We agree with the Court of Appeal [of England and Wales] that online archives have a social utility, and it would not be desirable to hinder their development.

Further consideration should be given to this issue, either through the adoption of a US style single publication rule, or through a more specific defence that would apply to archives, whether held online or in more traditional libraries".

  1. The Law Commission of England and Wales observed, in paragraph 1.16 of its paper Defamation and the Internet (Scoping Study No. 2, December 2002) that the problem of defamation over the Internet and the applicable law will only be resolved in a comprehensive and satisfactory manner by a new international treaty, accompanied by greater harmonisation of the substantive law of defamation.
  2. It is the harmonisation of online publishing with that of offline publishing which the Media regard as fundamentally important if free speech and legal certainty under Community law are adequately to be protected.

 

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[1] Associated Newspapers; European Publishers' Council (EPC); Independent Television News (ITN); Reuters PLC; the British Broadcasting Corporation (BBC); the Newspaper Society; the Periodical Publishers Association (PPA); the Publishers Association; and News International Limited (referred to collectively below as "the Media").

[2] Article 5 EC provides that "[t]he Community shall act within the limits of the powers conferred upon it by this Treaty and of the objectives assigned to it therein".

[3] See the similar analysis in relation to competence in the Opinion of Advocate General Fennelly in Case C-376/98 and C-74/99 Germany v Parliament and Council [2000] ECR I-8419, para. 131.

[4] Draft Regulation, Explanatory Memorandum para. 2.1, pp 4 and 6.

[5] Draft Regulation, Explanatory Memorandum para. 3, p. 18.

[6] See, further, North & Fawcett Private International Law (13th ed. 1999) para. 606-07.

[7] Case C-376/98 and C-74/99 Germany v Parliament and Council [2000] ECR I-8419, para. 84.

[8] Draft Regulation, Explanatory Memorandum para. 3, p. 17.

[9] Case 21/76 Handelswekerij GJ Bier v SA Mines de Potasse d'Alsace [1976] ECR 1735. The Commission should be aware that its explanation of the judgment of the ECJ in Bier at page 6 of the Explanatory Memorandum is misleading in that it refers to a choice of between the "place where the harmful event occurred or the place where the loss is sustained". The ECJ was careful in its judgment in Bier not to confuse "loss" with "damage" since loss is a separate concept which flows from the damage and might occur in many different places other than that where the damage occurred. The Advocate General in Case C-220/88 Dumez France [1990] ECR I-49, drew attention to the distinction which exists in principle between the place where the damage occurred, which court was identified in Bier as having jurisdiction, and the place where it was suffered, which court was not.

[10] New Shorter Oxford English Dictionary, Vol. 1, p.113, Vol. 2, p. 1973-1974.

[11] Case C-68/93 Shevill v Presse Alliance SA [1995] ECR I-415.

[12] A weblog (sometimes shortened to "blog" or written as "web log" or "Weblog") is a website of personal or non-commercial origin that uses a dated log format that is updated on a daily or very frequent basis with new information about a particular subject or range of subjects. The information can be written by the site owner, gleaned from other websites or other sources, or contributed by users.

[13] See Recital 18 of the Directive which emphasises the provision of information on-line at individual request whether or not the recipients of the information pay for it.

 

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