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Francisco Pinto Balsemão
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Impresa S.G.P.S.
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Tel: +351 21 392 9782
Fax: +351 21 392 9788
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Heidi Lambert Communications
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< back to issues: jurisdiction and applicable law

 

 

Issues

2003/0168 (COD) Proposal for a regulation of the European Parliament and the Council on the law applicable to non-contractual obligations (Rome II)

 

Lisbon, 18 June 2023

Mr Michael McDowell TD
Minister for Justice, Equality & Law Reform
Department of Justice, Equality & Law Reform
72-76 St. Stephen's Green
Dublin 2

 

As you know, I'm the Chairman of the European Publishers Council (EPC), a high level group of Chairmen and Chief Executives of leading European media corporations actively involved in multimedia markets spanning newspaper, magazine, Internet and on-line database publishing. Many EPC members also have significant interests in private television and radio. A list of members is attached.

We are concerned that the Commission and some of the Member State Governments have not understood the impact that this proposed piece of legislation could have on the freedom of the press in Europe.

We are aware that at Council level the debate in this area is still very much in progress. As representatives of Europe's leading media corporations we would like to reiterate our legal advice. There is no proven need for this regulation and - more specifically - the regime envisaged for the media in the Commission's proposal will only cause confusion and uncertainty for editors. Contrary to the stated aim of the proposal, this situation will damage the internal market rather than be of any benefit to it.

Legal basis

Debate at Council has highlighted the fact that several Member States still doubt the validity of the Commission's claim that this law is necessary to remove significant barriers to the better functioning of the internal market.

More importantly, the right to freedom of expression and information should not be affected by moves to harmonise the internal market. The European Union has no competence to control the content of the media. Market harmonisation should not take precedence over fundamental rights.

The best solution

The EPC believes strongly that in order to protect freedom of expression, the Swedish Government's suggestion for an amendment to Article 1 would be the most appropriate solution. It is as follows:

1.2 The following are excluded from the scope of this regulation:

g. non-contractual obligations arising from the use of the freedom of expression and freedom of the press

The rules relating to privacy in articles 6 and 10 of the European Convention on Human Rights, particularly Article 10.2, cover more than adequately the need to protect the 'reputation or rights of others' and negate the need for further legislation in this area.

If this addition were made to Article 1, Article 6 could then be deleted. Given the concerns of many Member States that too many exceptions to the general rule create ambiguity, this solution would improve the quality of the regulation as a whole.

Other options (Modification of Article 6)

Although we challenge the validity of the inclusion of media content in the scope of the regulation, we are aware that there is some opinion in Council to the contrary.

If a case can be made by a majority of Council Members to justify the inclusion of special rules relating to defamation and privacy rights in the scope of the regulation, Article 6 should be modified to ensure legal certainty for both publishers and plaintiffs in such cases.

Since Article 3 of the regulation will always be 'contrary to the fundamental principles of freedom of expression and information' (Article 6.1), a general exclusion from Article 3 and the inclusion in Article 6 of the country of origin principle as the rule applicable to all defamation and privacy cases would be an adequate solution.

The majority of those Member States who have given an opinion in this area put forward the solution of applying the law of the country from where the damage originated. In other words, the country of establishment (or editorial control) of the publisher (country of origin) rules should be the applicable law. Given that this piece of legislation has been presented as an internal market solution, this would seem the most sensible approach, as the country of origin principle is a cornerstone of the internal market philosophy.

Finally, given that the country of establishment is the principle used in Article 6.2, consistency is guaranteed by the change to Article 6.1.

Equal treatment for online and offline publications

The EPC calls on the Council to give equal treatment to both online and offline publications. Under the present proposal an article published in both the print media and online would be subject to two separate approaches - country of residence for the plaintiff in print media cases and country of establishment of the publisher in online cases.

If all publications were subject to one regime - the country of establishment of the publisher - the Commission's aim of increased legal certainty would be met. There is also logic in applying a solution which is consistent with other legislation relating to the provision of media services. The country of establishment principle applies to the eCommerce directive and to the TV without Frontiers directive - both major pieces of legislation relating to the free flow of the media within the internal market.

Conclusion

  • The European Publishers Council challenges the need for a regulation on the Rome Convention;
  • The European Publishers Council challenges the competence of the Commission to include media content issues in an internal market measure;
  • The European Publishers Council calls for an immediate exclusion from the scope of the proposal of non-contractual obligations arising from the use of the freedom of expression and freedom of the press;
  • The European Publishers Council could accept inclusion in the scope of the regulation only in the following circumstances:
    • Article 6 is amended to make it clear that the general rule (Article 3) does not apply to defamation cases;
    • Article 6 is amended to make clear that the law applicable to defamation cases is that of the country of establishment of the publisher;
    • Online and offline publications are given parity of treatment within the regulation.

The European Publishers Council hopes that the Council and Commission will take the opportunity to produce an effective piece of legislation which benefits the internal market. This can only be achieved by giving careful consideration to the legitimate concerns of stakeholders and making legislation workable for business.

 

FRANCISCO PINTO BALSEMÃO

cc. Commissioners Reding, Monti and Bolkestein

 

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