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Francisco Pinto Balsemão
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Tel: +322 231 1299
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Heidi Lambert Communications
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News release

Media exclusion possible compromise to unblock Rome II deadlock: majority of member states remain split on forum shopping controversy

Contact: Angela Mills Wade, European Publishers Council, Tel: +44 1865 310 732 or Heidi Lambert, Tel: +44 1245 476 265

Wednesday 8 February 2024

Europe's publishers respond to today's Rome II developments

Following today's Coreper meeting on ROME II, and Commissioner Frattini's surprise announcement that the Commission's revised proposals, due next week, 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 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.

Today's 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.

EPC Executive Director Angela Mills Wade said: "We 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. We feel 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."

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

For further information, please contact Angela Mills-Wade on Tel: +44 1865 310 732 or Heidi Lambert on Tel: +44 1245 476 265.


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