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Council and Commission set to ignore Parliament majority vote on Privacy and Defamation Regulation: Media sector braces itself for constitutional row with the EU

Media and journalists' organisations, including the European Publishers Council (EPC), are bracing themselves for a ROME II regulation on applicable law to non-contractual obligations which will put them at the mercy of plaintiffs. Thanks to the Commission, anyone bringing a privacy or defamation case in the EU will be free to shop around from one Member State to the other seeking redress for local damages in multiple countries and according to different laws ­ according to where they think they will benefit most.

The next key meeting on this issue takes place at the Council Working Group meeting on 13 December ­ the last before the baton is passed to the Austrian Presidency who have already said they will give this matter priority.

Not only the Commission, but now also the Council looks set to ignore the European Parliament's significant majority vote at First Reading on an amendment to Article 6. The Parliament established that privacy and defamation cases would be judged "according to the applicable law of the country where the media is principally directed" or when this is impossible to determine, where the editorial decision is taken, for example in the case of international media. The EPC, along with other media and journalists' organisations, fully supported this compromise amendment which provides legal certainty whilst also respecting the rights of the victim and the freedom of the press.

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. Under cover of a mere "technical simplification" of rules related to applicable law, the Commission is forcing direct application of the earlier Brussels I Regulation (and it's article 5.3.) which already gives plaintiffs the option of choosing the jurisdiction. To mirror this option by automatically giving the plaintiff choice of law as well strikes at the heart of press freedom, going way beyond any "technical simplification". The EPC has been fighting instead to ensure that the law applied in such cross border cases should be closest to the point of editorial decision, thereby upholding press freedom and providing a balance of interests.

EPC Chairman, Francisco Pinto Balsemão said "In our view, the Commission's proposal puts at risk the freedom of the press as protected under the European Convention and the European Charter of Fundamental Rights. We have informed Commissioners Frattini and Reding that any intervention in this field could have a direct impact on press freedom and on the editorial content of the various media in the European Union. So far our concerns remain unanswered".

The EPC believes that unless the Parliament's democratically adopted amendment is accepted by the Member States, the media should be excluded from the scope of Rome II in order to uphold the freedom of expression in European media.

EPC Chairman, Francisco Pinto Balsemão explains: "The goal of this Regulation is supposedly Œto improve the forseeability of solutions regarding the applicable law to non-contractual obligations'. We are calling on the Commission to rethink its current proposal which favours the "law of the forum" as this dictates that a publisher, broadcaster or journalist will be at the constant threat of being sued under the law of various countries, despite having respected the law of their place of publication. This proposal will prevent media and journalists from publishing or broadcasting certain information because of the legal uncertainty which is an unacceptable limitation on the freedom of expression. Journalists and publishers cannot be expected to consider the laws of 25 different countries before going public with information and we question fundamentally the Commission's legal competence to step into the waters of press freedom in this way. I'd like to recall Commission Reding's clear statement from 2002 which unambiguously limits EU competence over the media to the proper functioning of the internal market. If the Commission remained true to their own internal market justification for this Regulation, they would follow the democratic vote of the European Parliament".

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