The European Publishers’ Council (EPC) is 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 our members is attached.

A. Summary

The European Publishers Council welcomes this preliminary consultation by the European Commission on the “Rome II” proposal[1]. The text has been under discussion internally for at least two years now and we are pleased that those who may potentially be affected by such a proposal have now been invited to comment.

Although we welcome this opportunity, we would like to make it clear that we remain strongly opposed to such a Regulation. The Commission has not presented any accompanying studies demonstrating the need for such a proposal nor has it given any instances where a lack of a Community instrument has posed a problem. We would wish to see a thorough impact assessment and presentation of objective research before the Commission took any further steps towards producing a concrete proposal.  

One of the basic problems with the proposed Rome II regulation is that the traditional Private International Law (PIL) approach is fundamentally inconsistent with, and can never improve the proper functioning of the Internal Market. This proposal neither eliminates nor decreases the problems raised by a potential application of various, differing national laws on the same economic activity. Internal Market problems can only be resolved by Internal Market instruments, which work on the basis of country of origin control and mutual recognition.

The EU is committed to the creation of an internal market which benefits both suppliers and consumers alike. In addition, there is a considerable body of European and national consumer protection laws which the Commission is committed to updating with a general framework directive aimed at eliminating unfair and dishonest trading practices[2]. Furthermore, given that a consumer has the right to go to Court in his/her country of residence under the terms of the Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters, we can see no justifiable argument in favour of imposing county of residence as the natural choice of law for claims involving offline publication. While a consumer is only occasionally involved in an action before a Court against a supplier in another country, so only rarely has to examine a foreign law, under a country of habitual residence regime a publisher would have to apply all foreign bodies of law to every publication as a matter of general practice. This in our view is grossly disproportionate, will not deliver increased consumer protection and may constitute a violation of the fundamental right to the freedom of expression.

We wish to question the proposed legal base of Article 65 for 2 reasons: Firstly the proposals as presented so far do not attempt to improve the proper functioning of the internal market and secondly because Article 65 allows for only a limited consultation of the European Parliament. The Commission will remember the legitimate objections from the European Parliament caused by the lack of consultation of MEPs on the Brussels Regulation on Jurisdiction, a situation that we would not wish to see repeated particularly given the impending implementation of the Nice Treaty.

The most important areas in the consultation document for publishers are the provisions dealing with:

• The applicable law for unfair competition and unfair practices (Art. 6) and
• Defamation and violation of the right to privacy (Art. 7).

As regards unfair competition and practices the draft regulation points to the law of the country where the unfair competition affects competitive relationships or the collective interests of consumers, and for defamation and violation of privacy the applicable law is the one of the country in which the victim is habitually resident. Both of these are contrary to internal market principles which aim instead to subject a service and a service provider to only one law, his own; a country of residence or destination approach will merely maintain, or worse increase a fragmentation of the market, rather than providing further integration of benefit to business and consumers alike.

In the case of defamation specifically we reject the assertion by the Commission that the proposed harmonisation on choice of law merely regularises the status quo, in applying country of residence principle in all 15 Member States, with the exception of the dual actionability rule in the UK[3]. The victim is usually free to chose the law of the place where the damage was sustained and PIL generally points to the law of the country where the tort was committed which is not always the country of residence of the victim.

• If the European Commission insists on proceeding with a Rome II Regulation we would request the removal of clauses dealing with defamation and privacy from the scope of the directive unless subject only to the country of origin for both online and offline publication.
• Furthermore as these provisions could heavily impede commercial activities, the scope of any future Rome II regulation should be focused solely on the relationship between individuals outside any commercial context. If the Commission insists in pursuing a Regulation in this field, we call on the Commission to restrict the scope of application to claims between individuals in their private capacity and to exclude non-contractual obligations which arise in connection with commercial activities.

B. Article 23 – internal market directives

The draft text includes a “carve-out” (Art. 23 section 2) for the existing Internal Market Directives which contain a Country of Origin clause. We understand this to mean that the general rule contained in Article 3 - country where loss is sustained - may be overridden by existing Community rules on choice of law such as the eCommerce and the Television Without Frontiers Directives.

Notwithstanding our overall objection to the proposed Rome II Regulation in principle, and the possible objections of the Member States to this carve out, the EPC welcomes the inclusion of this article in recognition of the fact that such internal market Directives have contributed directly to increased cross-border trade and business confidence in Europe.

If the Commission continues with a Rome II proposal we request that this article be placed more prominently in the text and amended to make it clear that the conflict of law rules in the Rome II Regulation are subject to the internal market clauses in the eCommerce and Television without Frontiers Directives with regard to matters falling within the full coordinated field of these directives. This is essential in order to make it clear to the Member States that such a carve out forms an integral part of such a Regulation and that the wording is unambiguous with regard to its future applicability. Specifically we request the removal of the wording “in relation to particular matters” as this exposes publishers to widely differing interpretations by the Member States which ultimately cause distortions of the internal market.

C. Article 7 – Defamation and Privacy

Naturally the articles on defamation and privacy are of great significance to publishers.  The law of libel was written in the world of newspapers but newspaper, periodical and book publishers can all be exposed to defamation liability arising from print and now online publication. In the case of newspapers, articles are typically written by newspaper employees (journalists), but this liability exists even for letters to the editor, or paid-for advertisements. Publishers employ editors and lawyers whose responsibility it is to read through everything before publication and to check that the content is accurate and complies with laws governing the content, both editorial and advertising in the country of establishment. The publisher therefore exercises, or can exercise, some control over what it publishes, and because it exercises control, it makes some sense to hold it liable, but only according the laws of the country of publication. The same is true for web pages originated by publishers where country of origin is determined by the eCommerce Directive as the country of establishment of the Information Society Service Provider (which includes online publishing and advertising).

The proposed Rome II regulation however, infers a distinction between how the rules apply to online and offline publication through the proposed “carve out” for European Directives based on mutual recognition and the country of origin principle in Article 23(2). At the meeting of the Rome2Group on 9^th July 2002 the Commission confirmed that online and offline liability would be handled differently, stating that online defamation and privacy violations would be dealt with according to the rules of the country of origin. Such a distinction, although welcome for online publishing, is we suggest impossible to justify as more and more content is published simultaneously on web pages and in printed versions.

• Unless a Rome II regulation can introduce parity of treatment for material published offline as well as online - according to the rules of the country of origin, we request the removal of defamation liability and privacy clauses completely from the scope of the proposal.

It is impossible for an editor to check all the laws on defamation and privacy in such a great number of countries. This situation can only be made worse by the enlargement of the European Union up to 28 Member States. At the Rome2Group meeting (9^th July 2002) the Commission stated that for defamation, current Private International Law applies the country of residence principle in all 15 member states; the exception being the dual actionability rules which apply in the UK.

With the exception of the proposed removal of the dual actionability rules in the UK, the Commission said that the Regulation would merely codify an existing situation. In reality, the situation is much more complicated than the Commission suggested. In cases of cross-border press liability the loss cannot automatically be said to be sustained in the victim’s country of residence, especially if the number of copies of the publication available in the country of residence is very low or non existent. Generally, the victim is free to chose the law of the place where the damage was sustained and PIL generally points to the law of the country where the tort was committed which is not always the country of residence of the victim. Furthermore the Commission should note that defamation is, at least in some countries, subject to the criminal law therefore creating exceptional regimes within the EU and fragmenting the single market.

Laws on defamation and privacy vary significantly between member states. For example the French law on privacy is much stricter than UK law which could lead to injunctions being imposed from France on newspapers, books and periodicals published in the UK to prevent publication in printed form, whereas online publication would be judged according to the laws of the country of origin.  

The Commission should be aware that newspapers and magazines are produced for national markets – often aimed only at regional or local markets and are subject to the laws of these countries. Some of these titles are contemporaneously produced in more than one country but each edition, in each country, complies with the laws of the country of publication. There are very few exceptions to this and we would ask the Commission to take this aspect of publishing into consideration.

It is now technologically possible to produce more than one edition each day, in several different languages, for several different markets.  It is true that some newspapers and magazines physically cross borders in their original form – mainly for citizens of that country who find themselves outside their home country, but the percentage of these by comparison to their national circulation in their intended market, is so miniscule (on average between 1 and 2 % of newspapers are sold outside their home country).

Additionally the different rules for offline and online content will create the possibility for a choice of law for the complainant, but not the publisher. This acts against the policy of the European Union to be technologically neutral. As said above we welcome the carve-out in Article 23 for Internal Market Directives and in particular the country of origin rules contained in the eCommerce Directive for online content. However, allowing a plaintiff to claim a different applicable law depending on whether they read the document online or offline is ludicrous and the general rule of country of editorial control should always apply.

D. Unfair Competition

Article 6 relates to unfair competition and applies the law of the country where it is claimed that the unfair competition exists. At present the laws in EU member states vary widely particularly with regard to business claims. Until recently the German law stated that loyalty cards were an unfair business practice and thus banned non-German companies from using them in Germany. Such rulings go against the principle of mutual recognition as laid down in the Cassis de Dijon case (1979) and all subsequent cases in this regard, thereby eroding 23 years of European law and legal practice.

Additionally we note that an open debate about defining what constitutes fair trade has been launched by the Green Paper on Consumer Protection (COM(2001) 531 final) and is thus still under consideration following the launch of a follow-up consultation and so should not be pre-empted by an additional regulation at this stage (See Follow-up Communication to the Green Paper on EU Consumer Protection). We thus call on the Commission to withdraw this section as it introduces legal uncertainty for business.

E. Legal Basis – no role for the European Parliament

Until the Treaty of Nice comes into force, this proposal comes under Article 65 and demands unanimity in Council and the consultation, but not co-decision, of the European Parliament. This is regrettable as many MEPs are interested this proposal and would wish to make a greater contribution to the decision making process. We ask that the Commission takes note of the Parliament’s concerns which are the same as those expressed by MEPs when the Commission produced the draft Brussels Regulation on Jurisdiction.

F. Conclusion

• The European Publishers Council has severe reservations about the need for a Community instrument on applicable law and believes the proposed legal basis is unsafe.
• The Commission has not presented any accompanying studies demonstrating a need nor has it given any instances where a lack of a Community instrument has posed a problem.
• This proposal neither eliminates nor decreases the problems raised by a potential application of various, differing national laws on the same economic activity.
• The Commission should restrict the scope of application to claims between individuals in their private capacity and to exclude non-contractual obligations which arise in connection with commercial activities.
• Under a country of habitual residence regime a publisher would have to apply all EU bodies of law to every publication as a matter of general practice. This in our view is grossly disproportionate, will not deliver increased consumer protection and constitutes a violation of the fundamental right to the freedom of expression.
• We have highlighted the damaging and contradictory situation which may result from the application of different rules online and off-line for defamation and violations of privacy.  
• It is imperative that the Commission produces concrete research into existing cases and the potential impact of a new regulation before proceeding. Such guidelines for better regulation have recently been laid out in a series of Communications (COM(2002) 276 final) which we recommend should be followed before any future proposal is finalised.

13 September 2023