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.
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.
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.
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 9th 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.
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 (9th 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 victims 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 Parliaments 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 |