The matter at hand

Bolagsupplysningen, a company incorporated under Estonian law, brought an action against Svensk Handel, a company incorporated under Swedish law, before the Harju Maakohus (Harju Court of First Instance, Estonia), for rectification of incorrect and damaging information published by Svensk Handel on its website, removal of that information and compensation in respect of all the damage suffered. The website and information in question were written entirely in the Swedish language and from the order for reference it appeared that Bolagsupplysningen, although incorporated under Estonian law, carried out the main part of its activities in Sweden.

In these circumstances, the referring court asked, in essence, whether the courts in Estonia have jurisdiction to hear the claims instituted by Bolagsupplysningen on the basis of Article 7(2) of Brussels ICouncil Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters recap (which is identical to Article 5(3) of Brussels ICouncil Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters), which provides that matters relating to tort may be brought in the courts for the place where the harmful event occurred or may occur. The referring court wondered in particular whether it could apply the judgment of the ECJ in eDate Advertising (C-509/09 and C-161/10) to the matter at hand, according to which, in the event of an alleged infringement of personality rights by means of content placed online on a website, the person who considers that his rights have been infringed must have the option of bringing an action for damages, in respect of all the harm caused, before the courts of the Member State in which the centre of his interests is based.

The judgment of the ECJ

The ECJ explains that the criterion of the ‘victim’s centre of interests’ laid down in the above mentioned case-law reflects the place where the damage caused by online material occurs most significantly, as “the alleged infringement is usually felt most keenly at the centre of interests of the relevant person, given the reputation enjoyed by him in that place” (paragraph 33). Consequently, the courts of the Member State in which the centre of interests of the person affected is located are best placed to assess the impact of such content on the rights of that person (paragraph 34). The criterion of the ‘victim’s centre of interests’ is, in other words, not designed for the purpose of offering the ‘victim’ stronger protection, but “to determine the place in which damage caused by online content occurs and, consequently, the Member State whose courts are best able to hear and to rule upon the dispute” (paragraph 39). For this reason, the question of whether the person harmed is a natural or legal person and of whether the damage suffered is material or non-material is irrelevant (paragraphs 36 and 38).

As to the identification of the centre of interests, the ECJ holds that the centre of interests of a legal person “must reflect the place where its commercial reputation is most firmly established and must, therefore, be determined by reference to the place where it carries out the main part of its economic activities” (paragraph 41). The location of its registered office is therefore not, in itself, a conclusive criterion. “Thus, when the relevant legal person carries out the main part of its activities in a Member State other than the one in which its registered office is located, as is the case in the main proceedings, it is necessary to assume that the commercial reputation of that legal person, which is liable to be affected by the publication at issue, is greater in that Member State than in any other and that, consequently, any injury to that reputation would be felt most keenly there” (paragraph 42).

On this basis, the ECJ rules that Article 7(2) Brussels ICouncil Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial mattersI recap “must be interpreted as meaning that a legal person claiming that its personality rights have been infringed by the publication of incorrect information concerning it on the internet and by a failure to remove comments relating to that person can bring an action for rectification of that information, removal of those comments and compensation in respect of all the damage sustained before the courts of the Member State in which its centre of interests is located”, to be determined by reference to the Member State where it carries out the main part of its economic activities (paragraph 44).

The referring court also asked whether a person claiming that his personality rights have been infringed by the online publication of incorrect information, can bring an action for rectification of that information and removal of those comments before the courts of each Member State in which the information published on the internet is or was accessible. The ECJ answers this question in the negative, considering that the courts of that Member State have jurisdiction only in respect of the harm caused in the territory of that Member State. “However, in the light of the ubiquitous nature of the information and content placed online on a website and the fact that the scope of their distribution is, in principle, universal (…), an application for the rectification of the former and the removal of the latter is a single and indivisible application and can, consequently, only be made before a court with jurisdiction to rule on the entirety of an application for compensation for damage (…) and not before a court that does not have jurisdiction to do so” (paragraph 49).