Accesibility of website establishes jurisdiction

C-441/13

Hejduk

Private international law: Jurisdiction

22 Jan 2015

The matter at hand

Ms Hejduk is a professional photographer of architecture from Austria and is the creator of photographic works depicting the buildings of the Austrian architect Georg W. Reinberg. The German company EnergieAgentur made those photographs available on its website for viewing and downloading without Ms Hejduk’s consent and without providing a statement of authorship. Taking the view that her copyright had been infringed by EnergieAgentur, Ms Hejduk brought an action before the Commercial Court in Vienna.

Ms Hejduk relied on 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 a person domiciled in a Member State may, in another Member State, be sued in matters relating to tort, delict or quasi-delict, in the courts for the place “where the harmful event occurred or may occur”. EnergieAgentur however argued that the Vienna Commercial Court lacked international and local jurisdiction, because its website is not directed at Austria and because the mere fact that it is possible that a website may be accessed from Austria is insufficient to confer jurisdiction on the Austrian judge.

The Commercial Court decided to ask the ECJ whether 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 must be interpreted as meaning that, in the event of an allegation of infringement of rights related to copyright which are guaranteed by the Member State of the court seised, that court has jurisdiction to hear an action for damages in respect of an infringement of those rights resulting from the placing of protected photographs online on a website accessible in its territorial jurisdiction.

The judgment of the ECJ

The ECJ reiterates that the special jurisdictional rule of Article 5(3) applies only by way of derogation from the general rule of jurisdiction laid down in Article 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 and attributing jurisdiction to the courts of the Member States in which the defendant is domiciled. It further holds that, ''the expression 'place where the harmful event occurred or may occur' in Article 5(3) is intended to cover both the place where the damage occurred and the place of the event giving rise to it, so that the defendant may be sued, at the option of the applicant, in the courts for either of those places'' (paragraph 18).

The ECJ also reiterates that in cases in which the alleged tort consists in the infringement of copyright by the placing of certain photographs online on a website without the photographer’s consent, the place where the event giving rise to the damage will be the place of activation of the process for the technical display of the photographs on that website, i.e. the place where the owner of the website took and carried out the decision to place the photographs online, in this case Germany (paragraphs 23-26).

However, given that in the main proceedings this place (Germany) does not attribute jurisdiction to the Commercial Court in Vienna, the ECJ secondly examines whether that court may have jurisdiction on the basis of the place where the alleged damage occurred. The ECJ considers that 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 ''does not require, in particular, that the activity concerned has to be ‘directed to’ the Member State in which the court seised is situated'' (paragraph 32). The ECJ then finds that ''The occurrence of damage and/or the likelihood of its occurrence arise from the accessibility in the Member State of the referring court, via the website of EnergieAgentur, of the photographs to which the rights relied on by Ms Hejduk pertain'' (paragraph 34).

Lastly, the ECJ reiterates (with reference to Pinckney, C-170/12) that, ''given that the protection of copyright and rights related to copyright granted by the Member State of the court seised is limited to the territory of that Member State, a court seised on the basis of the place where the alleged damage occurred has jurisdiction only to rule on the damage caused within that Member State.'' (paragraph 36).

Commentary

This decision seems to provide for an almost endless possibility for ‘forum shopping’ in copyright cases with regard to alleged online infringements. National courts will almost always be competent to hear a claim with the sole reservation that the measures sought can only apply to the country where the case is pending. If claiming full damages and the final shutting down of the service (in one hit) is the objective then the forum should be the court of the country of the defendant. In case this is not an attractive forum a favorable precedent could be obtained in any country where the alleged online infringement takes place (and results in a certain minimum of damage, point d'intérêt, point d'action). In our opinion this rule of competence that the ECJ established can also be invoked in actions on the basis of tort against online intermediaries (ISP’s).