Compensation for damages resulting from online defamation can be claimed before the courts in each member state where the comments were accessible


Gtflix Tv v DR

Private international law: Jurisdiction

21 Dec 2023

The matter at hand

This case involves Gtflix Tv, a company in the Czech Republic, producing adult audiovisual content, and DR, a film director, who is domiciled in Hungary, who allegedly made derogatory comments about Gtflix Tv on various websites. After ginving DR formal notice to remove those comments, Gtflix Tv sought legal action for interim measures in France. Both the President of the tribunal de grande instance de Lyon (the Regional Court of Lyon, France) and the cour d’appel de Lyon (the Court of Appeal of Lyon, France) ruled they lacked jurisdiction on the ground that it is not sufficient that the infringing comments were accessible within France. These comments should, according to the French courts, also be of some interest to internet users residing in France and must be liable to cause damage in France.

Gtfix Tv objected to this decision and argued that if internet content is accessible in a Member State, the court of that Member State has jurisdiction over cases related to the damages caused by that content. The referring court determined that the French courts had no jurisdiction to hear the application for the removal of allegedly disparaging comments and the rectification of such comments. With reference to Bolagsupplysningen and Ilsjan (C-194/16), the referring court determined that only the courts in Czech Republic or Hungary were allowed to hear such claims. However, the referring court had doubts if this conclusion also had consequences for its jurisdiction regarding the compensation for non-material and economic damages resulting from these online disparaging comments, since the Court of Justice established in eDate Advertising (C-509/09 and C-161/10) that a party can claim such compensation before the courts of each Member State where the content was accessible.

In light of these uncertainties, the Cour de Cassation (the Court of Cassation, France) sought clarification on the question whether Article 7(2) of Brussel I bis must be interpreted as meaning that a person who seeks not only the rectification and the removal of allegedly disparaging comments on the internet but also compensation for damages, may claim damages before the court of each Member State where these comments were accessible and damages occurred, even though this court does not have jurisdiction to rule on the application for rectification and removal.

The judgment of the ECJ

The ECJ emphasizes that the rule of jurisdiction in matters of tort, delict of quasi-delict as mentioned in Article 7(2) of the Regulation 1215/2012, is based on the existence of a close connection between the dispute and the court where the harmful event occurred or may occur. The ECJ states: “The requirement of such a connection should ensure legal certainty and avoid the possibility of the defendant being sued in a court of a Member State which he or she could not reasonably have foreseen, which is important, in particular, in disputes concerning non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation” (paragraph 25 and Bolagsupplysningen and Ilsjan, C‑194/16). In such cases (i.e. in matters of tort, delict, or quasi-delict) the courts where the harmful event occurred or may occur are usually the most appropriate for deciding on the case.

The ECJ explains that a person harmed by online content can bring an action for liability in the courts of the Member State where the publisher is established or where the center of the claimant’s interests is based. Alternatively, the person can bring an action before the courts of each Member State where the content was accessible, but those courts have jurisdiction only for the damage caused in their own Member State (Advertising and Others C-509/10). In addition, the ECJ states that “That option is also available to a legal person which carries out an economic activity and seeks compensation for harm resulting from the damage to its commercial reputation caused by the publication of incorrect information concerning it on the internet and by a failure to remove comments relating to that person” (paragraph 31 and Bolagsupplysningen and Ilsjan, C‑194/16).

The ECJ rejects the idea of conferring exclusive jurisdiction to one specific court, emphasizing the distinct nature of applications for rectification and removal versus applications for compensation of damages. The ECJ asserts that a person can claim compensation for damages before the courts of each Member State where the comments were accessible, even if those courts lack jurisdiction for rectification and removal. The court underscores that this option is essential for ensuring the sound administration of justice, especially when the center of interests cannot be identified.

In conclusion, the ECJ interprets that “Article 7(2) of Regulation No 1215/2012 must be interpreted as meaning that a person who, considering that his or her rights have been infringed by the dissemination of disparaging comments concerning him or her on the internet, seeks not only the rectification of the information and the removal of the content placed online concerning him or her but also compensation for the damage resulting from that placement may claim, before the courts of each Member State in which those comments are or were accessible, compensation for the damage suffered in the Member State of the court seised, even though those courts do not have jurisdiction to rule on the application for rectification and removal.” (paragraph 43).

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