Original URL: http://www.theregister.co.uk/2011/10/26/sunday_mirror_loses_bid_to_overturn_oliver_martinez_privacy_ruling/

Sunday Mirror must face Kylie's ex-lover in France privacy case

ECJ: Internet publishers liable wherever material is accessible

By OUT-LAW.COM

Posted in Law, 26th October 2011 09:01 GMT

Individuals can sue internet publishers in each country in which they believe their image has been harmed as a result of content posted online, the European Court of Justice (ECJ) has ruled.

Publishers, though, should not be subject to stricter laws than would apply if the court action was taking place in the country in which they are based.

The ECJ ruled in two joined cases from France and Germany in which media outlets were sued over alleged breaches of people's right to privacy and their "personality rights".

The French case involved French actor Olivier Martinez who had sued the UK's Sunday Mirror in a French court over a story about his relationship with Australian singer Kylie Minogue.

The ruling related to "personality rights", which do not exist in all EU countries. There are no "personality rights" in UK law.

The ECJ said that the subjects of stories could sue publishers either in the countries in which their image had been damaged or in the country where the person's "centre of interests" is based. In each case the courts would have to apply no stricter laws than would have applied in the publisher's home courts, it said.

"In the event of an alleged infringement of personality rights by means of content placed online on an internet website, the person who considers that his rights have been infringed has the option of bringing an action for liability, in respect of all the damage caused, either before the courts of the member state in which the publisher of that content is established or before the courts of the member state in which the centre of his interests is based," the ECJ said in its ruling.

"That person may also, instead of an action for liability in respect of all the damage caused, bring his action before the courts of each member state in the territory of which content placed online is or has been accessible," it said.

"Member states must ensure that [generally]... the provider of an electronic commerce service is not made subject to stricter requirements than those provided for by the substantive law applicable in the member state in which that service provider is established," the ECJ ruled.

The French court is considering whether it has jurisdiction to rule on the publication of a story about French actor Olivier Martinez who is claiming the Sunday Mirror in the UK infringed his rights to a private life as well as his rights to his image when it published a story about him allegedly rekindling his relationship with Australian singer Kylie Minogue in 2008.

The ECJ assessed EU laws on the jurisdictional rights of individuals to take court action and EU laws that generally seek to avoid member states "restrict[ing] the freedom" of "information service providers" in other member states.

Under the EU's Brussels Regulations publishers can only generally be sued in the courts of the country in which they are based, regardless of nationality, apart from in certain circumstances. Those circumstances include "in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur".

The ECJ said that the regulations, together with previous case law, should be interpreted as allowing individuals the right to sue for harm to their image over online content in a centralised lawsuit in a country that is not their own because publishers should "reasonably foresee" that that country is where the "centre of [the individuals'] interests" are. Individuals should also have the option to sue in separate countries where they believe the allegedly infringing material was accessible, it said.

"The place where a person has the centre of his interests corresponds in general to his habitual residence," the ECJ said. "However, a person may also have the centre of his interests in a member state in which he does not habitually reside, in so far as other factors, such as the pursuit of a professional activity, may establish the existence of a particularly close link with that state."

"The jurisdiction of the court of the place where the alleged victim has the centre of his interests is in accordance with the aim of predictability of the rules governing jurisdiction also with regard to the defendant, given that the publisher of harmful content is, at the time at which that content is placed online, in a position to know the centres of interests of the persons who are the subject of that content," the ruling said.

"The view must therefore be taken that the centre-of-interests criterion allows both the applicant easily to identify the court in which he may sue and the defendant reasonably to foresee before which court he may be sued," the ECJ said.

The ECJ said that "stricter" legal standards should not be applied in countries where online content was accessible than in the country where the publisher is based.

Under the EU's E-Commerce Directive, EU member states must generally ensure that the legal systems they operate affecting "information society service providers", such as online publishers, do not "restrict the freedom" of foreign-based publishers to make "information society services" available in their country unless under certain exceptions, which include to prevent, investigate, detect and prosecute criminal offences.

The ECJ said that because publishers freedoms were not "fully guaranteed" by the legal systems in all member states they should not be subject to "stricter" legal standards in court cases than they would be in the country in which they are based.

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