On 13 May 2020, the French Supreme Court for private and criminal matters (Cour de cassation) issued an interesting decision on jurisdiction based on Article 7(2) of the Brussels I bis Regulation in case of online defamation (here).
The French Court implemented the Bolagsupplysningen and Ilsjan Case ruled by the Court of Justice of the European Union (CJEU) in 2017, but also asked for clarification on its scope of application to the CJEU (here).
A Czech company, Gtflix Tv, content producer and distributor, sued a film director and distributor, MX, domiciled in Hungary, before French court for unfair competition resulting from online defamation. The company accused MX of having used insulting language against itself and its website materiel on different online forums and websites. Therefore, the company asked for the removal and rectification of the defaming contents as well as for financial compensation. According to it, French jurisdiction should arise under Article 7(2) of the Brussels I bis Regulation, since French viewers are the main audience. MX opposed a lack of international jurisdiction. The Court of Appeal of Lyon followed the latter position and dismissed the demand. Gtflix Tv appealed to the Supreme Court.
Issue at Stake
The legal issue submitted to the French Supreme Court was therefore to determine if any relevant connecting factors pursuant Article 7(2) of the Brussels I bis Regulation, as interpreted by the CJEU, could assert the French jurisdiction.
The application of Article 7(2) of the Brussels I bis Regulation (corresponding to Article 5(3) of the Brussels I Regulation) regarding online defamation matters is not a new issue. In the eDate Case on online infringements of personality rights, the CJEU held that the victim 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”. In addition, the Court of justice also admitted that the victim could bring “his action before the courts of each Member State in the territory of which content placed online is or has been accessible” but “only in respect of the damage caused in the territory of the Member State of the court seised”.
Then, this acquis was partially extended by the Bolagsupplysningen and Ilsjan Case to infringements related to online publication of incorrect information and failure to remove comments. On the one hand, the CJEU ruled, by analogy, that the victim could bring an action for rectification and removal of the contested comments and for compensation in respect of all the damage sustained “before the courts of the Member State in which its centre of interests is located”. On the other hand, the CJEU refused to distribute the jurisdiction between “the courts of each Member State in which the information published on the internet was accessible” to rule on rectification and removal of the comments. It is worth noting that the Court of Justice left out the claim for damages.
Response of the French Supreme Court and Preliminary Reference to the CJEU
In the present case, the French Supreme Court applied, by analogy, the Bolagsupplysningen acquis to the unfair competition claim, following publication on the Internet of defaming information against Gtflix TV and failure to remove comments. Since France is not the Member State in which the victim has its centre of the interests under Article 7(2) of the Brussels I bis Regulation (the Czech Republic is), nor the Member State in which the defendant, MX, is domiciled pursuant Article 4, French courts have no competent jurisdiction to hear this part of the case. However, according to the French Supreme Court, the question of jurisdiction for financial compensation remains unclear (for other national judgements on this issue, see the post of Geert Van Calster on Gtflix Tv). Should the Bolagsupplysningen interpretation be extended to that additional issue and exclude the distribution of jurisdiction based on the different places where the information published on the Internet is accessible? Or, on the contrary, should the eDate alternative in favour of the fragmentation of jurisdiction remain applicable? Following the latter solution, French courts could indeed have a partial jurisdiction.
This is the question referred by the French Supreme Court to the CJEU.
As encouraged by the CJEU in its Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings, the French Supreme Court sketched out a response. Considering the proper administration of justice, it took position in favour of an extension of the Bolagsupplysningen ruling. The competent jurisdiction for ruling on rectification and removal of online comments under Article 7(2) of the Brussels I bis Regulation should have an exclusive jurisdiction to rule on damages, because of the obvious connection between the two actions.
This solution would make online defamation claims much easier and more predictable. And it would contribute to adapt the European jurisdictional rules to the transnational digital area.