Time to Test the Center-of-Interest Connecting Factor. ‘Violeta Friedman’ from the Standpoint of Article 7(2) Brussels I Bis Regulation

This post is addressed, in particular, to my fellow colleagues of the ILA Committee Committee on the Protection of Privacy in Private International and Procedural Law; may we meet this year, in person.

Violeta Friedman (1930–2000) was a Jewish Holocaust survivor born in Marghita, Transylvania, Romania. She became well-known in Spain thanks to a ruling of the Constitutional Court (STC 214/1991 – aka the ‘Violeta Friedman case’) on the fundamental right to honor.

Violeta Friedman was deported in 1944 to the Auschwitz-Birkenau concentration camp, at the age of fourteen. She lost most of her family to the Nazis. After the  War she lived in Canada and in Venezuela; in 1965 she moved to Spain with her daughter.

In 1985, feeling outraged by statements made by the former head of the Waffen SS L. Degrelle to a Spanish journal, where he denied the Holocaust and voiced anti-Semitic and racist opinions, she started civil proceedings in Spain against him, the journalist signing the report, and the editor of the journal. After several unfavorable decisions of the ordinary courts, the Constitutional Court of Spain confirmed her legal standing to sue in 1991, based on ‘her dual condition, as a citizen of a people such as the Jews, who suffered an authentic genocide by National Socialism, and as a descendant of her parents, maternal grandparents and great-grandmother (all of whom were murdered in the aforementioned concentration camp)’. Most relevant, just before this assertion the Court had said that

It is considered as original legal standing that of a member of a specific ethnic or social group, when the offense is directed against that entire group in such a way that, by belittling said group, it tends to provoke feelings from the rest of the social community hostile or, at least, contrary to the dignity, personal esteem or respect to which all citizens are entitled.

The Constitutional Court also found that Degrelle’s assertions amounted to a violation of the right to honor of Violeta Friedman and the victims of Nazi camps. This ruling served as a precedent for the reform of the Spanish Criminal Code.

Violeta Friedman’s claim was never contested on the basis of lack of international jurisdiction of the Spanish courts. L. Degrelle was present in Spain when he was interviewed, and there appears to have been no discussion about his domicile there at the time the court was seized; the same applies to the co-defendants. Degrelle’s anti-Semitic assertions were printed in a Spanish magazine, and distributed mainly in Spain. It could be argued that, even if the case involved a foreign element to some extent, it affected the claimant’s side and did not trigger doubts related to the international jurisdiction under the applicable rules.

40 years later, one can safely take for granted that the declarations of Degrelle would be on the net, largely accessible. Violeta Friedman could have read them at home in Madrid; other survivors of a concentration camp, at home as well, in Bucharest or in Paris – just to name a couple of places. For the sake of the argument, let’s assume that the publisher has its seat in Germany and the online newspaper is published in German on a website ending ‘.de’. Would the Spanish (Romanian, French, etc) courts still have jurisdiction for a claim like hers?

In fact, there is no need to assume anything. A preliminary reference currently pending before the Court of Justice, which has so far, to the best of my knowledge, remain unnoticed, will provide for an answer in due course. Case C-800/19 relates to a dispute between SM, a Polish national living in Warsaw, and Mittelbayerischer Verlag KG, a German company which publishes a daily journal in German on the http://www.mittelbayerische.de website. The newspaper is regional in nature but may be accessed from other countries, including Poland.

SM was a prisoner in Auschwitz during the Second World War; today, he is involved in activities aimed at preserving, in the public consciousness, the memory of the victims of crimes committed by Nazi Germany against Poles during the Second World War. On 15 April 2017, an article entitled ‘Ein Kämpfer und sein zweites Leben’ was published on http://www.mittelbayerische.de. At some point, the sentence ‘was murdered in the Polish extermination camp of Treblinka’ (italics added) appeared in the text. The phrase remained on the website for only a few hours on 15 April 2017. After an e-mail by the Polish consulate in Munich, the phrase in question was replaced with ‘was murdered by the Nazis in the German Nazi extermination camp of Treblinka in occupied Poland’, thus reflecting the historical fact that the camp in Treblinka was a German Nazi extermination camp established during the Second World War within the territory of occupied Poland.

SM lodged an application against Mittelbayerischer Verlag KG with the Regional Court of Warsaw on 27 November 2017, requesting that his personality rights, in particular national identity and national dignity, be protected by:

–   prohibiting the defendant from disseminating in any way the terms ‘Polish extermination camp’ or ‘Polish concentration camp’ in German or any other language in relation to German concentration camps located within the territory of occupied Poland during the Second World War;

–   ordering the defendant to publish on its website a statement with the content specified in the application, apologising to the applicant for the infringement of his personality rights caused by the online publication of 15 April 2017, which suggested that the extermination camp in Treblinka was built and operated by Poles;

–  ordering the defendant to pay the amount of PLN 50 000 to the Polski Związek Byłych Więźniów Politycznych Hitlerowskich Więzień i Obozów Koncentracyjnych (Polish Association of Former Political Prisoners of Nazi Prisons and Concentration Camps).

To justify the jurisdiction of the Polish court, the applicant relied on the judgment of the Court of Justice in eDate Advertising and Martinez (Joined Cases C-509/09 and C-161/10).

The defendant filed a motion for dismissal of the action on the ground that Polish courts lack jurisdiction. He stresses that, unlike the situation in Joined Cases C-509/09 and C-161/10, the online article which became the basis for SM’s action did not directly concern the applicant. The defendant also emphasises its regional profile and readership range, as its reporting covers the Upper Palatinate, Bavaria and focuses primarily on regional news; the heading ‘Germany and the World’ is only in fourth place on the page menu. He also points out that the website exists solely in a German-language version. All in all, the defendant relies on the requirement that jurisdiction under Article 7(2) of the Brussels Ibis Regulation must be predictable and claims that, operating on a local scale and addressing its message to recipients who do not include the applicant, he could not have objectively foreseen the jurisdiction of Polish courts.

The case reached the Court of Appeal of Warsaw, First Civil Division, which has addressed the following questions to the Court of Justice:

1. Should Article 7(2) of Regulation (EU) No 1215/2012 […] be interpreted as meaning that jurisdiction based on the centre-of-interests connecting factor is applicable to an action brought by a natural person for the protection of his personality rights in a case where the online publication cited as infringing those rights does not contain information relating directly or indirectly to that particular natural person, but contains, rather, information or statements suggesting reprehensible actions by the community to which the applicant belongs (in the circumstances of the case at hand: his nation), which the applicant regards as amounting to an infringement of his personality rights?
2. In a case concerning the protection of material and non-material personality rights against online infringement, is it necessary, when assessing the grounds of jurisdiction set out in Article 7(2) of Regulation No 1215/2012 […], that is to say, when assessing whether a national court is the court for the place where the harmful event occurred or may occur, to take account of circumstances such as:

– the public to whom the website on which the infringement occurred is principally addressed;

– the language of the website and in which the publication in question is written;

– the period during which the online information in question remained accessible to the public;

– the individual circumstances of the applicant, such as the applicant’s wartime experiences and his current social activism, which are invoked in the present case as justification for the applicant’s special right to oppose, by way of judicial proceedings, the dissemination of allegations made against the community to which the applicant belongs?

At point 16 of the request, the referring court states

At the present stage of the main proceedings, no consideration may be given to the substantive law applicable to the assessment of the claims submitted and the Sąd Apelacyjny (Court of Appeal) is even less able to consider whether those claims have merit under the substantive law and whether the applicant is entitled to make them.

I am not sure one can split the decision on legal standing and the one on international jurisdiction when the latter requires identifying the center of interest of the victim. In any event, and not only for this: a preliminary reference which deserves to be followed.