CJEU Rules on Jurisdiction in Violation of Personality Rights Claim, C-800/19
This post was written by Edyta Figura-Góralczyk, University of Economics in Kraków (Poland).
On 17 June 2021 the Court of Justice of the EU pronounced a judgment in case C‑800/19 Mittelbayerischer Verlag KG v. SM. At the time of writing this post, the text of the judgment was available only in Polish and French.
The preliminary question originates from a Court of Appeal in Warsaw and concerns jurisdictional rules for online infringements of personality rights according to Article 7(2) of the Brussels I bis Regulation. The opinion in this case was prepared by AG Bobek.
Comments concerning this judgments have already been posted by Tobias Lutzi and Geert van Calster. The case was also discussed on this blog by Marta Requejo Isidro.
Background
The plaintiff (SM) based the lawsuit on Polish material law – Article 23 and 24 of Polish Civil Code. The broad understanding of personality rights under those articles of Polish law causes qualification of the national identity and national dignity to be protected by such rights.
SM is a Polish national, lives in Poland and is a former prisoner of Auschwitz extermination camp during World War II. The online article was published by Mittelbayerischer Verlag KG, having the title: “Ein Kämpfer und sein zweites Leben” (The Warrior and His Second Life) in Germany on the website that was accessible in Poland. This article presented in German language the pre- and post-war life of Israel Offman, a Jew who survived the Holocaust. The online article included the statement that Israel Offman’s sister ‘was murdered in the Polish extermination camp Treblinka [(im polnischen Vernichtungslager Treblinka ermordet worden war)]’ instead of informing that she ‘was murdered in Nazi German extermination camp Treblinka’. SM belongs to group of former prisoners of Nazi German extermination camps. SM claims that the words ‘Polish extermination camp Treblinka’ that were used in online article instead of ‘Nazi German extermination camp’ infringed national identity and dignity of SM what according to Polish material law causes the infringement of personality rights.
Polish courts have already issued judgments in similar cases without having doubts about the basis for jurisdiction (here and here). However this time Court of Appeal in Warsaw raised the question, if Polish courts have jurisdiction in such cases on the basis of Article 7 (2) Brussels I bis Regulation.
Limits to ‘Centre of Life Interests’ – Article 7(2) of the Brussels I bis Regulation
The CJEU ruled in this case that Article 7(2) of the Brussels I bis Regulation:
should be interpreted in this way that the court in which jurisdiction is the centre of life interests of the person alleging infringement of its personality rights by the content published on the website, has jurisdiction to hear – with regard to all harm suffered and damages suffered – an action for damages brought by that person, only if the content contains objective and possible elements to be verified allowing for the direct or indirect individual identification of that person.
As already mentioned above, the case concerns the jurisdiction of the court of Member State based on ‘centre of life interests’ of the person that personality rights were infringed by the online publication (Article 7(2) of the Brussels I bis Regulation).
The CJEU already ruled the similar case – in eDate judgment and confirmed this judgment in Bolagsupplysningen. However, the specificity of the case C-800/19 is that the plaintiff (SM) is not addressed in person (name or surname) in the online article. On the contrary, in this case the plaintiff belongs to the group addressed in the article (the group of prisoners of Nazi German extermination camps). SM also has habitual residence in Poland. SM filed the lawsuit with claims that are ‘indivisible’ (e.g. the claim for publishing apology of the plaintiff for the false statement). In order to judge such claims the Polish court should have the jurisdiction based on the ‘centre of life interests’ according to Article 7 (2) Brussels I bis Regulation as it was introduced in eDate case.
According to the opinion of AG Bobek, the jurisdiction of the courts in such cases based on the ‘centre of life interests’ doesn’t require that the allegedly harmful online content names a particular person. However there should occur a close connection between that court and the action at issue, thus ensuring the sound administration of justice. On the contrary the Commission argued, in essence, that a person whose personal rights, according to its claim, would be infringed, should be able to bring an action before the court having jurisdiction in the centre of life interests, if this person was mentioned by name in the publication in question.
Moreover AG Bobek has proposed after AG Cruz Villalón in eDate opinion, the proportionality test that should clarify the jurisdiction in online infringements of personality rights.
The ‘centre of gravity’ test [should] to be composed of two cumulative elements, one focusing on the claimant and the other on the nature of the information at issue. The courts of a Member State would have jurisdiction only if that were the place of the claimant’s centre of interests and if ‘the information at issue [was] expressed in such a way that it may reasonably be predicted that that information is objectively relevant in [that Member State]’. (para 64 of AG Bobek opinion).
As a result of this test AG Bobek arrives at the following assessment:
indeed [it is] difficult to suggest that it would have been wholly unforeseeable to a publisher in Germany, posting online the phrase ‘the Polish extermination camp of Treblinka’, that somebody in Poland could take issues with such a statement. It was thus perhaps not inconceivable that ‘the place where the damage occurred’ as a result of that statement could be located within that territory, especially in view of the fact that that statement was published in a language that is widely understood beyond its national territory. Within that logic, while it is ultimately for the national court to examine all those issues, it is difficult to see how jurisdiction under Article 7(2) of Regulation No 1215/2012 could be axiomatically excluded. (para. 74 of AG Bobek opinion)
However CJEU in the discussed judgment didn’t follow the proposed centre of gravity test. The Court stated that the sound administration of justice requires such interpretation of basis of jurisdiction in Article 7(2) Brussels I bis Regulation that the centre of life interests is located in the country foreseeable for the defendant. This requires the clarification of the previous judgments of CJEU (e.g. eDate).
The CJEU introduced this clarification in such a way that the connection of the plaintiff with the alleged online material should be based on objective and verifiable elements that allow the person to be identified, directly or indirectly, individually. The CJEU stated in the analysed case that SM (plaintiff) was clearly not directly or indirectly identified individually in the content published on the Mittelbayerischer Verlag website. The plaintiff bases the claim of an infringement of its personal rights due to the fact that SM belongs to the Polish nation and was the prisoner of extermination camp. The CJEU states that in such a situation, there is no particularly close connection between the court in which area of jurisdiction lies the centre of the life interests of the person claiming infringement of the personality rights and the dispute in question (para 45). Therefore, that court does not have jurisdiction to hear all ‘indivisible’ dispute claims on the basis of Article 7(2) Brussels I bis Regulation.
Assessment
The CJEU limited the interpretation of ‘centre of life interests’ in Article 7(2) of the Brussels I bis Regulation by invoking that the online content should contain objective and possible elements to be verified allowing for the direct or indirect individual identification of the person infringed. However the CJEU didn’t limit the possibility to sue on the basis of jurisdiction from Article 7(2) in case of claims that may be ‘divided’ between the territories of the counties (mosaic principle) – e.g. the claim for compensation.
Generally, this judgment is a step forward to clarification of the broad basis for jurisdiction of ‘centre of life interests’ in case of online personality rights infringements. However the CJEU didn’t conduct the overall analysis but pronounced the sentence of the judgment based on the specificity of the analysed case.
The future will show how this criteria (the online content should contain objective and possible elements to be verified allowing for the direct or indirect individual identification of the person infringed) is to be applied further (e.g. in the pending Gtflix case).
As a side note, Gtflix is probably not going to add much to the ‘centre of interests’ prong of Art 7(2), as it seems to be entirely about ‘mosaic’ jurisdiction (which is in more dire need of reconsideration anyway).
Many thanks for your comment and for reading my post to the very end!
Indeed, the CJEU in Gtflix case which also concerns jurisdiction in online personality rights infringements will probably interpret further Art. 7 (2) Brussels I Recast Regulation and not the ‘centre of life interests’ itself. In this case French courts have the jurisdiction on the basis of ‘mosaic principle’ (Art. 7 (2) Brussels I Recast Regulation). However a part of the preliminary question in this case is the following: “whether, pursuant to the judgment in Svensk Handel (paragraph 48) (…) that person [a person who, considering that his or her rights have been infringed by the dissemination of derogatory comments on the internet] must make the application for compensation before the court with jurisdiction to order rectification of the information and removal of the derogatory comments?” This part of the preliminary question binds the case with the jurisdiction based on the ‘centre of life interests’ – Art. 7 (2) Brussels I Recast Regulation.
Best regards, Edyta Figura-Góralczyk
Very interesting posts and reply. However, one may underline that the center of interests doctrine is enhanced in this judgment. The problem lies on the identification of the alleged victim. Internet gives mass comunication to the masses. Acordingly, one may assume that anybody may sue anybody based of an information posted on a website… provided that the alleged victim has been directly or indirectly named or identified in the worngful content. Otherwise it will be contrary to legal predictability and legal certainty, specially for the defendant, i.e. the alleged tortfeasor… Consequently, all in all, the judgment seems to have been drafted taing into account the structure and features of the Internet Universe…. there where the rules are special, to say the least…. It is an Internet-orientated judgment which, in my humble opinion, should have been welcomed….
Isn’t the judgment internet-oriented simply because the ‘centre of interests’ is internet-oriented? The additional requirement of the victim being “directly or indirectly” identifiable does not strike me as inherently specific to internet cases.
I agree, though, that the decision enhances legal certainty – albeit through the introduction of an unfortunate new requirement (especially compared to the AG’s proposition).
Thank you for your interesting comment, Professor Carrascosa.
I also agree that the CJEU judgment strengthens legal predictability and legal certainty in cases concerning online violations of personality rights when jurisdiction is based on ‘centre of life interests’. However the criteria introduced by the CJEU are forced by the specificity of the analysed case. This specificity is not only Internet but also and primarily the fact that a member of a bigger group (like the group of former prisoners of Nazi extermination camps) is suing in the country of his ‘centre of life interests’.
Best regards, Edyta Figura-Góralczyk
Really ? The answer does not look as though it is given to a question about jurisdiction at all. One is tempted to suggest that the proposition that the personality rights of every person self-identifying as polish were trampled, contrary to law, by this ephemeral, provincial, publication, was itself absurd. If the European Court had been confident that the claim against the publisher would have been summarily dismissed on its substance by the Warsaw court, it might have been safe to accept, as seemed credible and in line with what had gone before, that the claimant might concentrate the claim in respect of internet publication at the centre of his relevant interests. But where there is no such confidence, yet the Court is alarmed at the vision before it, what else can it do but invent a jurisdictional quasi-rule and pretend that this the real answer ? Hard cases, bad law. Twas ever thus.
Many thanks for your interesting and inspiring comment, Professor Briggs.
As far as I understood it properly, I also agree with you that the CJEU judgment strengthens legal predictability and legal certainty in such cases.
I have only one remark concerning your statement ‘every person self-identifying as polish’. In this case the group is not so broad and it consists of ‘every person objectively being a former prisoner of Nazi extermination camp’.
Best regards, Edyta Figura-Góralczyk
Ah, thank you for that clarification: it is very helpful to understand the immediate context of the litigation. Even so, paragraph 8 of Mr Bobek’s Opinion explains that the potential scope of the civil claim is wider: he said:
According to the Polish Government, these rights can be infringed through individual attacks and through statements that concern a larger group of people, including the nation as a whole. In order to bring a claim based on such a statement, the claimant must demonstrate that he or she has been individually affected by the statement in question.
If the Court paid attention to this description of the cause of action relied on, I would still guess that they may have taken fright at the consequences of accepting the claimant’s analysis of the jurisdiction provision he relied on, even though that analysis did appear to conform to the court’s jurisprudence.