The author of this post is Marco Buzzoni, Research Fellow at the Max Planck Institute Luxembourg.
On 21 December 2021, the Grand Chamber of the Court of Justice of the European Union (“CJEU”) handed out its much-anticipated judgment in Case C-251/20, Gtflix Tv v DR (“Gtflix Tv”), a case dealing with the interpretation of Article 7(2) of the Brussels I bis Regulation in the context of torts committed through an online publication. In this decision, the Court confirmed that the so-called ‘mosaic approach’ to jurisdiction first established in Shevill applies to an action seeking compensation for the harm allegedly caused by the placement of disparaging comments on the internet. Departing from the Opinion of AG Hogan issued on 16 September 2021 (on the Opinion, see more here), the CJEU held that the courts of each Member State in which those comments are or were accessible have jurisdiction to hear the case, provided that the compensation sought is limited to the damage suffered within the Member State of the court seised.
Far from putting an end to doubts concerning the allocation of jurisdiction under Article 7(2) Brussels I bis, however, the CJEU’s decision in Gtflix Tv will most likely revive the debates on the need to update the current jurisdictional framework applicable to online torts.
Background of the Case
Gtflix Tv — a company established in the Czech Republic and specialised in the production and distribution of adult audiovisual content — brought an action for interim measures (référé) against DR — a director, producer and distributor of similar content domiciled in Hungary — before the President of the tribunal de grande instance de Lyon (Regional Court, Lyon, France).
Before that court, the plaintiff sought the rectification and removal of disparaging comments allegedly made by DR on several websites and forums, and asked for a symbolic compensation for the economic and non-material damage caused to its reputation. The court of first instance dismissed the action for lack of jurisdiction, and the plaintiff appealed this decision before the cour d’appel de Lyon (Court of Appeal, Lyon). On appeal, the plaintiff increased to EUR 10,000 the provisional sum claimed as compensation for the damage suffered in France. On 24 July 2018, however, the Court of Appeal confirmed the dismissal for lack of jurisdiction. The plaintiff subsequently filed an application against the judgment with the French Cour de cassation (Court of Cassation, France), contending that French courts had jurisdiction based on Article 7(2) Brussels I bis.
By a decision dated 13 May 2020 (on this decision, see more here), the Court of Cassation held that the French courts lacked jurisdiction to hear claims seeking the removal and the rectification of the allegedly disparaging statements published on the internet, in light of the CJEU’s judgment in Bolagsupplysningen and Ilsjan. As to the remaining claim for compensation, however, the French court wondered whether the same solution should apply, given the “necessary link of dependence” between this action and the request for rectification and withdrawal. Hence, the Court of Cassation decided to stay the proceedings and referred the following question to the CJEU:
“Must Article 7(2) [Brussels I bis] be interpreted as meaning that a person who, considering that his or her rights have been infringed by the dissemination of disparaging comments on the internet, brings proceedings not only for the rectification of data and the removal of content but also for compensation for the resulting non-material and economic damage, may claim, before the courts of each Member State in the territory of which content published online is or was accessible, compensation for the damage caused in the territory of that Member State, in accordance with the judgment of 25 October 2011, eDate Advertising and Others (C‑509/09 and C‑161/10, EU:C:2011:685, paras 51 and 52), or whether, pursuant to the judgment of 17 October 2017, Bolagsupplysningen and Ilsjan (C‑194/16, EU:C:2017:766, para 48), that person must make that application for compensation before the court with jurisdiction to order rectification of the information and removal of the disparaging comments?”
After a relatively lengthy summary of the general canons of interpretation that, according to the Grand Chamber, should guide the jurisdictional rules applicable to extra-contractual liability (paras 20-26), the Court began its decision by recalling the traditional solution according to which Article 7(2) grants jurisdiction to both the courts of the place “where the damage occurred and the place of the event giving rise to it” (para 27). The Court then underscored that the case at hand only required an assessment of whether the alleged damage occurred in France (para 28), and stated that, under existing precedent, parties who wish to vindicate violations of privacy and other personality rights through the internet (including defamation and harm to their commercial reputation) may either:
- bring an action before the courts of each Member State in which content placed online is or has been accessible and seek compensation only in respect of the damage caused in the Member State of the court seised (Shevill);
- seek compensation for all the damage allegedly suffered 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 plaintiff’s centre of interests is based (eDate Advertising); or
- apply for the rectification of incorrect information and the removal of disparaging comments affecting their reputation, but only before the courts competent to rule on the entirety of the damage (Bolagsupplysningen and Ilsjan).
Having thus set the stage for its decision (paras 29-33), the CJEU went on to reject the idea that the “necessary link of dependence” between these claims weighed in favour of the exclusive jurisdiction of the courts competent to rule on the entire damage (paras 34-40). In this respect, the Court held, first of all, that while applications for rectification of information and removal of content are single and indivisible in nature and may therefore warrant the concentration of jurisdiction upon a limited number of courts, no such justification exists for claims of compensation (para 35). Secondly, the Court dismissed the argument that a “necessary link of dependence” exists between applications for injunctive relief and actions for damages, as “their purpose, their cause and their divisibility are different, and there is therefore no legal necessity that they be examined jointly by a single court” (para 36). Thirdly, the Court considered that a concentration of jurisdiction would not always serve the interests of the sound administration of justice (paras 37-40).
Finally, the Grand Chamber concluded its decision by rejecting the argument formulated by AG Hogan according to which, should the Court uphold the mosaic approach to jurisdiction inaugurated in Shevill, the reference to the place where the damage occurred should only be interpreted to cover the Member States where the publication in question is concretely “directed”. Citing its decisions in Pinckney and Hejduk, the Court held, however, that the wording of Article 7(2) does not impose any additional condition regarding the determination of the competent court, and that such a restrictive approach could in some cases lead to the de facto exclusion of the option to bring proceedings before the courts of the place where the damage occurred.
Contrary to what a first reading of the judgment may suggest, the CJEU’s decision in Gtflix Tv does not simply uphold well-established solutions contained in the conspicuous body of case-law concerning the protection of privacy and personality rights. Indeed, a closer look at the Court’s reasoning reveals that the solution reached by the Grand Chamber was everything but a foregone conclusion.
Firstly, the CJEU’s reliance on its precedents largely ignores AG Hogan’s observation that “[u]nder French law, disparagement does not fall within the scope of infringement of rights relating to the personality” (para 96 of the AG’s Opinion) and that, therefore, the place where the damage occurred should have been determined having regard to the CJEU’s case-law issued in the area of infringement of economic rights. Rather than a mere reiteration of the mosaic approach to jurisdiction, the Grand Chamber’s decision in Gtflix Tv may therefore be regarded as an extension of it to an area of the law where this solution did not obviously apply and to a context, that of internet jurisdiction, that the Court in Shevill had not specifically addressed.
Secondly, the Grand Chamber’s emphasis on the plaintiff’s option to bring an action before the courts of any place where the damage occurred (see paras 39 and 42) stands in stark contrast with some of the CJEU’s most recent decisions under Article 7(2) (on this point, see in particular cases Case C‑800/19, Mittelbayerischer Verlag KG, and C‑709/19, Vereniging van Effectenbezitters, both stressing the need to ensure the predictability of the jurisdictional rule applicable to extra-contractual liability). In this respect, it is rather telling that the Grand Chamber’s summary of the relevant canons of interpretation applicable to Article 7(2) Brussels I bis conveniently omits the oft-cited principle according to which derogations from the general rule set out in Article 4 Brussels I bis should be interpreted restrictively. Undoubtedly, this factor would have nudged against the confirmation of the mosaic approach ultimately upheld by the CJUE.
Finally, the reasons put forward by the Grand Chamber to reject a narrower interpretation of the term “accessibility” favoured by the AG are rather unpersuasive. On the one hand, in fact, the Court’s comparison between the wording of Article 7(2) and Article 17(1)(c) Brussels I bis is quite unconvincing, given the overwhelming weight played by judge-made rules in the law of extra-contractual jurisdiction. On the other hand, the extension of the solution adopted in Pinckney and Hejduk seems especially ill-suited to disputes where, by contrast to cases involving of the protection of copyright, the principle of territoriality does not appear to be particularly pregnant.
All in all, the CJEU’s judgment in Gtflix Tv highlights the need to revisit the jurisdictional provision set out in Article 7(2) Brussels I bis, specifically — but by no means exclusively — with regards to disputes sitting at the intersection of internet jurisdiction and personality rights. Admittedly, legislative reform represents a more palatable solution than the piecemeal approach based on case-law when it comes to the specific challenges posed by the impact of new technologies in this area of the law. In this respect, it will therefore be interesting to see how the Grand Chamber’s decision will be received in the context of the recent initiative promoted by the EU Commission to protect journalists and civil society against SLAPPs, as well as within the broader framework of the upcoming recast of Brussels I bis Regulation.