In its recent judgment in Idziski, the Court of Justice of the European Union addressed the determination of the court having jurisdiction in a case concerning an alleged infringement of rights of personality resulting from the simultaneous dissemination of audiovisual content via television and the internet.

Although the main proceedings giving rise to the judgment did not directly concern media pluralism, the conclusions reached by the Court have a direct impact on journalists and media operators. Indeed, journalists are often the target of legal actions – including unfounded ones – brought with the aim of discouraging them from carrying out their professional activities. In this regard, it is worth noting that the period for implementation of the so-called Anti-SLAPP Directive has recently expired. That instrument seeks to protect persons engaged in public participation from manifestly unfounded claims and abusive court proceedings. The determination of the court having jurisdiction in defamation cases therefore has significant implications for the conditions under which freedom of expression and freedom of information may be exercised and, ultimately, for the protection of the Rule of Law and the values enshrined in Article 2 TEU.

In the case at hand, the referring court (the Polish Supreme Court) asked the Court of Justice to interpret Article 5(3) of Regulation No 44/2001 (the Brussels I Regulation, now replaced by Article 7(2) of Regulation No 1215/2012, the Brussels Ia Regulation), which confers jurisdiction on the courts for the place where the damage occurred. The request arose in connection with an allegedly defamatory television series that had been broadcast on television and simultaneously made available for streaming on the internet. The audiovisual content had been disseminated by a German company in Germany and Poland and allegedly harmed the reputation of a natural person habitually resident in Poland and of a Polish legal person. Those parties therefore brought proceedings before the Polish courts seeking compensation for the damage allegedly suffered.

The Court of Justice has repeatedly ruled on the determination of jurisdiction under Article 7(2) of Regulation No 1215/2012 in cases concerning infringements personality rights through modern means of communication. Its case law draws a clear distinction between defamation through printed press and defamation through internet. In the former scenario, the courts of the Member States in which the defamatory publication was distributed have jurisdiction as courts for the place where the damage occurred (CJEU, 7 March 1995, C-68/93, Shevill). However, those courts may adjudicate only on the damage suffered within their respective territories. In cases involving online defamation, the courts of the place where the defamatory content is accessible have competence to rule on the damage suffered in their own Member State. In addition, the courts of the Member State in which the injured party has his or her centre of interests have competence to adjudicate on the entirety of the damage caused by the defamatory conduct (CJEU, 25 October 2011, Joined Cases C-509/09 and C-161/10, eDate Advertising; CJEU, 21 December 2021, C-251/20, Gtflix).

In the judgment under discussion, the Court reaffirmed this strict distinction between online defamation and damage resulting from infringements of rights of personality committed through other means, including the dissemination of audiovisual content by television broadcasting. According to the Court, the jurisdiction of the courts of the injured party’s centre of interests in online defamation cases is justified by the ubiquity of content published on the internet. By contrast, where rights of personality are allegedly infringed through television broadcasting, the harmful effects remain territorially limited.

The Court further clarified that, where audiovisual content disseminated online contains objective and verifiable elements enabling the injured party to be identified, directly or indirectly, as an individual, the courts of the Member State in which that person has his or her centre of interests have jurisdiction to adjudicate on the entirety of the damage resulting from the online publication. In the present case, however, the television series did not make it possible to identify the applicants as specific individuals. Consequently, the Polish courts could not rely on the criterion of the centre of interests and were therefore competent only in respect of the damage suffered within Polish territory.

The conclusions reached by the Court appear to be driven by the objective of limiting jurisdiction based on the injured party’s centre of interests to infringements of rights of personality committed through the internet. In practice, this connecting factor tends to confer jurisdiction on the courts of the place where the claimant is habitually resident, thereby creating the risk of granting the claimant an additional procedural advantage beyond that already resulting from the decision to bring proceedings. Therefore, the Court has traditionally shown some reluctance towards solutions that come close to establishing a forum actoris. Nevertheless, the distinction drawn by the Court risks appearing somewhat artificial and, ultimately, adds a further element of rigidity to an already complex and evolving framework. Much like the EU private international law legislator, the Court seems to reason through increasingly narrow categories: online defamation, press defamation, and defamation through audiovisual content. Yet this approach sits uneasily with a communication environment that is becoming ever more integrated, in which the same content is frequently disseminated simultaneously through multiple channels. The result is a fragmented body of case law in which the pursuit of predictability in jurisdictional rules risks translating into increasing rigidity in their practical application.

 

(Comment by Pietro Campana)