Delicts in EPIL

Structure of the seminar• Jurisdiction in matters relating to tort, delict or quasi-delict (Regulation

Brussels I)• Applicable law (Regulation Rome II)

???• A (a natural person domiciled in the Czech Republic) went to Austria for

skiing. On the slope A collided with B (a natural person domiciled in Italy). It was the fault of B. A suffered damage (broken leg, brain concussion, damaged ski and clothes). A wants the damages. Where A could sue B for damages?

??? • A person domiciled in a Member State shall be sued in the courts of that

Member State (Article 2)• Domicile of natural person – Article 59 – national law

• Article 5(3) – another option for the plaintiff where to sue in a matter relating to tort, delict or quasidelict

Article 5(3) • A person domiciled in a Member State may, in another Member State, be

sued in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur.

Matters relating to tort, delict or quasi-delict • 189/87 Athanasios Kalfelis v Bankhaus Schröder, Münchmeyer, Hengst and

Co. and others) Autonomous interpretation Covers all actions which seek to establish the liability of a defendant and

which are not related to a contract within the meaning of Article 5(1) Court which has jurisdiction under Article 5(3) over an action in so far as it

is based on tort or delict does not have jurisdiction over that action in so far as it is based on contract => Article 5(1) and 5(3) are strict alternatives

Matters relating to tort, delict or quasi-delict• Subjective and objective liability• Preventive actions (a preventive action brought by a consumer

protection organization for the purpose of preventing a trader from using terms considered to be unfair in contracts with private individuals (C-167/00 – Henkel)

• Traffic accidents, violation of personal rights, unfair competition, acts restraining free competition, product liability, environmental damage, infringement of intellectual property rights

• Culpa in contrahendo = pre-contractual liability (C- 334/00 Tacconi v. Wagner)

Place where the harmful event occured • 21/76 – Handelskwekerij G.J. Bier BV v Mines de potasse d´Alsace SA Place where the damage occurred Place of the event giving rise to damage

Damage • Financial loss, physical harm, moral harm (reputation, good name)• Primary (initial) damage x consequential (indirect) damage• C-220/88 Dumez a Tracoba v Hessische Landesbank Only primary damage is relevant for jurisdiction under Article 5(3)

Damage in several states• Damage of one person in several states (e.g. international defamation)• C-68/93 Fiona Shevill• Place of the event giving rise to the damage = place where the publisher

of the newspaper is established, since that is the place where the harmful event originated and from which the libel was issued and put into circulation -> jurisdiction to hear the action for damages for all the harm caused by the unlawful act (usually same as jurisdiction under Article 2)

• Injury caused by a defamatory publication to the honour, reputation and good name of a natural or legal person occurs in the places where the publication is distributed, when the victim is known in those places ->jurisdiction to rule on the injury caused in that state to the victim's reputation

Applicable law• Rome II Regulation Applicable by courts in all MS (except Denmark) Applicable to events giving rise to damage which occur after 11 January

2009 Nationality or residence of the persons not relevant Non-contractual obligations in civil and commercial matters (with cross-

border element) – material scope of Rome II and Article 5(3) of Brussels I corresponds (exception: non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation)

Rules of applicable law under Rome II• Article 14 – freedom of choice Agreement entered into after the event giving rise to the damage

occurred Where all the parties are pursuing a commercial activity, also by an

agreement freely negotiated before the event giving rise to the damage occurred

Choice of law is not possible concerning some non-contractual relations (infringement of intellectual property rights, unfair competition, acts restraining free competition)

Rules of applicable law under Rome II• Article 4 – general rule Law of the country in which the damage occurs irrespective of the country

in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur

Where the person claimed to be liable and the person sustaining damage both have their habitual residence in the same country at the time when the damage occurs, the law of that country shall apply

Rules of applicable law under Rome II• Articles 5 – 12 – special rules Product liability Unfair competition, acts restraining free competition Environmental damage Infringement of intellectual property rights Industrial action Unjust enrichment Negotiorum gestio Culpa in contrahendo

eDate Advertising• Factual background• Preliminary questions• Conclusion

Online defamation• „Internet never forgets.“• „Once something is available on the web, it is virtually being published

globally.“• Problem of traditional rules of private international law in cyberspace

• Freedom of speech vs. privacy rights

Online defamation• Defamation and Regulation Rome II

– non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation, are exluded

• Working Paper of the European Parliament• Harmonization of European choice-of-law rules

Online defamation• Proposed connecting factors

– habitual residence of the victim at the time of the tort– place in which the tort took place– place in which the damage occurs– place of the publisher’s establishment– law of the country to which the publication is principally directed– choice of the applicable law either by the parties or the judge – lex fori– „place of origin“ – European Data Protection Directice– to maintan the status quo

Rome II Regulation• violations of privacy and rights relating to personality, including

defamation are EXCLUDED– why?– Different position of national laws– revision

• Damaging information made available online (personal blogs, electronic newspaper) – consequences…

• Multiple and single publication rule

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What is the ‘multiple-publication’ rule?

• Duke of Brunswick v Harmer (1849) 14 QB 185 • “The effect of the multiple publication rule in relation to online material is

that each “hit” on a webpage creates a new publication, potentially giving rise to a separate cause of action, should it contain defamatory material. Each cause of action has its own limitation period that runs from the time at which the material is accessed.

• Government Consultation Paper: the Multiple Publication Rule CP20/09

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Competing ClaimsPublishers Claim: Good internet vs bad courts Exposure to limitless claims Endless jurisdictions Chilling effect European Convention on Human Rights

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The ‘defamed’ claim: Powerful internet Far-reaching effect Endless damage to reputation European Convention on

Human Rights

Multiple Publication Rule in Practice• Australia Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 Multiple actions? Rejected, abuse of process principle Endless jurisdictions? Rejected, plaintiff would have to show damage to

reputation in jurisdiction chosen/defendant would need assets in jurisdiction used

Archived material? Rejected, unlikely to be the subject of litigation

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Multiple/internet publication rule UK • Loutchansky v Times Newspapers Ltd (Nos 2-5) [2002] QB 783 • Times Newspapers Ltd (Nos 1 and 2) v United Kingdom [2009] EMLR 14 “… libel proceedings brought against a newspaper after a significant lapse

of time may well, in the absence of exceptional circumstances, give rise to a disproportionate interference with press freedom under Article 10.”

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Single Publication Rule – US 577A of the 2nd Restatement of Torts (197) Firth v State of New York (2002) 775 NE 2d 463 “…there would be a serious inhibitory effect on the open, pervasive

dissemination of information and ideas over the Internet which is, of course, its greatest beneficial promise.”

Does not apply in cases of substantial republication

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Copyright in the Internet era

Copyright in the Internet era• Lawrence Lessig, presentation on TED – On laws that choke creativity

Justifications for IPRs Why having property rights over intangible things..?• Natural rights: expression of personality or right over products of labour

(“The Philosophy of Intellectual Property” by J. Hughes, 77 Geo. L.J. 287)

• Reward for effort Too easy of a reward? There are other systems of reward

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• Incentive for creation and investment at an optimal level (“An economic analysis of copyright law” by W. Landes and R.Posner, 1989 Journal of Legal Studies 325)

- risk of market failure/ under-production- US Constitution: “exclusive right to promote the progress of science and

useful arts” Is there really a need for incentive? Are exclusive rights the right incentive? (cost) What incentive is optimal?- Lessig: “sufficient incentive is less than perfect control” Monetizing creativity.. Creators are not always the ones to benefit

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• Prevent free-ridding – “to reap where they have not sown” (trade marks)• Incentive for disclosure (patents) • Facilitate consumer decision (trade marks)

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Legal instruments • Berne Convention on the Protection of Literary and Artistic Works + Rome

Convention • WIPO Copyright Treaty + WIPO Performances and Phonograms Treaty • EU Copyright Directive

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Legal instruments • Regulation Rome II – Art. 8

1. The law applicable to a non-contractual obligation arising from an infringement of an intellectual property right shall be the law of the country for which protection is claimed.

2. In the case of a non-contractual obligation arising from an infringement of a unitary Community intellectual property right, the law applicable shall, for any question that is not governed by the relevant Community instrument, be the law of the country in which the act of infringement was committed.

3. The law applicable under this Article may not be derogated from by an agreement pursuant to Article 14.

Legal instruments • Brussels I Regulation – Arts. 5/1, 5/3, 22/4• The following courts shall have exclusive jurisdiction, regardless of

domicile:• in proceedings concerned with the registration or validity of patents, trade

marks, designs, or other similar rights required to be deposited or registered, the courts of the Member State in which the deposit or registration has been applied for, has taken place or is under the terms of a Community instrument or an international convention deemed to have taken place

Exceptions? – Justifications• Public interest• Common uses that would impose disproportional transaction costs• Users’ freedom of expression and information? Is there a conflict?- Copyright reflects balance: idea/expression, term of protection,

requirement of creativity Some restrictions reflect freedom of expression - e.g. Fair use in the US But have some rights gone one step too far?

* Source: Law and the Internet (L. Edwards and C. Waelde)

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Exceptions – types o Berne Convention Art. 9(2): 3-steps: o Exceptions only allowed in certain cases o No conflict with normal exploitation o No prejudice to the legitimate interests of the author

o EU Copyright Directive Art. 5 – several exceptions (not mandatory!), e.g.:o Private copying: reproductions for private use and for ends that are

neither directly or indirectly commercialo Libraries..

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ONLINE COPYRIGHT VIOLATIONS I: RAM COPIES • Every time you open a webpage your computer makes a copy in its RAM• This is a copy but it is exempted under article 5(1) of the Copyright

Directive

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ONLINE COPYRIHGT VIOLATIONS II: UPLOADING/STREAMING • Violation of communication right • E.g.: Danish IFPI case V.L. B-0292-07 (Western High Court) – user of file-

sharing network was found liable for violating communication right Norwegian case TFRED-2006-177576 (Court of First Instance Fredrikstad) – user found liable for making available illegal copy of a movie by creating a link on Piratebay

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What is different about the Internet? Free copies and distribution “In the digital world, life is subject to copyright law” (Lessig, in Code)It has facilitated the production and dissemination of user generated

content, “amateur culture”- But all this is subject to copyright law - Lessig: Fair use exceptions were structured to help build an intellectual and

cultural commons – non-commercial creativity was left free of regulation in the physical world

- Although for some, it has just allowed free consumptionDigital technologies could allow full control

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Calls for reform..Lessig: “resist perfect control over use”

Creative Commons

Compulsory licensing

Insist on the distinction between commercial and non-commercial uses

Perceive the Internet as a new form of distribution

Communication from the Commission: Copyright in the Knowledge Economy

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Privacy & IP Online: Paradoxes for Info-Flow

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The Tragedy of AnticommonsThe Tragedy of AnticommonsThe “Streisand” EffectThe “Streisand” Effect

Net infrastructure of decentralized exchange of abundant informationFree speech is embedded online – Ignoring this leads to paradoxes

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Thank you for your attention

PROJECT „THEORY – SKILL – EXPERIENCE“reg. No. CZ.1.07/2.2.00/15.0198, Operational Program Education for Competitiveness