Where do things happen online? This is the eternal question
of Internet regulation. While we like to think of the Internet as a global
medium, increasingly we are faced with a regulatory clampdown and real-world
solutions to online incidents. The latest decision dealing with online
jurisdiction comes in the shape of Bolagsupplysningen OÜ and Ingrid Ilsjan v
Svensk Handel AB (Case C-194/16), an online defamation case.
The case involves Svensk Handel, the Swedish trade federation of the
commercial sector, and the Estonian company Bolagsupplysningen,
which offers corporate search services and conducts its business mostly
in Sweden. One of Svensk Handel’s functions is to provide consumer information
with regards to dubious commercial practices, and it lists several websites
that engage in potentially damaging and/or fraudulent practices. Svensk Handel
has an entry on Bolagsupplysningen (still live at the time of
writing), which warns users that the Estonian company sends out incorrect
address forms to its customers, which when sent back contains a clause to sign
up for a business subscription. The page has comments open (over 1,600 at the
time of writing), most of them of consumers criticising the Estonian company
and offering their own experiences.
Bolagsupplysningen sued Svensk Handel in an Estonian court
for defamation, alleging that both the information on the page and the comments
were defamatory. They claim that the comments were filled with insults and even
death threats to its employees. The Estonian court at first instance rejected
the claim because the page was published in Sweden and it was in Swedish, so no
damage could be established in Estonia; furthermore the fact that the content
had been published in Estonia via the Internet did not automatically justify an
obligation to bring a case before an Estonian court. The case was appealed, and
the Talinn Court of Appeal sided with the first ruling. The decision was then
appealed to the Estonian Supreme Court, which decided to stay the proceedings and
referred three questions to the CJEU.
- Can a legal person sue for the entire harm caused by
infringing comments online in the country where the information was accessible? - Can a legal person sue for the entire harm caused by
infringing comments online in the country where the that person has its centre
of interest? - In case question 2 is affirmative, in which jurisdiction
could the injured person seek remedies?
The CJEU answers the first question quickly in the negative
by ruling that a person ‘cannot bring an action for rectification of that
information and removal of those comments before the courts of each Member
State in which the information published on the internet is or was accessible.’
This is the most logical conclusion, as a positive answer would have opened the
floodgates to online defamation suits in all Member States with no other
connection than the fact that some information was published online. That way
madness lies.
The Court merged the second and third questions, and delved
on the underlying legal issue in more detail. The Court posed the legal
question thus:
‘…a legal person claiming that its personality rights have
been infringed by the publication of incorrect information concerning it on the
internet and by a failure to remove comments relating to that person can bring
an action for rectification of that information, removal of those comments and
compensation in respect of all the damage sustained before the courts of the
Member State in which its centre of interests is located and, if that is the
case, what are the criteria and the circumstances to be taken into account to
determine that centre of interests.’
The previous authority on this subject from the CJEU had been
eDate Advertising and Others (C-509/09 and C-161/10), in which it was decided
that the main consideration when it came to online jurisdiction for
a tort, delict or quasi-delict was to bring an action where the
harmful event had taken place, or will take place. The Court in Svensk Handel was
clear that this should be interpreted broadly, and commented that this can be
deemed to be the same place where the person resides, as this is where the most
harm would be likely to occur, taking into account that the damage will be ‘felt
most keenly at the centre of interests of the relevant person, given the
reputation enjoyed by him in that place’ (at [33]). The Court explains this
reasoning further (at [42]):
‘Thus, when the relevant legal person carries out the main
part of its activities in a Member State other than the one in which its
registered office is located, as is the case in the main proceedings, it is
necessary to assume that the commercial reputation of that legal person, which
is liable to be affected by the publication at issue, is greater in that Member
State than in any other and that, consequently, any injury to that reputation
would be felt most keenly there. To that extent, the courts of that Member
State are best placed to assess the existence and the potential scope of that
alleged injury, particularly given that, in the present instance, the cause of
the injury is the publication of information and comments that are allegedly
incorrect or defamatory on a professional site managed in the Member State in
which the relevant legal person carries out the main part of its activities and
that are, bearing in mind the language in which they are written, intended, for
the most part, to be understood by people living in that Member State.’
The Court then answers the referred questions (at [44]):
‘The answer to the second and third questions therefore is
that Article 7(2) of Regulation No 1215/2012 must be interpreted as
meaning that a legal person claiming that its personality rights have been
infringed by the publication of incorrect information concerning it on the
internet and by a failure to remove comments relating to that person can bring
an action for rectification of that information, removal of those comments and
compensation in respect of all the damage sustained before the courts of the
Member State in which its centre of interests is located.
When the relevant legal person carries out the main part of
its activities in a different Member State from the one in which its registered
office is located, that person may sue the alleged perpetrator of the injury in
that other Member State by virtue of it being where the damage occurred.’
For the most part this seems like a rational decision based
on the law, but not such a good ruling regarding the specifics of this case. It
feels strange to give jurisdiction to a court in Estonia for a potential
defamation occurring on a Swedish website, published in Swedish and dealing
mostly with Swedish consumer issues, even if the company is based in Estonia.
While it is understandable that the harm may occur where the person resides and
conducts businesses, the harmful act itself took place in Sweden. The Court
leaves this option open as well, the result being that, at least in principle,
those affected by defamation (or other civil harm) could sue in both the
country where they reside, and where they hold their centre of interest.
I for one do not see any changes to current practices, but I
would be interested to see what others think.
Dr Andres Guadamuz is Senior Lecturer in Intellectual
Property Law at the University of Sussex. This article first appeared as a blog
post on his Technollama blog
