In Case C-194/16 Bolagsupplysningen
OÜ and Ingrid Ilsjan v Svensk Handel AB, Advocate General Bobek has
suggested an application of the special jurisdiction rules to permit claims for
internet defamation to be brought in a company’s home jurisdiction because the
place in which a company has its centre of interests is likely to be the place
where its reputation was most strongly hit by the defamation.
Background
Bolagsupplysningen OÜ is a company established in Tallinn,
Estonia, which does most of its business in Sweden. It was placed on a
blacklist on the website of Svensk Handel AB, a Swedish Trade Federation, for
dealing in ‘lies and deceit’. Over 1,000 comments were posted in response. The
company started legal proceedings against the Swedish Trade Federation in
Estonia. It asked the Estonian court to order the removal of the blacklisting
and comments published on the website. It also sought damages of €56,634.99 for
the harm caused to its business.
On appeal to the Riigikohus (Supreme Court, Estonia), the
question is whether the Estonian courts have jurisdiction to hear the case
under Regulation (EU) No 1215/2012 on jurisdiction and the recognition and
enforcement of judgments in civil and commercial matters. More broadly, the case invites the Court to
articulate jurisdictional rules relating to reputational harm done by internet
publication.
The general rule governing international jurisdiction under
EU law is to take legal action against the defendant in the defendant’s
domicile, which in this case would be Sweden. However, Bolagsupplysningen OÜ rely
on Article 7(2), an exception to that general rule, which enables a claim to be
brought in the Member State where the harmful event occurred or may occur. This
is a special jurisdiction rule. The Court of Justice has previously held that,
in cases brought by natural persons, the place where the harmful event occurred
or may occur is the State where that person has his or her “centre of
interests” (see Case C-509/09 eDate
Advertising and Others). The special jurisdiction rule based on centre of
interests allows a claimant to sue for the harm suffered in all other EU Member
States before a single Member State’s courts. Otherwise, it would have to go to
the courts of each relevant Member State separately.
Bolagsupplysningen OÜ wants the Estonian court to apply the
special jurisdiction rule based on centre of interests to it, as a legal
person. It argues that its centre of interests is located in Estonia, even
though it does business in Sweden. It bases this on the fact that its
management, economic activity, accounting, business development and personnel
departments are located in that Member State and its income is transferred
there from Sweden.
Opinion
Advocate General Michal Bobek considers that a legal person
alleging that its personality rights have been infringed by internet content
can bring proceedings before the court of the Member State where it has its
centre of interests, and do so for the entirety of the harm claimed.
The Advocate General’s view is that legal persons may enjoy
the protection of their personality rights. More importantly, however, good
name and reputation of legal persons in the Member States is protected not only
as a fundamental right, but more commonly on a statutory basis. For “simple”
extra-contractual claims, there must be equivalent jurisdictional rules under
EU law that allow for the determination of a competent court to hear a claim
such as the one in the main proceedings.
The Advocate General goes on to suggest that there is no
good reason why the jurisdictional rules should be applied differently
depending on whether the claimant is a natural or legal person. He considers
that doing so would be based on an assumption that a natural person is the
“weaker party” in the proceedings compared to a defendant that is a legal
person. In the Advocate General’s view the internet has completely changed such
an assumption, given the ease with which natural persons may publish
information online. Next, the Advocate General suggests that for the special
jurisdiction rule for internet defamation claims, the place where the harm
occurred is likely to be where the reputation of the person was most strongly
hit. In cases of defamation, such a place is the true centre of the dispute,
which, in turn, is likely to be the place where that person (natural or legal)
has his or its centre of interests.
In order to determine the centre of interests of legal
persons, the Advocate General suggests that relevant factors are likely to be
the main commercial or other professional activities, which will most
accurately be determined by reference to turnover or number of customers or
other professional contacts. The Advocate General considers that the seat of
the legal person may be taken into account but if no professional activities
are conducted in that Member State and the legal person does not produce
turnover there, then it cannot lead to the determination of the centre of
interests being there. The Advocate General acknowledges that for natural and
legal persons there might be more than one centre of interests, but it will be
for the claimant to choose the Member State in which he decides to bring an
action. Once he has made that choice, and while the case is pending, he cannot
sue elsewhere.
Finally, the Advocate General considers that the relevant
jurisdiction would have full competence, adjudicating on the entirety of the
alleged harm and deciding what remedies to allow – including, as in this case,
an injunction to correct and remove the contentious information.
