I. INTRODUCTION
Case C-800/19 Mittelbayerischer Verlag1 is a jurisdictional dispute concerning online defamation. The relevant legal framework in this case is the Brussels I Regulation 2012 (‘Brussels I’), which contains rules that European Union (‘EU’) Member States’courts use to decide whether they have jurisdiction to hear a cross-border case which involves one or more EU countries.2 In light of the growing number of cross-border cyberspace cases, courts have faced difficulties when applying Brussels I, which often requires considering territorial criteria such as where the ‘place the harmful event occurred’, or the ‘place of performance’ for contracts. Naturally, these territorial criteria are far less clear-cut for cyberspace than for conventional ‘real’ space. In the present case, applying Brussels I, the Court of Justice of the European Union (‘CJEU’) took a small step forward in clarifying that alternative jurisdiction for online defamation claims under the ‘centre of interests’ connecting factor can only be made where the claimant can be directly or indirectly identified by the publication in question.3 This case note will proceed in four steps. Firstly, the case facts are summarised. Secondly, the case note lays out the Brussels I jurisdictional regime for torts, and in particular, the special rules relating to defamation. Thirdly, by analysing the opposing outcomes of the CJEU and Advocate General’s (‘AG’) Opinion4 in this case, this author critiques the CJEU’s ‘identifiability’ criterion for the ‘centre of interests’ connecting factor. Finally, this case note argues that the parallel availability of ‘mosaic jurisdiction’ and ‘centre of interests’ jurisdiction is not as problematic as the AG has depicted.
II. SUMMARY OF FACTS
The claimant in the main proceedings, SM, is a Polish resident who was a prisoner in the Auschwitz concentration camp during World War II. Mittelbayerischer Verlag, the defendant in the main proceedings, is a German-domiciled company that publishes a regional online newspaper that is internationally accessible. The contested publication is an online article stating that a Jewish Holocaust survivor’s sister was ‘murdered in the Polish extermination camp of Treblinka’. Polish substantive law deems the term ‘Polish extermination camp’ an infringement of personality rights for any Polish survivor of Nazi concentration camps, because it creates the impression that Polish nationals are in some way responsible for the creation of these camps or the crimes committed in them.5 Despite not being referred to in the publication, SM alleged in the Polish courts (as a Polish national) that Mittelbayerischer Verlag infringed his personality rights, particularly with regards to his national identity and dignity. Ultimately, the CJEU decided that the Polish courts did not have jurisdiction to hear the case because the claimant was not objectively identifiable from the contested publication.
This case presents a nuanced jurisdictional issue of whether Polish courts are an appropriate forum under Brussels I to hear the case. This issue will be explained in the subsequent section, which lays out the relevant jurisdictional rule regarding cross-border torts within the EU.
III. JURISDICTION RULES FOR ONLINE DEFAMATION UNDER BRUSSELS I REGULATION 2012
Article 4 of Brussels I states that a claimant always has the option to sue an EU-domiciled defendant in the courts where the defendant is domiciled. Therefore, in the present case, SM can bring a claim against Mittelbayerischer Verlag in Germany. However, apart from the defendant’s domicile, alternative jurisdiction may be found where there is a ‘close connection’ between the court and the action.6 Article 7(2) of Brussels I provides that for matters of tort, alternative jurisdiction can be established ‘in the courts for the place where the harmful event occurred or may occur’.7 In the present case, SM argues that Polish courts have jurisdiction under Article 7(2). This is significant for two reasons. Firstly, a Polish court may have a more sympathetic attitude towards the claimant, given that the disputed phrase in this case is considered an infringement of personality rights under Polish law. Secondly, Article 4(1) of the EU Rome II Regulation, which governs applicable law in tort, states that the applicable law is the law of the country ‘in which the damage occurs’.8 As such, establishing Poland as the place where the harmful event occurred would likely lead to substantive Polish law being applied, which is favourable for the claimant.
Past CJEU cases offer further guidance about Article 7(2) and alternative jurisdiction in an online defamation context. The seminal case e-Date9 clarifies that apart from the publisher defendant’s domicile, the claimant may also bring proceedings in both (1) the jurisdiction of the claimant’s centre of interests, for all the harms allegedly sustained, and (2) the place where the publication was distributed, but only for the harms caused in that jurisdiction (‘mosaic approach’).10 Furthermore,Bolagsupplysningen11 suggests that courts with limited, mosaic jurisdiction can only award ‘divisible’ remedies (pertaining to monetary compensation), whereas the courts of the Member State, where the claimant’s ‘centre of interests’ is located, can award ‘indivisible’ remedies such as the rectification and removal of the offending content. In the present case, two of the remedies that SM seek are indivisible – prohibiting the defendant publisher from publishing the offending phrase again and an order for the publisher to apologise for use of the offending phrase. Hence, SM would need to establish that Poland is his ‘centre of interests’. Notably, the present case is factually distinguishable from past CJEU precedent, because SM (unlike the claimants in cases like e-Date and Bolagsupplysningen) was not referred to in the contested publication. Therefore, the crux of the legal issue in these proceedings is whether, despite the claimant not being directly or indirectly referred to in the offending publication, Polish courts have ‘centre of interests’ jurisdiction for all the harms allegedly sustained to SM.
IV. ‘CENTRE OF INTERESTS’ JURISDICTION
The CJEU and AG Bobek came to opposing conclusions as to whether Poland is a ‘centre of interest’ for the claimant. Whilst the AG argued for Polish courts to have ‘centre of interests’ jurisdiction, the CJEU ruled to the contrary because the contested publication did not contain objective, verifiable elements that identified the claimant.12 This effectively imposed an objective identifiability threshold for ‘centre of interests’ jurisdiction to be established. The basis for this threshold is to allow the defendant to reasonably foresee where he is to be sued – a key policy consideration behind Brussels I.13 Prima facie, this reasoning is appealing: if the contested publication does not refer (directly or indirectly) to the claimant, a defendant publisher cannot identify the potential claimant who is affected. If so, the defendant would not know the domicile (often the centre of interests) of said potential claimant. It is unfairly onerous on the defendant publisher to be sued for all the alleged harms caused to a claimant in his ‘centre of interests’ forum, when it is not reasonably foreseeable that the claimant is the subject of the publication.
The author disagrees with the CJEU’s reasoning for two reasons. Firstly, identifiability is a case-specific concept and cannot be a universal arbiter of whether ‘centre of interests’ jurisdiction is granted. This is because whether a person is identifiable or not depends on context. For instance, a person may be more ‘identifiable’ in an article that names his close relatives, than a person who is named in an article as a student at a particular university. Put simply, the matter is not as black-and-white as whether a person is ‘objectively identifiable’ – as the AG astutely notes, there is a ‘continuum…[with] degrees of individualisation’.14 In many cases, a person may more likely than not be identifiable, rather than strictly identifiable or not. This introduces a large degree of uncertainty for the ‘centre of interests’ rule, both from the defendant’s perspective and from the perspective of application by the courts. Therefore, although the identifiability criterion was an appreciated step forward to clarify what ‘centre of interests’ jurisdiction requires, this criterion does not in fact increase certainty. In any case, the identifiability criterion seems to lose sight of the original Article 7(2) inquiry, being whether the harm occurred (or may have occurred) in a Member State, not whether a particular claimant is identifiable or not.15
Secondly, the CJEU reductively focuses on the idea of ‘predictability’ – whether the defendant can subjectively reasonably foresee the identity and domicile of the claimant. It is argued that the ‘centre of interests’ jurisdiction should instead be analysed in conjunction with the policy consideration behind the Brussels I alternative jurisdiction rules, which are based on the ‘existence of a particularly close connecting factor between the dispute and the courts of the place where the harmful event occurred’.16 Hence, the type of predictability Brussels I envisions is an objective and reasonable standard of predictability for the ‘centre of gravity of the dispute’ by the defendant in order to justify alternative jurisdiction, not merely whether the defendant can subjectively predict the claimant’s centre of interests (which is often his domicile). The AG supported this in the present case, noting that:
‘the issue of foreseeability ought to be properly characterised as enquiring as to whether a particular statement, in view of its nature, context and scope, could have caused harm to a given claimant within the given territory. It thus relates clearly to foreseeability and predictability of the given forum. It should not be reduced to the question of whether a particular publisher knew or could have known the domicile of a possible victim at the time the material was uploaded online.’17
This author agrees with the AG’s two-step test, which had precedential support from AG Cruz Villalón in e-Date.18 Essentially, the objective ‘centre of gravity of the dispute’ is where: (1) the Member State where the claimant’s centre of interests is, and (2) if the information in question was expressed in a manner such that it is reasonably, objectively relevant in that Member State.19 It is clear that part (1) is concerned with the claimant himself, whereas part (2) is more concerned with the intricacies of the dispute. The CJEU focused almost exclusively on part (1) to the neglect of part (2). This goes against the purpose of Article 7(2), which is to encourage deviation from the Article 4 domicile rule only where there is a close connection between the dispute and in the present case, the Polish court. Hence, the CJEU erred in assessing only whether the defendant publisher could reasonably foresee Poland being the claimant’s centre of interest, but not whether the information was reasonably foreseeable to be relevant in Poland given its context.
Indeed, if the CJEU were to consider part (2), it may well have come to the opposite conclusion and granted Polish courts ‘centre of interests’ jurisdiction. Objectively speaking, it ought to be foreseeable to the defendant publisher that a phrase targeting the Polish community would offend somebody in Poland.20 This is because the article specifically named the country Poland and used the controversial term ‘extermination camp’. Furthermore, considering that a substantial 32,000 visits to the website were from Polish visitors21 in just over a year, the defendant publisher could have foreseen that the phrase ‘Polish extermination camp’ would be objectively relevant in Poland. Under this consideration, this comment agrees with the AG’s conclusion that the Polish courts ought to have been granted ‘centre of interests’ jurisdiction.
V. PARALLEL AVAILABILITY OF MOSAIC JURISDICTION AND CENTRE OF INTERESTS JURISDICTION
One feature of online defamation claims is that, apart from in the publisher’s domicile, the claimant can also sue in (1) his centre of interests for all damages, and (2) in all member state jurisdictions for the specific damage caused within that jurisdiction (mosaic jurisdiction). The AG criticises this parallel availability of ‘centre of interests’ jurisdiction and mosaic jurisdiction as problematic.22 This problem was created because Bier,23 a non-defamation torts case, set out a longstanding precedent that the ‘place where the harmful event occurred’ covers both the place where the damage occurred and the place of the event giving rise to it.
The AG raises two issues with this parallelism. Firstly, he argues that it is a ‘futile exercise’ to search for a claimant’s centre of interests, when, in any case, mosaic jurisdiction will be available in potentially all the Member States. With respect, this reasoning forgets that mosaic jurisdiction is limited to awarding divisible remedies such as monetary compensation, whereas ‘centre of interests’ jurisdiction has a broader remit. Therefore, ‘centre of interests’ jurisdiction cannot be redundant simply because mosaic jurisdiction is available. A claimant (such as SM in this case) may not be satisfied with mere monetary compensation and maywish to pursue indivisible remedies such as rectification of the offending statement, which would require ‘centre of interests’ jurisdiction. Secondly, the AG argues that ‘centre of interests’ is heavily presumed to be the claimant’s domicile since this is the place where the claimant’s reputation will be most affected. As this is ‘built around the subjective situation’24 of the claimant, it has little to do with objective connecting factors between the dispute and the forum, which is the true inquiry of Article 7(2). While this is a fair criticism of ‘centre of interests’ jurisdiction, it is not an attack on the parallelism between mosaic jurisdiction and ‘centre of interests’ jurisdiction. Hence, this parallelism is as problematic as the AG suggests. Nevertheless, this comment agrees with the AG and Lutzi25 that this case is not an appropriate opportunity to create major overhauls in jurisdiction law. This is because the difficult issue in this case concerns the scope of personality rights infringed by the publication and who can claim to be a victim of such infringement. This is a matter of substantive merits, which can only be solved by the applicable national law rather than international jurisdiction law. Notably, the court that hears the case does not necessarily always apply its own national law; a different set of conflict of laws rules relate to the applicable law of a case. Here, the question of ‘to what extent the publication can be considered as defamatory to the claimant’ is an issue to be determined under the applicable law of the case. This question must be distinguished from the central focus of this comment, which seeks to address which court may hear the case (a jurisdictional issue), rather than what law applies to it.
VI. CONCLUSION
As one of the newer cases on the recent jurisdiction rules for online defamation, the CJEU in Mittelbayerischer Verlag made a commendable effort to clarify requirements for ‘centre of interests’ jurisdiction. However, this case note critiques the utility of the ‘objective identifiability’ criterion, arguing that it creates uncertainty by going against the spirit of Article 7(2) to link the forum with the dispute rather than the claimant. Furthermore, this comment argues that the problems allegedly created by mosaic jurisdiction and ‘centre of interests’ jurisdiction being available in parallel are overstated.
[1] Case C-800/19 Mittelbayerischer Verlag KG v SM [2021] ECLI:EU:C:2021:489.
[2] European Parliament and Council Regulation 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters (recast) [2012] OJ L351/1 (Brussels I).
[3] Mittelbayerischer Verlag (n 1) para 46.
[4] Case C-800/19 Mittelbayerischer Verlag KG v SM [2021] ECLI:EU:C:2021:124, Opinion of AG Bobek.
[5] Tobias Lutzi, ‘Opinion on Case C-800/19: AG Bobek Proposes Foreseeability Test for ‘Centre of Interests’ Jurisdiction’ (Conflictoflaws.net, 23 February 2021) < https://conflictoflaws.net/2021/opinion-on-case-c-800-19-ag-bobek-proposes-foreseeability-test-for-centre-of-interests-jurisdiction/> accessed 21 February 2022. See also Mittelbayerischer Verlag (n 1) para 19.
[6] Brussels I (n 2) Recital 16.
[7] ibid art 7(2).
[8] European Parliament and Council Regulation 864/2007 of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) OJ L199/40.
[9] Joined Cases C-509/09 and C-161/10 eDate Advertising and Others v X and Société MGN LIMITED [2011] ECLI:EU:C:2011:685.
[10] ibid para 42. See also Case C-68/93 Fiona Shevill and Others v Presse Alliance SA [1995] ECLI:EU:C:1995:61, where the mosaic approach for printed publications was established.
[11] Case C-194/16 Bolagsupplysningen OÜ and Ingrid Ilsjan v Svensk Handel AB [2017] ECLI:EU:C:2017:766.
[12] Mittelbayerischer Verlag (n 1) paras 42-45.
[13] See Brussels I (n 2) Recital 15 which states that ‘rules of jurisdiction should be ‘highly predictable’ for the defendant’.
[14] Opinion of AG Bobek (n 4) para 55.
[15] ibid para 56.
[16] ibid para 40.
[17] ibid para 73.
[18] ibid para 64. See also Joined Cases C-509/09 and C-161/10 eDate Advertising and Others v X and Société MGN LIMITED [2011] ECLI:EU:C:2011:192, Opinion of AG Cruz Villalón.
[19] Opinion of AG Bobek (n 4) para 64.
[20] ibid para 74.
[21] ibid para 18.
[22] ibid para 42.
[23] Case C-21/76 Handelskwekerij G. J Bier BV v Mines de potasse d’Alsace SA [1976] ECLI:EU:C:1976:166, para 24.
[24] Opinion of AG Bobek (n 4) para 42.
[25] Lutzi (n 5).
Jacqueline Chun Yee Lee
LLB (LSE) ’21