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The Court of Justice of the European Union (CJEU) issued an intriguing judgment on June 17, 2021 on assigning international jurisdiction to hear a crossborder personality rights infringement claim.

This ruling stems from an article published by the German regional newspaper Mittelbayerischer Verlag discussing the story of a Holocaust survivor and mentioning that his sister “was murdered in the Polish extermination camp of Treblinka.” The disputed expression could only be accessed online for a few hours and was replaced with “was murdered by the Nazis in the German Nazi extermination camp of Treblinka in occupied Poland.” However, a Polish citizen sued the Mittelbayerischer Verlag in the Sąd Okręgowy w Warszawie (Regional Court of Warsaw, Poland), requesting protection of his personality rights, in particular his national identity and dignity, which had been infringed by using that expression.

Among other substantive arguments, the German newspaper questioned the Polish court’s international jurisdiction as it considered it contrary to the principle of foreseeability under Regulation (EU) No 1215/2012 of the European Parliament and of the Council of December 12, 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. The newspaper contended that it could not reasonably foresee that it would be sued before the Polish courts for publishing that article, as its content did not identify the claimant or even the Republic of Poland.

The Regional Court of Warsaw, however, dismissed the plea on the grounds that the Mittelbayerischer Verlag’s website and the disputed article could be accessed in Poland, where the expression “Polish extermination camp” featured in the article could strike Polish readers, so the newspaper could have foreseen that Poland could be considered the place where the readers’ personality rights were infringed and that it could be sued before the Polish courts.

The Mittelbayerischer Verlag appealed this decision before the Sąd Apelacyjny w Warszawie (Warsaw Court of Appeal), claiming that the special jurisdiction envisaged in Article 7(2) of Regulation 1215/2012 had been infringed, under which, in matters relating to delict or quasi-delict, a person can be sued in another Member State before the court of the place where the harmful event occurred or may occur.

To resolve the appeal, the Court of Appeals decided to refer a question to the CJEU for a preliminary ruling to confirm whether Article 7(2) of Regulation 1215/2012 must be interpreted as meaning that jurisdiction based on the center-of-interests connecting factor is applicable when the online publication cited as infringing rights does not directly or indirectly affect the claimant in particular but, rather, a community to which he or she belongs (in this case, the Polish nation).

After analyzing the case and European case law on the matter, the CJEU sided with the newspaper, concluding that the exceptions to the general rule of the defendant’s jurisdiction and, in particular, the jurisdiction regulated in Article 7(2) of the Regulation must be interpreted restrictively, as they aim to ensure legal certainty and avoid the alleged causer of the injury to personality rights being sued before a court of a Member State that it could not have reasonably foreseen.

In this case, the claimant considered that, although he was not directly or indirectly mentioned in the article, the expression on which his claim was based infringed his personality rights. However, the judgment clarified that “The mere fact that a person belongs to a vast identifiable group (…) is also not such as to enable those objectives of foreseeability of the rules of jurisdiction and legal certainty to be achieved, since the centres of interests of the members of such a group may potentially be located in any Member State of the European Union.”

Based on this, the CJEU answered the question referred confirming that a person claiming infringement of personal rights by content published online may file a claim before the courts of the place where the center of interests is located only if that content directly or indirectly identifies that person as an individual.

As mentioned, this is an interesting ruling with a view to the future, and it could affect other cases not dealing exactly with personal rights, since its bases can be applied to other types of disputes within the scope of application of the special jurisdiction.

Jean-Yves Teindas

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