Report on the IMKR Lecture “Personality Rights in Private International Law” by Prof. Heiderhoff
On January 16, 2018, for the fourth IMKR lecture of the winter semester 2017/18, Prof. Rösler welcomed Prof. Dr. Bettina Heiderhoff from the University of Münster, where she is a professor of private international law, international civil procedure, and civil law, as well as director of the Institute for German and International Family Law. Prof. Heiderhoff analyzed the conflict of interests between freedom of the press and freedom of expression on the one hand, and the right to privacy and free development of personality on the other, as well as the resulting questions of international jurisdiction and applicable law arising from today’s prevailing global media distribution models.
1. Prof. Heiderhoff first illustrated the fundamental conflict using several cases. In doing so, she traced the different legal traditions in the U.S. and England, which have led to so-called “libel tourism” by plaintiffs to English courts. While under U.S. law the press enjoys a very high degree of freedom due to strict constitutional requirements, English law traditionally grants comprehensive protection of personality rights, which manifests itself, among other things, in a burden of proof placed on the authors of press articles regarding the accuracy of their representations. However, efforts have recently been made on both sides to curb the practice of “libel tourism” (see, regarding the relevant SPEECH Act, Dinse/Rösler, Libel Tourism in US Conflict of Laws – Recognition and Enforcement of Foreign Defamation Judgments, IPRax 2011, 414). The differences that exist even within Europe explain the difficulties in establishing international rules regarding violations of personality rights.
2. In the second part of her presentation, Prof. Heiderhoff addressed international civil procedure. In doing so, she distinguished between the applicability of the Brussels I Regulation (in cases where the defendant is domiciled within the EU) and § 32 of the German Code of Civil Procedure (ZPO) (where the defendant is domiciled outside the EU). According to Article 4 of the Brussels I Regulation, jurisdiction generally lies with the courts of the Member State in which the defendant is domiciled. In cases of torts, Article 7(2) of the Brussels I Regulation further provides that the courts of the Member State in which the harmful event occurred (or is likely to occur) have jurisdiction. This refers both to the place where the event giving rise to the damage occurred (the so-called “place of the act”) and to the place where the damage occurred (the so-called “place of the consequence”).
The ECJ has clarified this in three decisions. The first of these is the “Shevill” judgment (ECJ, Judgment of March 7, 1995 – Case C-63/93, NJW 1995, 1881): According to this ruling, in the case of press publications, the place of the act is the place of establishment of the publishing company, because that is where the final decision regarding publication is made. The place of the consequence is any place where the press publication is distributed and where the affected party is known. However, the ECJ limits the amount of the claim that can be asserted to the amount of the damage incurred in the relevant Member State (the so-called “mosaic theory”). The full extent of the damage incurred can be claimed only at the publisher’s place of establishment.
In the “eDate Advertising” decision (ECJ, Judgment of Oct. 25, 2011 – Case C-509/09, C-161/10, NJW 2012, 137), the ECJ expanded the concept of the place where the damage occurred in cases of violations of personality rights on the Internet. As a starting point, it first extends its “mosaic” case law from Shevill to online publications, replacing the requirement of distribution in accordance with the intended purpose with the mere accessibility of the publication. The ECJ then, however, grants the plaintiff an additional option to bring a claim in the Member State where the “center of his interests” is located. There, the affected party may sue for the full amount of damages, just as at the place of establishment of the website operator.
If, on the other hand, the plaintiff seeks the correction or removal of the publication, the ECJ, in a more recent decision, limits the option to bring a claim from the outset to the defendant’s place of establishment and the “center of interests” established in eDate Advertising. This is because removal and correction are indivisible processes that cannot be split up within the meaning of the “mosaic theory” (ECJ, Judgment of Oct. 17, 2017 – Case C-194/16, NJW 2017, 3433 – Bolagsupplysningen).
In cases where § 32 of the German Code of Civil Procedure (ZPO) applies because the defendant is domiciled outside the EU, the Federal Court of Justice (BGH) has held that an action may also be brought at the place of the act and at the place of the consequence. However, the BGH defines the place of the consequence differently from the ECJ: It requires a clear connection to Germany, meaning that the conflict of competing interests must arise specifically in Germany (BGHZ 184, 313 = NJW 2010, 1752 – New York Times).
3. The third section dealt with private international law. Pursuant to Art. 1(2)(g) of the Rome II Regulation, violations of personality rights are excluded from the scope of the Regulation. Consequently, autonomous national private international law applies. In Germany, this is Art. 40 of the Introductory Act to the German Civil Code (EGBGB). For offenses committed at a distance, Article 40(1), sentence 2, of the EGBGB provides the injured party with the option to choose between the law of the place of the act and that of the place of the consequence.
However, determining the place of the act and the place of the consequence is extremely difficult in the case of online publications. Possible places of the act include the author’s place of business, the operator’s place of business of the website on which the content is displayed, and, for example, the location of the server. With regard to the place of consequence under Article 40(1), sentence 2, of the EGBGB, the prevailing view is that, similar to international jurisdiction (see above), a mosaic must be formed: The law of a place where the damage occurred may be chosen in each case only for the portion of the damage that actually occurred there. Whether there should additionally be a “primary place where the damage occurred” is a matter of dispute. In any case, the “mosaic theory” in private international law is not sufficiently aligned with the European Court of Justice’s “mosaic theory” in the Brussels I Regulation (likely also due to the lack of European harmonization). This leads, in certain conflict-of-laws cases, to a divergence between jurisdiction and the applicable law.
In conclusion, Prof. Heiderhoff discussed what the connecting factor in a future EU standard might ideally look like. A one-sided connection to the place of the act on the one hand or the domicile of the injured party on the other generally does not result in a fair balancing of interests. A “mosaic” connecting factor parallel to international civil procedure would be one way to align the applicable law with international jurisdiction. However, it remains uncertain whether the ECJ case law outlined above will stand the test of time and whether it even constitutes an appropriate balance. De lege ferenda – that is, with a view to a possible new European regulation – Prof. Heiderhoff advocated for the application of the lex fori, which would always ensure that the applicable law aligns with international jurisdiction. In any case, an optimal connecting factor must, as far as possible, take into account both the closest connection to the case and the balance of interests between the parties, and, where necessary, protect the weaker party.
Further reading (in German): Heiderhoff, Eine europäische Kollisionsregel für Pressedelikte, EuZW 2007, 428 (432), and Heiderhoff, Der Erfolgsort bei der Persönlichkeitsrechtsverletzung im Internet, in: Festschrift für Dagmar Coester-Waltjen, 2015, p. 413.
