Europe Becomes Friendlier to Lawsuits Over Online Content (Analysis)

On Tuesday, the European Court of Justice issued a big ruling that will please celebrities and haunt the press, bloggers and websites for years to come. In the decision, a panel of judges found that material placed online "can be consulted by an indefinite number of Internet users worldwide" and thus causes an impact within borders of the European Union.

Why does this matter? The judges are giving their full blessing for plaintiffs, no matter where they reside, to sue in an EU member state of their choosing, opening the door to a potential flood of lawsuits from forum-shopping celebrities over online content that's alleged to be defamatory or a violation of the plaintiff's publicity or privacy rights.

The judgment on Tuesday was made in reference to two cases that were appealed from lower courts. In one dispute, Olivier Martinez, a French actor, sued Mirror Group Newspapers, the publisher of the English tabloid Sunday Mirror, over an article that claimed he was back together with Australian singer Kyle Minogue. Martinez filed his action in Paris court, alleging that MGN violated his privacy and personality rights.

MGN raised jurisdictional objections, saying there wasn't sufficient connecting link between the act of placing the text and images online and the alleged damage in French territory.

In the other dispute, Manfred Lauber, a German citizen, sued eDate Advertising, an Austrian website, for publishing a report that he had appealed his conviction in the murder of Walter Sedlmayr, a Bavarian actor. Lauber, identified as X in the proceedings, sued in German court seeking the equivalent of an injunction against defamatory material.

eDate questioned whether Germany had jurisdiction over the matter.

The European Court of Justice, considering both of these cases, has waived away the objections over forum.

In coming to the decision, the judges focused on constitutional precedent that establishes jurisdiction in "the place where the harmful event occurred or may occur."

The judges acknowledged that this has typically meant the publisher's home country or the place where the publication was distributed and where the victim claims to have suffered injury to his reputation. Plaintiffs have the right to bring an "entire claim before the courts either of the defendant’s domicile or of the place where the publisher of the defamatory publication is established," but then they acknowledged that media has forever been changed by the Internet.

These days, there's "ubiquity," say the European judges -- Internet users throughout the world access content irrespective of the publisher's intentions.

The decision then states:

"It thus appears that the Internet reduces the usefulness of the criterion relating to distribution, in so far as the scope of the distribution of content placed online is in principle universal. Moreover, it is not always possible, on a technical level, to quantify that distribution with certainty and accuracy in relation to a particular Member State or, therefore, to assess the damage caused exclusively within that Member State."

Seeing that to be the case, the European Court of Justice decides it's OK for plaintiffs to bring lawsuits in forums throughout the EU, even in a country outside the parties' habitual residence, so long as plaintiffs can establish that damage was incurred at the chosen jurisdiction by the online posting of injuring material.

The damages imposed in these lawsuits, if successful, will be limited to damages that resulted in the country where the lawsuit was brought, but don't be surprised to see media lawyers fretting about a potential chilling effect on speech and how far liability extends in a digital environment where the idea of limited distribution is headed to obsolescence.

For instance, can an American actor sue a German publication in the U.K., where libel laws are more plaintiff-friendly, arguing that a story was read online by U.K. readers and harmed the actor's power to drive box office ticket sales in the country? Can a French musician sue an American publication in France over a story posted online that disturbed his or her privacy rights? Indeed, can an American celebrity sue an American publication in a European court because online material is "ubiquitous" and the celebrity has business there?

To the latter question, Sandy Baron, executive director of the Media Law Resource Center, which has followed the proliferation of libel and privacy actions, says, "I am not willing to go that far, perhaps because it surely doesn't suit the media to act as if the courts have totally abandoned, effectively, all principles and standards for jurisdiction."

On the other hand, Baron acknowledges that Tuesday's decision "does appear to be a sweeping statement on jurisdiction," allowing individuals to sue anywhere in the EU regardless of whether they or the publication have any serious connection to the chosen forum where a complaint is lodged.  Baron adds, "It would suggest that a EU resident might find a receptive audience in the European courts for a claim against a non-EU publication or speaker for online defamation claims."

Getting non-EU courts to enforce these decisions may be tough, but nevertheless, it's worth thinking about.

E-mail: eriqgardner@yahoo.com

Twitter: @eriqgardner

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