Jurisdiction for cross-border breach of personality and defamation: eDate advertising and Martinez

In the conjoined cases C-509/09 e-Date Advertising GmbH v X and C-161/10 Olivier Martinez and others v MGN Ltd, ¹ the Court of Justice of the European Union (CJEU) was required to determine the scope of applicability of both Article 5(3) of Regulation EC 44/2001 (the Brussels I Regulation) ² and Article 3 of Directive EC 2000/31 (the Electronic Commerce Directive). Both cases were concerned with defamation and breach of personality and image rights as a result of the publication of two newspaper articles which were accessible online via each of the defendants' websites. As readers will be fully aware, Article 5(3) of the Brussels I Regulation enables claimants to establish special jurisdiction in the case of a tort, delict or quasi-delict, in the courts of the Member State where a harmful event has occurred or may occur. The effectiveness of Article 5(3) as a ground of jurisdiction focuses on the locality of the event. The question that arose in both cases was, essentially, where could the claimants bring proceedings for breach of personality and defamation as a result of newspaper articles published online via websites, ³ when those websites were accessible in multiple jurisdictions? According to an experienced legal practitioner in the United Kingdom, 'more than 25 billion individual items of content are shared each month on Facebook alone'. ⁴ There are increasing concerns regarding the dissemination of comments through the medium of 'ubiquit(ous), converged and displace(d)' ⁵ Web 2.0 communications technologies. Such communications increase the potential for criminal and civil consequences in numerous jurisdictions. The ability of injured parties (famous or not) to seek redress in the most appropriate forum for the purposes of protecting their private lives and reputations is acutely significant. ⁶.