1. The European Court of Justice (ECJ) has on 21 December 2021 rendered a judgment on the Brussels I bis Regulation and the non-contractual forum derived from defamatory content over the Internet (case C-251/20, Gtflix Tv v DR). The decision provided by the Grand Chamber of the ECJ has relevant consequences as regards the existing case law in the field, which for years has been criticised by commentators. Thus, the aim of this post is to briefly comment this judgment within its current legal and jurisdictional framework.

2. The facts of the case are as follows: Gtflix Tv is a company based in the Czech Republic which produces and distributes, via its website, adult audio-visual content. DR, who is domiciled in Hungary, is a director, producer and distributor of adult films, which are marketed on websites hosted in Hungary.

Gtflix Tv alleged that DR made disparaging comments about it on a number of websites and forums. After giving DR formal notice to remove those comments, Gtflix Tv brought an action for interim measures against him before the Tribunal de Grande Instance in Lyon. The action sought an order requiring DR i) to cease all acts of disparagement towards Gtflix Tv and its website and to publish a legal notice in French and English on each of the Internet forums in question; ii) to allow Gtflix Tv to post a comment on those forums, and iii) to pay Gtflix Tv a symbolic sum of 1€ as compensation for economic damage and 1€ for non-material damage. Before that court, DR raised an objection that the French court lacked jurisdiction, which was upheld by order of 10 April 2017. Then, Gtflix Tv brought an appeal against that order before the Court of Appeal in Lyon, increasing to 10.000 € the provisional sum claimed as compensation for the economic and non-material damage suffered in France.

On 24 July 2018 that court also upheld the objection of lack of jurisdiction. Then, the issue was referred to the French Court of Cassation, which by decision of 13 May 2020, decided to stay the proceedings and refer the following question to the Court for a preliminary ruling:

“Must Article 7(2) of Regulation No 1215/2012 be interpreted as meaning that a person who, considering that his or her rights have been infringed by the dissemination of disparaging comments on the Internet, brings proceedings not only for the rectification of data and the removal of content but also for compensation for the resulting non-material and economic damage, may claim, before the courts of each Member State in the territory of which content published online is or was accessible, compensation for the damage caused in the territory of that Member State, in accordance with the judgment of 25 October 2011, eDate Advertising and Others (C-509/09 and C-161/10, EU:C:2011:685, paragraphs 51 and 52), or whether, pursuant to the judgment of 17 October 2017, Bolagsupplysningen and Ilsjan (C-194/16, EU:C:2017:766, paragraph 48), that person must make that application for compensation before the court with jurisdiction to order rectification of the information and removal of the disparaging comments?

3. The rules on jurisdiction of the Brussels I bis Regulation seek to promote foreseeability and certainty in the allocation of jurisdiction in civil matters to the courts of the individual Member States. One of these rules entails the provision of a basis rule (domicile of the defendant, art. 4) and there are a number of special rules (contained in art. 7, such as contractual or non-contractual relationships), the latter ones which are based on a particularly close connecting factor. According to the rules on special jurisdiction, a forum of attack is given to the plaintiff, and therefore he or she may sue the defendant before the courts of the defendant’s domicile or before the courts which have jurisdiction according to the special jurisdictional criteria. As a derogation from the principle of the defendant’s domicile, the special jurisdiction rules must be interpreted restrictively, although the ECJ has inconsistently applied this. All in all, the practice has shown that these principles and rules may be challenged in several domains, and one of them is non-contractual liability.

4. The forum loci delicti commissi rule of art. 7(2) of the Brussels I bis Regulation, previously art. 5(3) of the Brussels I Convention, that is, the expression “place where the harmful event occurred” has been interpreted as encompassing not only the place of the materialisation of the harm but also the place of the event giving rise to the damage, as the causal place. This ubiquity rule has been continuously upheld by the ECJ ever since the judgment Mines de Potasse (case 21/76) to nowadays, (Bolagsupplysningen, Para. 29). Moreover, this rule has proved difficult to be applied when referring to alleged harm caused by defamatory publications, since they may increase the number of jurisdictions where the harm may be suffered. The well-known mosaic doctrine in the Fiona Shevill case (C-68/93) is a paradigm of this, according to which the expression “place where the harmful event occurred” must be interpreted as meaning that the victim can file (optio fori) against the publisher an action for reparation before the courts of the Contracting State of the publisher’s place of establishment as the place of origin of the harmful event. In this case, these courts shall be competent to repair for the integrity of the damages derived from the defamation. And in addition, the place where the damage materialised must be understood as the place where the causal event has produced harmful effects to the victim, as the place or places of dissemination of the information when the victim is known there, and suffers an attack on his reputation. In this second case, the victim may bring proceedings before the courts of each Contracting State in which the publication has been disseminated and in which the victim alleges to have suffered an attack on his reputation. These courts will be competent to hear only claims regarding damages occurred in this State, but not other damages (locus damni jurisdiction). In addition to this, the irruption of the Internet has increased another layer of complexity to this analysis since by nature the Internet is ubiquitous, and therefore, all information published on the Internet is accessible online anywhere in the world and in theory may cause a harm anywhere in the world (worldwide effect).

5. When dealing with wrongful acts committed through the Internet, the ECJ has specialised the analysis setting up that the nature of the right allegedly infringed has to be taken into account, and thus the interpretation set up in a defamation case (eDate Advertising) is not suitable in other domains (such as intellectual property, Wintersteiger, case C-523/10), author rights (Pinckney v KDG Mediatech, case C-170/12), or exclusive sale rights (Concurrence SARL v Samsung Electronics France SAS, case C-618/15).

In particular, in defamation cases committed through the Internet, the eDate judgment introduced, further to the place of establishment of the publisher as the place of origin of the damage, a new forum rule: the place of the victim’s centre of interests. The centre of interests may be specified as the place of his habitual residence or the place of his professional activity (covering the whole of the alleged damage). On the other hand, the court maintained the forum of the place of manifestation of the damage, which may hear about the damage caused only in the territory of the specific Member State to which it has been resorted. According to the court, this is the place where content published on the Internet is, or has been, accessible (accessibility criterion), and arguably where the victim suffers an attack on his reputation.

In Bolagsupplysningen and Ilsjan, the ECJ dealt with which courts have jurisdiction to rule on an application for rectification or deletion of online comments. The court stated that since the rectification and deletion of Internet information may be done from one jurisdiction with effects worldwide such a request could not be brought before the courts of each Member State (Para. 48). Thus, the court establishes that such application could only be brought before the same courts as those that had been granted jurisdiction to hear the merits of the case for full compensation of the damage.

6. Thus, in the Gtflix case the court is asked to delimitate between the action seeking compensation for the damage caused by content placement and the action asking for the rectification and removal of the content placed online. First, the court sets out that the courts with jurisdiction to rule regarding the rectification of information and the removal of content placed online are either the courts of the place of establishment of the publisher of the content or the courts where the victim has its “centre of interests” (Para. 33). The centre of interests must be understood as the place where his reputation is most firmly established, determined by reference to the place where it carries out the main part of his economic activities (Bolagsupplysningen, Para. 41). Thus, this forum confers no jurisdiction to French courts since there is no connection with the French territory: the place of establishment of the publisher is in the Czech Republic and the victim’s centre of interests leads to Hungary.

7. Second, the ECJ analyses the compensation of the harm produced by those comments. In this regard, the court considers that although these two actions are based on the same facts, their purpose, cause and divisibility are different, and therefore there is no legal necessity that the two actions be examined jointly by a single court (Para. 36). Thus, a person who considers that he or she has suffered damage must always be able to bring proceedings before the courts of the place where the damage occurs (Para. 42). In particular, the court argues that offering such a forum, as a place of manifestation of the damage, contributes to the sound administration of justice, when the applicant’s centre of interests cannot be identified (Para. 39). According to this, the plaintiff may claim the compensation for the damage resulting from the placement of content online before the courts of each Member State in which those comments are or were accessible; these courts shall provide compensation only for the damage suffered in that particular Member State, even though those courts do not have jurisdiction to rule on the application for rectification and removal (Paras. 30 and 43). Finally, the court does not impose additional conditions to this accessibility rule, and it rules out the application of the “direction of activities” criterion of art. 17(1c) of the Brussels I bis Regulation (Para. 41).

8. Third, the ECJ does not mention the narrower recent interpretation of the “centre of interests” in Mittelbayerischer Verlag KG v SM (Case C-800/19), where the ECJ had to deal with a dispute between a Polish national residing in Poland who claim a harm against the German editor of a website who published an article, which included the expression “Polish extermination camp of Treblinka”. The Polish person was not mentioned directly but the article, written in German, could be consulted in Poland. The Court stated that since the claimant was neither mentioned by name nor indirectly identified as an individual, the attribution of jurisdiction to the courts of the place where that person’s centre of interests is situated would undermine the predictability of the rules of jurisdiction (Para. 37). In addition, the court argues that that rule must be interpreted strictly as a derogation from the principle of the defendant’s domicile rule (Para. 38).

9. Four, as it has been pointed out (M. Buzzoni, “CJEU Adds a New Piece to the “Mosaic” in Gtflix Tv”, EAPIL, 13 January 2022), the Court does not follow AG Hogan, who argues that under French law, disparagement does not fall within the scope of infringement of rights relating to the personality but rather belong to unfair competition rules (Para. 96). As a consequence, the AG argues that the place of the harm should be delimited in the place where the market affected by the anticompetitive conduct is, that is in the Member State on whose territory the alleged damage is purported to have occurred (Para. 99). More precisely, this implies that in order for those courts to have jurisdiction it is necessary “that the claimant can demonstrate that it has an appreciable number of consumers in that jurisdiction who are likely to have access to and have understood the publication in question”. Obviously, should the court had followed this interpretation, it would have led to a narrower interpretation of art. 7(2). Instead, the court situated this action within the Internet, defamation framework case-law and applied the accessibility criterion. Here, one may argue that in order to characterize the action, a lex-fori characterization was not the right solution but that the AG should have taken an autonomous one, where the principles and objectives of the Brussels I bis Regulation are considered as well as its systematic framing (See, e.g., R. Arenas García, “La distinción entre obligaciones contractuales y obligaciones extracontractuales en los instrumentos comunitarios de Derecho internacional privado”, AEDIPr, t. I, VI, 2006, 403-425, p 407). This would situate the action within the particular case-law of the ECJ. In any case, it remains to be seen whether future judgments will consider if the judgment in Gtflix has had as unwanted effect the extension of the mosaic theory to the area of infringements of economic rights (M. Buzzoni, CJEU Adds a New Piece to the “Mosaic” in Gtflix Tv”, EAPIL, 13 January 2022).

10. In conclusion, this judgment is relevant for a number of reasons. First, the ECJ follows the eDate judgment and validates the mosaic theory, heavily criticised by some commentators (particularly, see the Opinion of AG M. Bobek in Bolagsupplysningen). Second, it validates the Bolagsupplysningen judgment: the rectification and the removal of content online constitutes a single and indivisible application and it must be asked to the court where the publisher has its establishment or to the court where the alleged victim has its centre of interests. Third, the plaintiff may, regarding the compensation for the damage resulting from that placement, sue the defendant before the courts of each Member State in which those comments are or were accessible, and those courts shall be competent to decide on the damage suffered in the Member State of the court seized, even if those courts do not have jurisdiction to rule on the application for rectification and removal of the content. Four, the Court rejects considering the “direction of activities” test, adopted in the Brussels I bis Regulation for consumer contracts, as a method to resize the extensive interpretation of the accessibility criterion.

11. Finally, in my view the court could have elaborated further on several issues. First, my concern refers to the argument that the place of manifestation of harm is particularly suitable when the victim’s centre of interests cannot be identified. Indeed, that forum is applicable whether or not the centre of interests can be identified, and in our case that could be clearly identified in the Czech Republic. Second, it may be criticised that the court does not nuance the accessibility criterion. In order to avoid an excessive jurisdiction criterion, one may argue that the court could have restricted this accessibility by way of adding a requirement so that those disparaging comments implied a certain impact or eventual harm to the victim (See P de Miguel Asensio, “Competencia judicial internacional y actividades ilícitas en línea, Sentencia del Tribunal de Justicia de 21 de diciembre de 2021, asunto C-251/20: Gtflix Tv”, La Ley Unión Europea, num. 99, 2022, p. 10). Asking the victim to be known in that territory or to have a reputational interest there could fulfil this requirement, and this could also happen when those comments are of interest to Internet users residing in that territory.

12. In any case, the cases analysed in this post have shown the difficulties that the ECJ has when dealing with torts committed through the Internet. In its turn, this leads to the legislative: The question is not whether the Brussels I bis Regulation needs a reform but when this is going to happen.

Dr. Josep Suquet