CJEU on mosaic approach and jurisdiction for action on compensation for damage resulting from an online publication under Article 7(2) of the Brussels I bis Regulation in the case Gtflix Tv, C-251/20
This Tuesday the Court of Justice delivered its judgment in the case Gtflix Tv, C-251/20, where it has been asked to interpret Article 7(2) of the Brussels I bis Regulation in the context of an online publication allegedly disparaging a legal person and an action for compensation brought by that person before the court of a Member State in the territory of which that content was accessible.
The preliminary question referred to the Court read as follows:
“Must Article 7(2) of [the Brussels I bis Regulation] be interpreted as meaning that a person who, considering that his or her rights have been infringed by the dissemination of derogatory comments on the internet, brings proceedings not only for the rectification of information and the removal of content but also for compensation for the resulting non-material and material 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 in eDate Advertising (paragraphs 51 and 52), or whether, pursuant to the judgment in [Bolagsupplysningen and Ilsjan] (paragraph 48), that person must make the application for compensation before the court with jurisdiction to order rectification of the information and removal of the derogatory comments?”
In essence, the referring court sought to establish whether the mosaic approach stood up to the test of time (also) in the contexts such as the one described in the preliminary question.
The Court answered in the affirmative.
A person who brings proceedings not only for the rectification of information and the removal of content but also for compensation for the resulting non-material and material 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, despite the fact that – as the Court seems to stress it in its answer – these courts would not have jurisdiction to rule on the rectification or removal of content.
The judgments is available here (in French, so far), with a press release in English.
Seriously, find yourself someone who loves you as much as the CJEU loves the mosaic approach!
AG Hogan had offered a detailed analysis of why the mosaic approach is problematic and how it could be modified without the Court having to reverse its previous case law and the Court – despite sitting as the Grand Chamber – dismisses it in two measly paragraphs ([41]–[42]).
Dear Mr. Pacula and dear Tobias thank you for sharing and reflecting! Jurisdiction on internet-related torts never ceases to amaze!
The loyalty of the Court to the mosaic model of Shevill is indeed astonishing, especially because by its very nature the internet has mounted the most serious challenge to it. To a certain extent, the loyalty of the Court to its Shevill case law is reminiscent of the similarly staunch defense it provided for its de Bloos decision in the context of 5(1) Brussels Convention (today 7(1)(a) Brussels Ibis).
While in the latter case the legislator has offered some form of compromise by devising art. 5(1)(b) of the Brussels I (today 7(1)(b) Brussels Ibis), it seems that the situation in internet-related personality torts is more complicated. AG Hogan (whose Opinion in Gtflix has indeed offered a great chance to reflect on the virtues, vices, and limits of the mosaic approach online) has put it in a bittersweet way in par. 94 of his Opinion, which I feel I must quote verbatim: “…All in all, therefore, it has to be recognised that the quest for a perfect solution in the case of trans-national defamation is an idle one. Experience has demonstrated that this is so. There are difficulties with both the mosaic and the ‘single jurisdiction’ approaches. But since the decision of the Court in Shevill in 1991(sic) the Court has, on the whole, opted for the mosaic approach. It cannot, I think, be said that this approach is so clearly wrong or unsatisfactory that the case-law based on this approach should now be over-ruled or otherwise departed from…”.
No matter whether one agrees with the final statement of AG Hogan above or not (I agree with Tobias that the mosaic approach might not be the best one in terms of allocating jurisdiction for damages stemming from internet-related personality torts), his summary may be an honest representation of the current stalemate. The relatively recent Hague 2019 Judgements Convention, which completely excludes personality and privacy-related internet torts from its scope of application (see art. 2(1)(k) and (l) in combination with art. 5(1)(j) of the Convention) is just another testament to the controversial nature of the issue (which includes, among other things, a titanic clash of fundamental rights).
The CJEU seems to be somewhat unwilling to enter a discussion on why it supports the mosaic approach so strongly for damages while it has abandoned it for rectification actions. One might also find it striking that the Court felt compelled to declare that not only the mosaic approach remains intact for damages online, but it is also enough that the court awarding partial damages founds its jurisdiction on the basis of the mere accessibility of the content to the territory of its Member State (see esp. par. 41 of the decision on Gtflix).
It would be interesting to see how this saga will be concluded (if ever), but following the individual steps of this process (especially the case-law of the Court) is always inspiring. Therefore, once more thank you Mr. Pacula and Tobias for sharing and reflecting!
Thank you so much for sharing your thoughts, Ioannis!
I’m not sure if ‘stalemate’ is the best term to describe the current debate between the mosaic approach and a ‘single jurisdiction’ solution, though, given that the Court continues to uphold both. The claimant is thus free to rely on whichever is the most favourable interpretation of Art 7(2) for them.