Heiderhoff: Privacy and Personality Rights in the Rome II Regime – Yes, Lex Fori, Please!
Bettina Heiderhoff is Professor of Law at the University of Hamburg.
I. Overview
It would seem that there are already three camps in the symposium. The first two contributions (Wallis’ working paper, even if very carefully phrased, and von Hein’s paper) are both in favour of specific regulation to deal with violation of privacy and defamation in Rome II and have both stressed the importance of finding a balanced approach. Whilst the working paper is more strategic and, understandably, refrains from formulating a potential rule, von Hein has designed a full rule. In doing so, he has opted for a system that is, vaguely, similar to the Romanian one that Wallis’ working paper presents as an example: the location of the injured party’s habitual residence is taken as primarily decisive and this is then combined with a foreseeability rule. There is more to von Hein’s suggestion, which will be touched on below.
Boskovic’s paper also favours the integration of defamation into Rome II. However, she is promoting the application of article 4 Rome II – or, in other words, she simply wants to delete the exception in article 1(2) (g) Rome II.
The last two contributors (Dickinson and Hartley) prefer maintaining the status quo for the time being. In particular, they highlight the current revision of the Brussels I Regulation as a reason to hold off. However, it seems that article 2 and article 5 (3), which are applicable to jurisdiction in defamation cases, are not under reconstruction. There is no reason to believe that the Shevill doctrine will be changed in the near future. On the contrary, it may be advisable to draft a conflict rule soon so that, if necessary, Brussels I can be changed accordingly. Nevertheless, this position raises a very important point: Jurisdiction and applicable law are, at least in the eyes of English lawyers, often perceived as closely connected.
It seems that, as far apart as they may sound, at least the two extreme positions should be reconcilable.
II. Important issues
If a new rule on the violation of privacy rights and defamation is aspired to, then first and foremost its task must be to consider and weigh the interests of both parties. This is an obvious need with regard to the injured party. However, even more than in other cases of tortious liability, the injurer must also be protected, as he/she is acting within the sphere of basic rights, namely the right to free expression. Therefore, article 4 Rome II seems unsuitable for privacy violations.
In trying to balance potentially conflicting interests, one faces two layers of difficulty. Firstly, there is the conflict of basic laws as mentioned above. Secondly, this conflict between freedom of expression and privacy is viewed and weighted quite differently all across Europe. It is, therefore, not easy for a European conflict of laws rule to weigh the various interests in a manner that all member states will find acceptable. The task of finding a solution to this conflict is set be fulfilled by the new rule. However, it must be solved not only in PIL, but also in procedural law, when fixing jurisdiction.
Certainly, in international procedural law we are at a completely different point. Unlike Rome II, Brussels I already comprises claims based on the injury of privacy rights and the ECJ has formed a rule on how to cope with multi-state cases. The court shaped the Shevill doctrine very carefully and, it appears, acceptably. The Shevill doctrine excludes exorbitant cherry-picking for the injured and, at the same time, impedes publishers from retreating to libel havens (if they exist).
III. Lex fori solution
Having such a balanced procedural rule (even if it is judge-made) for jurisdiction, it seems obvious to test its suitability for private international law (PIL). In doing so, it is obvious that one cannot merely transpose the entire rule into PIL. Were one to do so, the result would be ridiculous: the claimant would be allowed to choose both the forum and, independently, the applicable law. If an Italian newspaper reported, in a defamatory manner, on an English actress, the actress could opt to sue the publisher in England under Italian law – or vice versa. This risk, it appears, is not quite precluded in von Hein’s approach. His draft rule allows the injured party to choose the law of the forum – but what if they don’t? Why not force such synchronization?
By applying the lex fori, as Wagner has suggested (e.g. in the hearing), this goal is easily reached. At the same time, the somewhat contentious foreseeability test is side-stepped and, maybe more importantly, the application of foreign law in a legal field, where cultural differences truly exist, is completely proscribed.
At first glance, this seems a very un-German suggestion. After all, the lex fori paradigm is an English one and it is usually something of a taboo in continental systems. In defamation and privacy cases – and in combination with Shevill – such prejudice should be overcome, as the lex fori offers all the required advantages.
The Shevill approach has, admittedly, got its own disadvantages. While Wallis claims that “By providing a mechanism for informed choice, either by the judge or the parties themselves, from all of the available options, the conflict-of-law rule is far more likely to designate the most suitable law in practice” – this is only partly true. For one thing, following the Shevill doctrine, it is not the court that chooses the applicable law: it is always the party choosing the court that, thereby, automatically chooses the law. Now, the party obviously doesn’t make the choice personally, but acts on the advice of a lawyer. Even for a lawyer, however, it must be noted that choosing the best forum for the party is extremely difficult and mistakes will occur.
IV. End
In many papers, here and before, it has been assumed that violations of privacy rights and defamation are rare, because judicial protection is effective. Still, it should be effective and fair. Only where there are balanced rules, can media and injured parties can be certain that their rights are adequately and equally considered.
Fairness, it seems, can be reached by a conflict of law rule much more simply than by a minimum standard or unified material rule. Why should a country like France, that has article 9 cc protecting privacy, and a country like England, where, as Hartley has put it “if something is true, you should (usually) be allowed to say it”, be forced into parallel standards?
I liked this contribution, which had interesting ideas. But you have to get to grips with the Internet. When is an item on the Internet to be regarded as published/distributed in a country? Targeting is not the answer. It does not work in practice. If a German professor posts a contribution on EU private international law in the English language, is she targeting England more than Germany?
Just to extend Trevor’s point regarding the internet and targeting, Conflict of Laws .net undoubtedly has a strong EU bias, and yet (outside the UK), the country where it is accessed the most is the US. The website itself is freely available to any English-speaking person in the world (except China, of course).
I think the only solution that would be workable in practice is a choice either of the law of the place where the website is hosted (where the servers are physically located – in our case, the US), or the law of the habitual residence of the website’s owner (in our case, the UK).
I don’t think either of Martin’s solutions would be acceptable. As to the first, most servers seem to be located in the US, so adopting this test would mean that US law would apply in almost all Internet cases in Europe. I see no justification for this. Similar objections could be raised with regard to the second suggestion. Ownership of the website could be transferred to a subsidiary located in a country (such as Iceland, under its new legislation) where almost anything goes. Why should this apply throughout Europe?
As to the objection that ‘most servers seem to be located in the US’, I’m not sure that is true; I would, at least, like to see evidence of that. The general rule is that people will locate their servers in the place where they most do business (or, more specifically, where they think they will get the most business from) – servers are faster and more efficient the closer they are situated to the person using the website which is hosted upon that server.
As to the second, that may well be true (although one can think of other choice of law rules, and rules of jurisdiction, that may be criticized for the same reason). But underlying all of this is an assumption that the existing vocabulary of private international law, and any of the connecting factors, can adequately deal with torts committed on the internet. The idea of ‘place’ is anathema to the concept of ‘world wide web’.
Before we all get carried away with the excitement of it all, it would be well to re-read Lord Hoffmann’s lecture (the Dame Anne Ebsworth one, delivered in February 2010). The law of the place where the damage was done might not be everybody’s choice, but it does save one having to ask questions about electronic technology which are unlikely to yield illuminating answers.
Lord Hoffman’s lecture can be downloaded (in Word format) from here.
As to the law of the place where the damage was done: the thought of having to identify one’s liability according to 194+ systems of law does not particularly appeal. But, I suppose, criticisms of the decision in Gutnick ring hollow until we can come up with a better alternative.
Thank you very much for this great discussion/online symposium on a topic that I am currently writing my Master’s thesis on.
Instead of the law of the habitual residence of the website’s owner, would it be possible to come up with a rule that applies the law of the place of editorial control? This might often be the same place as the habitual residence of the website’s owner or the location of the server, but it is more likely to prevent ‘forum shopping’. It is unlikely that, for instance, the editors of an online news website will relocate themselves to free speech ‘havens’.
Another point I would like to raise is the question whether the nature of the non-contractual obligations in question should play a role in the formation of a rule. According to the Explanatory Memorandum of Rome II, the general rule (lex loci damni) is informed by the ‘modern’ approach towards tort law as a way of loss allocation/compensation. However, in my opinion, defamation and privacy torts do not merely serve this purpose, but are also largely of a conduct-regulating nature.
Particularly the concept of a ‘chilling effect’ in free speech jurisprudence (ECtHR) highlights the effects a legal rule, such as defamation law, can have on the conduct of the speaker. Hence, the conduct regulating nature/effects of the non-contractual obligations at issue cannot be easily disregarded in favour of a choice of law rule that focuses on the loss allocation/compensation function.
Just to note (in response to Professor Heiderhoff’s comment in Part I of her post) that the possible reform of Art. 5(3) of the Brussels I Regulation, although not specifically raised in the Commission’s Green Paper, cannot be said to have been excluded. I note, in particular, that such reform is advocated by the European Parliament’s Rapporteur, Tadeusz Zwiefka, in his very interesting report on the Brussels I review dated 29 June 2010 (available at http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+REPORT+A7-2010-0219+0+DOC+PDF+V0//EN&language=EN).