Thursday, 10 April 2014

Online defamation: International jurisdiction and applicable law





A decision of the Dodecanese CoA [Nr. 220/2013, unreported] dismissed an appeal of English residents against a ruling of the Rhodes 1st instance court, which assumed jurisdiction for a claim for damages of two Greek plaintiffs on the grounds of online defamatory statements.


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THE FACTS: The claimants are real estate agents located in Rhodes. They specialize in providing intermediary services for the sale of land on the island, targeting at English citizens living in Greece and the UK. They both conduct a large part of their business activities through the web, being the owners of three web sites, i.e. one for Greece [.gr], one for the UK [.co.uk], and one for the rest of world [.com]. Mid 2006 they have been approached by the respondents. The latter assigned them with the task of recommending a summer house on the island. Following that, a deed of conveyance was signed in early 2007.  It appears that the respondents were dissatisfied with the property. As a result of the above, in 2010 they posted on a number of web sites insulting comments against the claimants with respect to their professional conduct. The comments were written in English, however it is not clear from the text of the decision whether the web sites were registered under the UK country code [.uk] or not. The claimants filed an action for damages against the respondents before the Rhodes 1st Instance Court, which granted relief partially. The respondents appealed. They challenged the international jurisdiction of Greek courts and the application of Greek law in the case at hand.


THE DECISION: The Dodecanese CoA examined the issues of international jurisdiction and applicable law in the following fashion.


a.      It referred to Art. 5.3 Brussels I Regulation as the proper jurisdictional base, and construed the rule in accordance with the e-date decision of the ECJ [C-509/09 & 161/10, Recitals 49-52].

b.      It applied Article 26 of the Greek Civil Code, pursuant to which, torts are subjected to the law of the state where the wrongful act occurred.

The CoA was satisfied with the findings of the 1st Instance court, which assumed jurisdiction and applied Greek law on torts. It therefore dismissed the appeal. 


COMMENTS:This is the first Greek case dealing with cross border online defamation. Until today, there has only been one reported case on the issue of online infringement of IPR [Thessaloniki CoA 121/2010, Civil Procedure Review 2010, p. 844].


a. There is absolutely no reason to be displeased with this decision. It is in sync with EU case law, unlike a ruling on a case I reported previously in this blog [http://icl-in-greece.blogspot.gr/2014/02/greece-no-forum-for-summary-proceedings.html]. Still, I would like to focus on the language issue: By reading the decision, it becomes clear that defamation took place in English. The court did not enter into the discussion, whether the particular language used should/could be a factor for excluding jurisdiction from the courts of a Member State, in this case Greece. A demonstrative example of its significance is illustrated in a ruling of the Bundesgerichtshof from 2011 [NJW 2011, 2059] which declined the jurisdiction of German courts, because the defamatory statement made on the web was written in Russian. Considering the facts of the case, it seems that the Greek court tacitly undervalued the use of English as an impediment for establishing its jurisdiction: As it is evidenced by the decision, the claimants were targeting at English, not Greek clients. Hence, the English language was the proper tool for reaching the widest audience possible (i.e. in the UK and Greece alike), affecting the claimants business activities.       


b. The court invoked axiomatically Article 26 Greek Civil Code, without making any reference to the Rome II Regulation [Nr. 864/2007, on the law applicable to non-contractual obligations], in force since January 11, 2009 [Art. 32]. Mention needs to be made to the following: Pursuant to Recital 39, 40 and Art. 1.4 of the Regulation, the United Kingdom and Ireland are taking part in the adoption and application of the Regulation. Only Denmark is not considered a Member State for the purposes of this instrument. However, under Art. 1 [Scope] Para. 2 g, “the following shall be excluded from the scope of this Regulation: non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation”. Hence, even by omission, the court was right not to refer to the Rome II Regulation and to apply domestic law, given that no other bilateral or international agreement is binding for Greece and the UK in this aspect. The interpretation of the domestic rule was the proper one, by reference to a recent Supreme Court ruling, which granted jurisdiction to Greek courts on a similar case involving a foreign printed magazine [SC 903/2010, Chronicles of Private Law 2011, p. 353]. In essence, the court transferred the arguments used by the ECJ in the e-date case, by adapting them to the applicable law issue.

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