Greece no forum for summary proceedings against Facebook
A first
instance court in Athens declined its jurisdiction in a case filed by two
Athenian lawyers against Facebook on the grounds of violation of their right to
privacy. The Athens court based its ruling on a choice of court clause between
the parties in favor of Irish courts embedded in the General Terms of the
agreement. The decision [Nr. 10013/2013] is published in the
Thessaloniki Bar Review (Armenopoulos), Volume 2013, p. 2421 et seq., with my
comments on the ruling (in Greek).
The facts: Two lawyers
from Athens considered that the impossibility to opt out with regard to the
indications “seen” and “last active”, violated their right to privacy. Consequently,
they filed a request for temporary measures against Facebook, by virtue of
which the latter would be forced to deactivate provisionally the indications
above. The application was properly served to Ireland, i.e. the seat of
Facebook Europe, as evidenced by a certificate of the competent Irish court.
Facebook did not appear in the Greek proceedings.
The ruling: The court
did not enter into the merits. It declined its international jurisdiction on
the following grounds: According to Art. 16.1 of the General Terms on
Facebook’s web site (at that time), the user agreed to resolve any claim, cause of
action or dispute (claim) (s)he had with Facebook arising out of or relating to
this Statement or Facebook exclusively in the
Irish courts. This clause was interpreted by the Athens court as a choice
of court agreement pursuant to Art. 23.1 Brussels I Regulation, thus
establishing the exclusive international jurisdiction of Irish courts in the
main proceedings. Further on, the court ruled that Art. 31 Brussels I Reg. was
not applicable in the case at hand, in light of the case law of the ECJ [Van Uden Maritime BV, trading as
Van Uden Africa Line v Kommanditgesellschaft in Firma Deco-Line and Another, Case C-391/95, ECR 1998, p. I-07091, Hans-Hermann Mietz v Intership
Yachting Sneek BV., Case C-99/96, ECR 1999, p. I-02277], and most notably because Greece could not have
been the place of execution of the protective measure requested.
Comments: Three
important issues are raised in the decision of the Athens court: First, whether
a choice of court agreement extends to tort claims. Second, whether a choice of
court agreement extends to summary proceedings. Third, whether Art. 31 Brussels
I Regulation should be applied, in case we conclude that a choice of court
agreement does not cover provisional measures too. In the latter case, the next
step would be to examine whether the Athens court could have established its
international jurisdiction under Art. 5.3 Brussels I Regulation.
A. No unanimity exists on the first
issue in Greece. Under the Greek Code of Civil Procedure, the predominant view
includes tort claims within the scope of the prorogation agreement. On the
other hand, one has to examine the matter according to the rulings rendered
under the Brussels I regime or its predecessor, i.e. the 1968 Brussels Convention.
During the ‘90’s, two judgments were reported on the matter; both excluded tort
and quasi tort claims from the ambit of Art. 17.1 Brussels Convention. However,
the same courts followed the opposite direction ten years later. No clarity is
coming from legal authority either: Including tort claims to a general
prorogation agreement depends primarily on the free will of the parties; hence
it is clearly a matter of how one construes the agreement.
B. According to the opinion
followed under domestic law, the general choice of court agreement does not
cover summary proceedings, if the protective measures are to be executed in
Greece. Coming to the Brussels regime, no reported case law has been traced in
Greece until now.
C. In line with the rulings of the ECJ, Greek authority supports
the view that, in order for domestic courts to establish international
jurisdiction pursuant to Art. 31 Brussels I Reg., they have to rely on bases of
jurisdiction provided either by the Regulation itself, or by domestic Civil
Procedure Law. In the present case, one needs to refer to the recent ruling of
the ECJ in the case eDate Advertising GmbH / X & Olivier Martinez, Robert Martinez / MGN Limited [C‑509/09 & C‑161/10], which interpreted Art. 5.3
in the following fashion: Article 5(3) of Council Regulation (EC)
No 44/2001 of 22 December 2000 on jurisdiction and the recognition
and enforcement of judgments in civil and commercial matters must be
interpreted as meaning that, in the event of an alleged infringement of
personality rights by means of content placed online on an internet website,
the person who considers that his rights have been infringed has the option of
bringing an action for liability, in respect of all the damage caused, either
before the courts of the Member State in which the publisher of that content is
established or before the courts of the Member State in which the centre of
his interests is based...
Hence, it is clear that several fora are open for the claimant to choose from.
The facts in the case at hand resemble to the facts in the eDate ruling of the ECJ. Still, this decision has not been
taken into account by the Athens court.
Conclusions: Based
on the above, one could draw the following conclusions:
-
The court failed to examine the applicability of the
prorogation agreement to tort claims and summary proceedings. Instead, it
directly accepted the existence of a binding choice of court by following a
rather formalistic construction of Art. 26 Brussels I Reg.
-
The court did not examine ex officio, as it was
entitled to pursuant to Art. 4 Greek Code of Civil Procedure, the application
of art. 5.3 Brussels I Reg.
-
In terms of enforcement, the court saw no connecting
factor with Greece. According to the court’s view, the one and only forum
executionis would have been Ireland. Formally speaking, the court was right:
The measure would have had to be declared enforceable in the Republic of
Ireland. However, the rulings of the ECJ in the Miets and Van Uden cases
are pointing out to the existence of a real “connecting link” in the
pre-Internet era. In torts committed through the web though, effects will be
felt in the place where the injured party has her/his residence, and in our
case the locus was Athens, Greece.
Labels: Brussels I Regulation