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.
Labels: Brussels I Regulation