Tuesday, 25 February 2014

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.