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.


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 [], 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 []. 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.


Tuesday 8 April 2014

Multiple citizenship and international jurisdiction in family matters

A decision of the Multi-Member Court of Athens [Nr. 1630/2013, unreported] has recently examined the issue of multi-citizenship in family matters under the Brussels II bis Regulation. The following is a contribution from Ms. Maria Psarra, Trainee Lawyer, LL.M Private International Law (University of Athens).



The Plaintiff, who possesses Greek and Swiss nationality, resident in Switzerland, applied for dissolution of his marriage with the Defendant, a national of both Sweden and Switzerland, also a resident of Switzerland. Further he argues that during the marriage the defendant increased her assets at a total amount of around 3 million euros. What is more, he argues that he contributed solely by 100% to the increase of the Defendant’s assets. Within this background, the Plaintiff asked the court, firstly, to render the divorce, and secondly, to compel the defendant to pay the sum of 3 million Euros plus interest.


1.       Regulation 2201/2003 on jurisdiction, recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Regulation Brussels IIa), took effect from 1.3.2005 among the countries of the European Union, thus substituting the relevant domestic law. Jurisdiction regarding divorce proceedings is determined in accordance with Article 3 § 1 2201/2003. Specifically the aforementioned Article provides for jurisdiction of a Member State court:                 

(a) in whose territory:

              - the spouses are habitually resident, or

             - the spouses were last habitually resident, insofar as one of them still resides there,  or

               - the respondent is habitually resident, or

               - in the event of a joint application, either of the spouses is habitually resident, or

               - the applicant is habitually resident if he or she resided there for at least a year    immediately before the application was made, or                                       

              - the applicant is habitually resident if he or she resided there for at least six months    immediately before the application was made and is either a national of the Member State in question or, in the case of the United Kingdom and Ireland, has his or her "domicile" there;

               (b) of the nationality of both spouses or, in the case of the United Kingdom and  Ireland, of the  "domicile" of both spouses.

2.       Moreover, Article 6 of Regulation Brussels IIa provides that a spouse who:

(a) is habitually resident in the territory of a Member State; or

(b) is a national of a Member State, or, in the case of the United Kingdom and Ireland, has his or her "domicile" in the territory of one of the latter Member States, may be sued exclusively in another Member State only in accordance with Articles 3, 4 and 5.

3.       Further, Article 7 of Regulation Brussels IIa provides that 1. where no court of a Member State has jurisdiction pursuant to Articles 3, 4 and 5, jurisdiction shall be determined, in each Member State, by the laws of that State. 2. As against a respondent who is not habitually resident and is not either a national of a Member State or, in the case of the United Kingdom and Ireland, does not have his "domicile" within the territory of one of the latter Member States, any national of a Member State who is habitually resident within the territory of another Member State may, like the nationals of that State, avail himself of the rules of jurisdiction applicable in that State.

4.       Lastly, Article 17 of Regulation Brussels requires the ex officio investigation of the jurisdiction of the forum State providing that where a court of a Member State is seized of a case over which it has no jurisdiction under this Regulation and over which a court of another Member State has jurisdiction by virtue of this Regulation, it shall declare of its own motion that it has no jurisdiction.

5.       Therefore, the above provisions prevail over (the national rules) the provision of Article 612 § 1 CCP[1]. Thus the Greek nationality of one of the spouses is no longer a sufficient criterion for establishing jurisdiction in the domestic (Greek) courts as to the other spouse, who happens to be a foreigner (EU national) or has his habitual residence in another Member State.

6.       Habitual residence means the place where the person has, in a stable manner, the permanent or habitual center of his interests. To determine that place, all facts establishing the habitual residence, must be considered. Conversely, it is not possible to establish (new) residence at the place of origin or transition, when the link with that place remains opportunistic and presents no intention of abolishing the former habitual residence.

7.        Furthermore, the Court held that according to Greek family law, it is unanimously accepted that the claim of participation in asset acquisitions, made ​​after the dissolution of marriage does not constitute a matrimonial matter and thus is founded on the (national) territorial jurisdiction of the defendant (Article 22 of the CPC). Moreover, the prevailing opinion is that a claim of participation in asset acquisitions is not a matrimonial matter and cannot therefore be exercised in the context of divorce proceedings, submitted in case of alienation of affections between the spouses, which lasted more than three years, under Article 1400 of the C.C.

8.       As regards the last indent of Article 3 § 1 (a), the Plaintiff, which possesses both Greek and Swiss nationality, has not proved that in the last six months before the filing this action, he acquired habitual residence in Greece, in the sense of the usual place of work or family activity, since he pursues independent economic activities as a private investor abroad, and has assumed temporary custody of his daughter who attends a school in Geneva. Moreover, the visits made by the Plaintiff ​​in Greece where only for holiday purposes, combined with visits to relatives and therefore had only sentimental nature, while, in any case, they did not reflect the personal choice of the Plaintiff to move the habitual center of his professional or family activity to Greece. In the light of the foregoing, this means that none of the jurisdiction rules of Art. 3 to 7 Regulation Brussels IIa can apply.

9.       Similarly, regarding the cumulative action for participation in asset acquisitions, the court, pursuant to the principle of procedural economy and efficiency, declared that it does not have international jurisdiction to determine this action, according to the above legal thoughts (see para. 7), considering moreover the residence of the defendant and the place where the disputed assets of the parties are located.


1.       Jurisdiction

10.    As concerns the ex officio investigation of the jurisdiction, it must be pointed that: it is apparent from the facts of the case that none of the jurisdictional rules provided in Article 3 Brussels IIa can apply. As regards specifically the last indent of Article 3 (1)(a) the Plaintiff failed to prove that he had established habitual residence in Greece six months before he applied for divorce. It should be noted that (although the court did not address the issue), taking into account the facts given in the judgment, it appears that no other Member State has jurisdiction pursuant to Articles 3, 4 and 5 . However the application of Article 7 (1) Brussels IIa did not come into play. This is so, because the defendant possesses the Swedish nationality, thus according to Article 6 (a) and (b) a spouse who: (a) has his/hers habitual residence or (b) is a national of a Member State, or, in the case of the United Kingdom and Ireland, has his or her "domicile" in the territory of one of the latter Member States, may be sued exclusively in another Member State only in accordance with Articles 3, 4 and 5, thus prohibiting the application of rules of jurisdiction provided for by national law. Thereby, in this case, although the defendant was habitually resident in a third state (Switzerland), her Swedish nationality “protected” her from being sued in Greece according with Article 612 CPC pursuant to which jurisdiction of the Greek Courts, divorce proceedings may be brought before the Greek Courts when one of the spouses (irrespective of whether it is the plaintiff or defendant) is a Greek citizen or if he/she was a Greek citizen at the time of marriage but relinquish the Greek citizenship due to the marriage to a foreigner. Lastly, it should be observed that court did not engage in the “effective” nationality discussion as regards the application of Article 6 Brussels IIa.

2.      Classification

11.    As concerns the classification, it should be observed firstly that Multi- Party Court of Athens carried out a lege fori classification regarding whether “an action for participation in asset acquisitions”[2] falls within the ambit of matrimonial matters. Without prejudice to the substantial outcome of this classification, a lege fori classification is an incorrect method in the field of European Private International Law. Indeed, it is settled case law that classification in EU PIL shall be based on the autonomous interpretation method in order to achieve the uniform application of the instruments of EU PIL.

12.    Nevertheless, the conclusion as to the classification, reached by the Multi- Party Court of Athens does not seem to have erred in substance. According paragraph 8 of the Preamble of Regulation Brussels IIa this Regulation should apply only to the dissolution of matrimonial ties and should not deal with issues such as the grounds for divorce, property consequences of the marriage or any other ancillary measures. Moreover, the object of the Proposed Regulation of matrimonial property – COM (2011) 126 final - seems to have as a main object actions relating to such as the participation in asset acquisitions provided under Greek family law (Article 1400 C.C.). Indeed, in Article 1 thereof it is reiterated that the notion of 'matrimonial property regime' must be given an autonomous interpretation and embrace considerations of both the spouses' daily management of their property and the liquidation of the property regime as a result of the couple's separation or the death of one of the partners.  It follows, that when applying EU PIL instruments, attention should be paid to the general issues of PIL, such as the legal characterization, in order to ensure their correct and uniform application among the M.S.

[1] Pursuant to Article 612 of the Greek Code of Civil Procedure, jurisdiction of the Greek Courts regarding divorce proceedings can be established  when one of the spouses is a Greek citizen or if he/she was a Greek citizen at the time of marriage but relinquish the Greek citizenship due to the marriage to a foreigner.

[2] According to Article 1400 C.C. if the marriage terminated or canceled and the assets of a spouse have, after the marriage took place, increased due to the contribution of the other spouse, the latter is entitled to claim the increase derived from his/hers contribution.