Case number and/or case name
Joined cases C-509/09 and C-161/10 Olivier Martinez and Robert Martinez v MGN Limited (Grand Chamber) [2011] ECR I-10269
Referring court and Member State
France, First Instance, Tribunal de grande instance de Paris
Summary
This joint case on Art 5(3) of Brussels I was referred to the CJEU in two sets of proceedings, between, X (domiciled in Germany) and eDate Advertising (established in Austria), and Olivier and Robert Martinez (a French actor and his father) and MGN (a company governed by English law), concerning the civil liability regarding information and photographs published on the internet. In C-161/10, Olivier and Robert Martinez brought an action in France before the referring court against MGN by complaining of interference with their private lives and infringement of Olivier Martinez’s rights to his image by posting a text on the website of the British newspaper the Sunday Mirror published by MGN. MGN challenged the French courts’ jurisdiction by arguing that there was no sufficient connecting link between the act of placing the text and images at issue online and the alleged damage in French territory, whereas Olivier and Robert Martinez claimed that such a connecting link was unnecessary and that, in any event, there was such a link. The referring court asked the CJEU the interpretation of Arts 2 and 5(3). The CJEU examined how the expression ‘the place where the harmful event occurred or may occur’, used in Art 5(3) is to be interpreted in the case of an alleged infringement of personality rights by means of content placed online on an internet website. It took account of its relevant case-law on the Brussels Convention, in particular C-68/93 Shevill. It already found in Shevill that in the case of defamation by means of a newspaper article distributed in several Contracting States that the term covered both ‘the place where the damage occurred’ and ‘the place of the event giving rise to it’. Therefore, it decided in Shevill that an action for damages against the publisher may be brought either before ‘the courts of the Contracting State of the place where the publisher of the defamatory publication is established’, or before ‘the courts of each Contracting State in which the publication was distributed where the victim claims to have suffered injury to his reputation’. It also held in Shevill that the former had jurisdiction to award damages for all of the harm caused by the defamation whereas the latter had jurisdiction to rule solely in respect of the harm caused in the State of the court seised. Agreeing with AG Cruz Villalón, it found those considerations applicable to other media and means of communication infringing personality rights. However, it distinguished the placing online of content on a website from the regional distribution of media since the former content may be consulted instantly by an unlimited number of internet users throughout the world. It acknowledged that the internet reduces the usefulness of the criterion relating to distribution and decided that the victim may bring an action against the publisher, in respect of all the damage caused, either before ‘the courts of the MS in which the publisher of that content is established’ or before ‘the courts of the MS in which the centre of his interests is based’. This interpretation constitutes a radical departure from Shevill which has created a forum actoris and also judicial law-making with no support from the Brussels I’s preparatory work or from the Recitals. The plaintiff can now sue for all damage in his centre of interests which is usually his habitual residence.