A Swedish webpage blacklisted a particular person and a company. Since that webpage had a discussion forum, its Swedish readers left negative comments on the website too. Unable to get the Swedish website either to rectify the alleged inaccuracies in its publication or remove the hurtful comments, the blacklisted person went to their local court seeking a court order. However, that court was in Estonia. At first instance, the Estonian court declined jurisdiction to hear the dispute because it thought the harm was in Sweden. Therefore, the legal question in this case is: where is the harm with Swedish internet trolls?
Bolagsupplysningen is a company in Sweden. It was blacklisted together with a person associated with it. The blacklist was published on a Swedish website. This website was also furnished with a comments page, which became a forum for negative comments. Soon after the publication appeared on the Swedish website, the blacklisted-company’s profits went down.
The Swedish company and the person concerned attempted without success to get the Swedish website either to rectify the alleged inaccuracies in the publication or to remove the hurtful comments. Consequently, the person decided to go to their local court seeking a court order.
However, their local court was in Estonia. At first instance, the Estonian court declined jurisdiction to hear the dispute. The judge observed that the petition showed that the harm being done was to a company in Sweden, and that harm was financial. In so far as there were negative comments, these were written in Swedish; consequently, Estonians reading them would need a translation. Without any evidence as to harm being suffered in Estonia, the Estonian court had no competence to the hear the dispute.
The judgment was appealed but without success. A further appeal was lodged at the Riigikohus.
At the Riigikohus
The Estonian judges heard the person’s argument that a rectification order and compensation could and should be awarded by the Estonian courts because the centre of the person’s commercial world was now Estonia.
The Estonian judges at the Riigikohus acknowledged that under EU law, the Estonian courts were competent to hear the case in so far as it related to the harm suffered in Estonia.
The judges also recalled the CJEU’s recent website-injunction case law in Pinckney, and Pez Hejduk, but pointed out that those cases related to intellectual property law that was protected in one Member State. That principle might not be applicable here because in this case the person was claiming that their good name and reputation was being affected, and those were rights which were not confined to a Member State.
Consequently, it was unclear to the Estonian judges whether the Estonian courts enjoyed competence to deal with those parts of the person’s claim which related to the rectification order, and or the removal of the hurtful comments on the Swedish website – after all, both of these remedies could only take place in Sweden.
Tampet Tampuu and the two other judges on the bench in the Riigikohus decided to make a preliminary reference to the CJEU.
According to the Curia website, the Riigikohus has asked:
1. Is Article 7(2) of Regulation (EU) No 1215/2012 […] of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters to be interpreted as meaning that a person who alleges that his rights have been infringed by the publication of incorrect information concerning him on the internet and by the failure to remove comments relating to that information can bring an action for rectification of the incorrect information and removal of the harmful comments before the courts of any Member State in which the information on the internet is or was accessible, in respect of the harm sustained in that Member State?
2. Is Article 7(2) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters to be interpreted as meaning that a legal person which alleges that its rights have been infringed by the publication of incorrect information concerning it on the internet and by the failure to remove comments relating to that information can, in respect of the entire harm that it has sustained, bring proceedings for rectification of the information, for an injunction for removal of the comments and for damages for the pecuniary loss caused by publication of the incorrect information on the internet before the courts of the State in which that legal person has its centre of interests?
3. If the second question is answered in the affirmative: is Article 7(2) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters to be interpreted as meaning that:
it is to be assumed that a legal person has its centre of interests in the Member State in which it has its seat, and accordingly that the place where the harmful event occurred is in that Member State, or
in ascertaining a legal person’s centre of interests, and accordingly the place where the harmful event occurred, regard must be had to all of the circumstances, such as its seat and fixed place of business, the location of its customers and the way and means in which its transactions are concluded?
Jurisdiction, remedies and Pinckney is a topic discussed in another reference, this time from the French Court of Cassation; see further, Case C-618/15, Concurrence – a French court’s jurisdiction to hear a dispute involving Luxembourg’s Amazon.
The issue of a tax office ‘blacklist’ and privacy law is currently at stake in Case C-73/16, Puškár – privacy requires removal from a tax office blacklist.
Although not strictly relevant to the present Estonian preliminary reference, the CJEU handed down a judgment two years ago about defamation in the context of newspaper publications on the internet; see further, Case C-291/13, Papasavvas – online libel, defamation and injurious falsehood.
Update – 22 September 2016
Parallel to the law of a person’s reputation is the law of privacy. The Austrian Supreme Court has now made a preliminary reference about whether one particular Austrian can bring an action in the Austrian courts, and do so as a ‘consumer’ on behalf of thousands of other Austrians who are also aggrieved at how Facebook uses personal data …
Update – 23 September 2016
Part of the information contained in the update of 22 September has now been moved; see further, Case C-498/16, Schrems – a Facebook consumer or simply in the business of privacy?
Update – 19 February 2017
The Grand Chamber is due to hear this case on 20 March 2017.