Sara De Nicolò
Damages and Injunctions against cross-border online
defamation. Should Bolagsupplysningen and Ilsjan
(C-194/16), as for jurisdictional rules, be seen as “the end
of the story”?
Name: Sara De Nicolò
E-mail:
saderanicolo@gmail.com
Student number: 12314110
Master track: European Private Law
Name of supervisor: mw. prof. dr. A.A.H. (Aukje) van Hoek.
Date of submission: 26
thJuly 2019
Table of Contents
Chapter 1.
Introduction
1.1. Online defamation and private international law
1.2. Legal background
1.3. Research question and delimitation
Chapter 2.
The evolution in the interpretation of Art. 7(2) Brussel I
Recast in the matter of torts against personality rights
2.1. From Shevill to eDate: the role of the mosaic approach
2.2. Bolagsupplysningen and Ilsjan (C-194/16)
2.3 Is the Bolagsupplysningen and Ilsjan (C-194/16)
case “the end of the
story”?
Chapter 3.
Damages and injunctions: a jurisdictional challenge
3.1. Foreword
3.2. What remains of the mosaic approach?
3.3. Injunctions as protective measures
3.3. Summary
Chapter 4.
Further implications
4.1. The involvement of criminal proceedings
4.2 Summary
Chapter 5.
Conclusion
Abstract
Online defamatory torts with transnational implications have become a challenging issue for Private International Law. The ubiquity of cyberspace challenges the traditional rules on jurisdiction, at the expense of legal certainty.
In Bolagsupplysningen and Ilsjan (C-194/16) case the CJEU case refines two doctrines in the field of international jurisdiction for torts falling under article 7(2) of the Brussel I Recast Regulation: the center of interest and the mosaic approach. The latter is restricted when universal injunctive reliefs are sought. Additionally, the establishment of a partial head of jurisdiction is not enough to confer jurisdiction for ordering injunctive reliefs. The aim of my research is to investigate the relationship between the application of this restriction and the existing jurisdictional rules under the Brussel I Recast Regulation. I will consider both damages and injunctions, requested on merit, or only the latter, as a preventive measure.
Secondly, the inquiry extends on whether further implications need to be taken into account under jurisdictional rules, when the civil claim is joined to the criminal proceedings under article 7(3).
The first part of my analysis focuses on the extent of the survival of the mosaic approach, by following two keys to reading the Boü restriction: a full restrictive approach based on which no exceptions are permitted anymore; a more lenient one, which recognizes the potential of geo-blocking technologies and accordingly the survival of the mosaic approach. Then, my scrutiny underlines the challenges posed by article 35 in terms of jurisdictional issue and divisible remedies. Under those circumstances, the Boü logic cannot be easily transposed in practice.
The second part of my work on one hand explores the extension of the adjudicative power of the court seized when the civil claim comes under the reading glass of criminal proceedings. On the other hand, the outcome is measured in respect of the interpretation provided by the Boü case.
The results show the relationship between the Boü restriction and the current rules as being inconsistent.
Therefore, the overall picture of jurisdictional rules as interpreted by the Court in the Boü case does not reflect the legal certainty aspired to by the Regulation, in terms of consistency with other provisions and stability.
Chapter 1.
Introduction
1.1. Online defamation and private international law
Defamation in common knowledge has been described as the publication of content which injures the reputation of another person “by exposing him to threat, contempt or ridicule, or
which tends to lower him in the esteem of right-thinking members of society”1. The focus is
on damage to reputation and, consequently, what matters is an act where the publisher makes available a piece of information and a third party comprehends it, in an environment where the injured person is known or can be known. Consequently, defamation is uniquely dependant on the recipient who sees, reads or hears the statements. In contrast, violation of privacy may already occur with the intrusion into the private sphere2.
Damages are the common remedy sought by the harmed party, but especially nowadays, in the Internet era, the prevention of the publication in the first place or its rectification or removal afterwards are requested as well3. In literature as well, the importance of
injunctions and their correlation with damages is gaining attention4.
Defamation law has evolved over centuries and each State, based on its inherent set of values, has developed a diverse balance between the fundamental rights and freedoms which are innately in conflict in defamation actions5. On one hand, there is the freedom of
expression of the publisher, and on the other hand the right of the victim to have their private life and privacy respected.
In our modern world, contents liable to violating personality rights are distributed through various media channels simultaneously: print, broadcast, the Internet, Twitter, Facebook etc. They become available swiftly on a global basis. Besides, they are accessible, at least in principle, forever6. Hence, the changes resulting from communication technologies pose
serious legal challenges: precisely, concerning our focus of interest, the likelihood of cross-border defamation (online and offline) increases exponentially, potentially involving more
1Maier B., (2010) “How Has the Law Attempted to Tackle the Borderless Nature of the Internet?”,
International Journal of Law and Information Technology Vol. 18 No. 2 © Oxford University Press, p. 148.
2 Oster J., (2012) “Rethinking Shevill. Conceptualising the EU private international law of Internet torts
against personality rights”, International Review of Law, Computers & Technology, 26:2-3, p. 116.
3Kuipers J.J. (2011), “Towards a European Approach in the Cross-Border Infringement of Personality
Rights”, 12 German L.J. p. 1684.
4 Svantesson D.J.B., (2017) Solving the Internet Jurisdiction puzzle, p. 174.
5 Collins, M. (2014). Collins on defamation. Oxford, UK: Oxford University Press, p. 4. 6 Van Calster G., (2016) European Private International Law, II ed., p. 145.
than one legal system. Therefore, the Private International law framework comes into play dictating, in short, the rules on jurisdiction and applicable law when the proceedings are not purely internal.
What is more, compared to other torts, defamation raises important questions regarding which court should adjudicate the claim, due to higher chances of having a multitude of jurisdictions available (the “libel tourism” phenomenon)7. Contrary to newspapers or
broadcasting where there is an action which makes the content available and limits its dissemination, Internet publications are governed by an opposite logic: an action is necessary to prevent the availability of a content or to limit its reach8. Within that scenario,
it is less easy to fully control in which jurisdiction the publication has circulated.
Therefore, several courts could be potentially called to address a libelous claim. The multiplication of fora could obfuscate the overall picture of legal certainty and foreseeability. Because of the ubiquitous and borderless nature of the Internet, a different approach is needed when traditional private international law questions have to be answered.
Firstly, because the connecting factors under private international law rules are designed to be inherently territorial: they localize persons, things or actions within a territory. Cyberspace, on the contrary, does not coincide with national boundaries: it transcends them and eliminates the conventional borders within which the private international law of a given state can be applied. As a result, it may be difficult to ascertain where the information is stored, where the harmful event took place and where the wrongdoer is located. The mobility of data does not fit in the traditional jurisdiction’s anchor points.9
Secondly, because the simple transposition of the traditional mechanism to allocate jurisdiction ultimately turns out to be inadequate to address online distance torts. Moreover, the risk of conflicting judgment or of multiple claims regarding the same parties will generally undermine the legal certainty and also the compensation and the restoration of his/her reputation which the harmed party is ultimately looking for.
7 Mills A, (2015) “The law applicable to cross-border defamation on social media: whose law governs free
speech in ‘Facebookistan’?”, Journal of Media Law, 2015 Vol. 7, No. 1, p. 2.
8 Cases C-509/09 eDate Advertising GmbH v X and C-161/10 Olivier Martinez and Robert Martinez v MGN
Limited, para 50.
1.2. Legal background
Within the European Union, the competence in cross-border civil and commercial matters is regulated uniformly according to the Brussel I Recast Regulation, which has replaced the Brussels I Regulation as of 10 January 201510. In addition to the general rule (actor sequitur
forum rei)11, article 7(2) allows the prospective litigants to opt for a supplementary head of
jurisdiction in matters of tort, delict or quasi-delict before the courts of the place where the harmful event occurred or may occur. In determining a tort, a harmful event or the place of the harmful event, the autonomous criteria of interpretation must be taken into account, disregarding any reference to national law. In that respect, dating back to the leading
Reinwater case12, the CJEU pointed out that “the place of the event giving rise to the
damage no less than the place where the damage occurred can, depending on the case, constitute a significant connecting factor from the point of view of jurisdiction13” (the
ubiquity principle). Accordingly, when the place where the damage occurred and the place
of the event giving rise to it differ, the claimant can choose where to sue.
The grounds of special jurisdiction are based on a closer connection between the court and the action, in order to ensure legal certainty and to facilitate the sound administration of justice14.
The aforesaid considerations are particularly important in disputes concerning non-contractual obligations originating from defamation. The European Court of Justice (hereinafter CJEU) has been one of the driving factors in the attempt to find a way to tailor the interpretation of article 7(2) in a sensitive way, in order to cover the specific tort of defamation: firstly, when caused by written press and, more recently, also when occurring in cyberspace15. Potentially, as the further analysis will show, the adjudicatory competence can
be anchored in the state where the publisher is domiciled, or, according to the principle of
10 Regulation 1215/2012 (EC) of 12 December 2012 on jurisdiction and the recognition and enforcement of
judgments in civil and commercial matters (recast).
11 Article 4 Brussel I Recast Regulation.
12 Case C-21/76 Bier v. Mines de Potasse d’Alsace SA. 13 Case C-21/76 Bier, idem, para 15.
14 Magnus U., Mankowski P., Comment on article 7 (2), European Commentaries on Private International
Law, Vol. I, Brussel Ibis Regulation, p. 263.
15 Cases C-509/09 eDate, idem; and Case C-194/16 Bolagsupplysningen OÜ, Ingrid Ilsjan v Svensk Handel
ubiquity, when this leads to a different forum, where the publisher is established. Ultimately, also in each country where the libelous content was read or accessed16.
The CJEU went even further by creating the center of interest test as an alternative full head of jurisdiction for defamation claims17. Even more interestingly, the Court recently
confirmed that approach by limiting the issuance of a universal injunction within the court having full jurisdiction (which is likely to coincide with that identified by the center of interest test, the domicile of the defendant or the place of establishment of the publisher)18.
The current case law of the CJEU is concentrated on Article 7(2). However, Article 7(2) is not the only provision given alternative jurisdiction in case of defamation. Article 7(3) provides the possibility for the claimant to handle the civil claim under Brussel I Recast Regulation as annex matter in criminal proceedings, if the applicable national law on criminal procedure allows so19.
Furthermore, the Regulation provides a further jurisdiction ground for provisional measures in article 35. Provisional measures aim to assist parties whose claims are at risk or to protect them from adverse effects caused by the time needed for the final settlement of the dispute. When their request is aimed at contrasting the circulation of a libelous content, they might take the shape of an injunction ordering the rectification or removal of the injurious statements.
These interim reliefs can be requested from a court which already has jurisdiction on the substance of the claim or from another court, even if the first has already established its competence or even ante causam, if the Court of merit still has to be seized20. The Brussel I
Recast Regulation, like its predecessors, refers to national laws for both the content and the conditions of provisional measures. Therefore, due to the existing divergences in the definition and availability of specific provisional legal protections in the European Member States, the risk of forum shopping is not a side issue.
Within the system of recognition and mutual trust of the Brussel I Recast Regulation, the recognition and enforcement of provisional measures require specific attention. Moreover,
16 Carrascosa Gonzales J., (2016/2017) “Distance torts: the Mines de Potasse Decision forty years on”,
Yearbook of Private International Law, Vol. 18, p. 29.
17 Cases C-509/09 eDate, idem.
18 Case C-194/16 Bolagsupplysningen OÜ, idem.
19 Magnus U., Mankowski P., Comment on article 7 (3), European Commentaries on Private International
Law, Vol. I, Brussel Ibis Regulation, p. 340.
provisional measures granted by a court lacking in competence on the substance are excluded from the circulation within the Brussel system21.
1.3. Research question and delimitation
The precondition of my research is to investigate the current situation of online torts against personality rights, in particular online defamation, from a private international procedural perspective within the European legal framework. My main focus of interest are the possible implications of the Boü judgement in terms of jurisdictional issues.
Why defamation and why specifically a jurisdictional target?
As for the former, people are attracted to and sometimes forced in their ordinary life to deal with the Internet and Social media. These are used to communicate, to make purchases, to gain public information, to look for a job. Apparently, there is also the perception of the Internet as a “wild west”, where law cannot be easily applied and where our freedom to speak and to hurt someone else’s reputation is wider than in the offline environment22. In
light of this, I am interested in exploring the frontiers of the European legal framework, in terms of which Court is legally allowed to adjudicate such a claim, when it comes to online defamation in cross-border situations.
As for the latter, the focus on jurisdiction is motivated by the fact that answering the question of which Court is deemed to be competent in cross-border proceedings is the first step in order to have access to justice. Once the competence is established, it is possible for the parties whose interests are at stake to foresee how the matter will be administered, the costs which they will incur, which interim measures and possible redresses are available. Besides, the choice of law has not been harmonized by the EU legislator yet: the Rome II Regulation explicitly excludes from its scope non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation (article 1, §2 g).
My analysis will start in chapter 2 where I will present the leading cases where the CJEU was called to clarify the interpretation of article 7(2) Brussel I Recast Regulation. Then, I
21 Honorati C., (2012) “Provisional Measures and the Recast of Brussel I Regulation: a missed opportunity
for a better ruling”, Rivista di diritto internazionale privato e processuale, p. 543.
22 Geist M., (2017) Law and Technologies, Why less is more when it comes to Internet Jurisdiction,
will take the most recent Bolagsupplysningen OÜ, Ingrid Ilsjan v Svensk Handel AB case (hereinafter the Boü case) as a point of departure in order to gain a better understanding of the current situation and the possible implications in terms of jurisdiction issues within the legal framework of the Brussel I Recast Regulation23. In the above-mentioned case, the
CJEU does not seem to completely depart from the established mosaic approach. However, the Court bases its assumption considering injunctions only as indivisible remedies. The European Judges give the impression of circumscribing the Shevill doctrine when it comes to injunctions against the wrongdoer: they can be granted only before the court having jurisdiction over the entirety of the harm suffered.
Consequently, from my research, the question arises: “Should the Boü case be seen as “the end of the story” in the debate on the adjudicatory powers of the Court seized, when
damages and injunctions against cross-border online defamation are at stake, whether requested together or separately?”.
The “end of the story” is to be understood as a twofold inquiry: firstly, on unresolved issues, in terms of what was not addressed or specified by the Court, but is relevant for jurisdictional rules under the Regulation. Secondly, on the relationship between the Boü restriction of the mosaic approach and the current rules under the Brussel I Recast Regulation.
More precisely, what then remains of the mosaic approach and of the partial head of
jurisdiction where the damage occurred, seeing as there are no injunctions and they are not
complementary with the awarding of damages in defamation torts? The CJEU’s answer is based on the assumption that a full head of jurisdiction can be anchored at the center of interest of the defamed person. Only when that condition or the general connecting factor allowing a full head of jurisdiction are fulfilled, can an injunction be granted.
In addition, the Brussels I Recast Regulation offers other instruments to grant relief to the injured party even temporarily, despite the allocation of a full head of jurisdiction, under article 35. Therefore, can the preventive measures requested ante causam or before a judge
without jurisdiction under the Brussels Regulation trigger the jurisdictional issue? Can the
Boü restriction have any influence in that regard?
Chapter three will address the above-mentioned sub questions, starting from the CJEU’s reasoning in the Boü case and on what has not been touched therein.
23 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on
Additionally, a further sub question arises about the involvement of the criminal proceedings. Under the option of article 7(3): “does the extended competence to civil
proceedings, which works, among others, in favor of the place where the tort was committed, (despite the partiality of the damages incurred in that State), match with the Boü restriction?” Accordingly, Chapter 4 will deal with the involvement of criminal
proceedings and their impact on the court’s jurisdiction matter.
Based on the assumption that it is not implausible that the hypotheses underpinning my sub questions could occur and that the Boü case did not have the chance to address them, I am interested in understanding the possible coherence among the former and the Boü reasoning and whether its outcome can be consistent if articles 35 and 7(3) are involved.
In light of this, my study will attempt to answer the research question and the sub questions. The Boü restriction and its relationship with the currently existing rules will be evaluated in light of the parameter of legal certainty24. This principle is of paramount importance for
guiding the practical application of the Brussel I Recast Regulation and for fostering the interpretation of its provisions in accordance with the goals of the European Space of Freedom and Justice. The legal certainty principle embraces the concept of foreseeability and predictability of the law governing the parties’ conduct, but also its stability and consistency with other norms25.
My evaluation will test the Boü restriction and its relationship with the currently existing rules against the standard of stability and consistency.
Finally, the conclusion in Chapter 5 will summarize the line of reasoning presented.
The present research aims to focus only on jurisdictional issues. It is acknowledged that questions on jurisdiction and applicable law are closely interlinked and that the former is likely to impact the latter to some extent. Nevertheless, the discussion will not cover the conflict of law issues nor will it extend to cross-border violation not covered by the Brussel I Recast Regulation.
The research method employed will be descriptive with an evaluative approach and an internal perspective. My analysis will be based on the relevant CJEU judgments, the relevant European legal framework, the judicial commentary as well as the correlated academic literature.
24 Recital 16 Regulation (EU) No 1215/2012.
25Rodríguez, M. P. (2016). “A Missing Piece of European Emergency Law: Legal Certainty and Individuals”
Chapter 2.
The evolution in the interpretation of
Art. 7(2) Brussel I Recast
in the matter of torts against personality rights
2.1. From Shevill to eDate: the role of the mosaic approach
The establishment of the mosaic approach dates back to the well-known Shevill case26,
where the CJEU stated that, relating to a defamation lawsuit against an article published in a newspaper and then distributed towards multiple jurisdictions, the former Brussels Regulation provides two (or even three) alternative jurisdiction grounds: the domicile of the publisher (mirroring the general rule) or where the publisher is established, if the two lead to a different result; and ultimately where the publication was distributed, if the victim was known in those places. Therefore, in the latter scenario, the victim can bring a lawsuit before the court of each state in which the publication was distributed as far as the related damage actually occurred within that forum27.
The Bier decision was, accordingly, adapted to apply to a “receipt-oriented” tort like defamation28. A further specification needs to be made: the extent of the adjudicatory power
of the Court seized mirrors the scope of the different connecting factors mentioned above. Indeed, the Court before which only a partial distribution of the libelous contents was made circumscribes its ruling in respect of the harm which was suffered therein29.
The Shevill doctrine concentrates full compensation to one (or maximum two) jurisdiction(s). On one side the publisher can decide where to establish their business and where to publish their information; on the other the claimant can vindicate his/her reputation everywhere it was damaged30.
26 Case C-68/93 Shevill v Presse Alliance SA. 27 Oster J., (2012), idem, p. 115.
28 Gillies L., (2012) “Jurisdiction for cross-border breach of personality and defamation: E-Date advertising
and Martinez”, International & Comparative Law Quarterly, Vol. 61, p. 1010.
29 Magnus U., Mankowski P., Idem, p. 279. The authors describe the mosaic approach as a much-welcomed
approach to counterbalance the multiplication of jurisdiction and the burden of proof for the defendant caused by the principle of ubiquity, as originally set in Bier.
30 When addressing special jurisdiction, the inquiry into damages cannot extend too far. For instance, a mere
spillover effect, i.e. an accidental distribution of a publication in a country where it is not intended to be distributed, accordingly to some authors, ought to be ruled out. Among them, see Bigos O., (2005)
“Jurisdiction over cross-border wrongs on the internet”, International & Comparative Law QuarterlyVol. 54, p. 601. See also Case C-364/93 Marinari v Lloyds Bank plc and Zubaidi Trading Co.
As we will see, when the same torts take place on the Internet31, further issues will arise
such as the multiplication of the possible locus damni, due to the universal distribution of the information in cyberspace.
In its eDate judgment32, the CJEU was confronted with the violation of personality rights
via the Internet. As the publication took place online, here the damages to the claimant were alleged to have taken place not only where the original publication was made, but in several countries where the content was accessible. This case represents a further contribution into the development of the interpretation of article 7(2) Brussels I Recast Regulation by considering the specific features of Internet torts33.
First of all, the ubiquity of the Internet leads to data being available swiftly and instantly everywhere. Accordingly, the distribution of content placed online is in principle universal. Consequently, the localization of defamatory Internet transactions within a given jurisdiction can be less accurate or purely fortuitous. In any case, the number of eligible loci
delicti commissi can easily multiply.
Furthermore, due to the specific features of defamation, the content needs to be read and comprehended by the reader: hence arises the question whether the mere accessibility in a given jurisdiction is enough in order to satisfy the Shevill rule or, when a special connection is required, what relevant criteria should be considered in order to determine the connection34.
Both cases in eDate were related to defamatory torts which were alleged to have occurred in consequence of information and images accessible through websites in jurisdiction other than where the defendant was domiciled. In the first (eDate Advertising Gmbh) an injunctive relief was requested, while in the second (Olivier and Robert Martinez) claimants sought damages.
The CJEU confirmed the mosaic approach by granting jurisdiction to the national courts where the website containing the injurious statements was accessible, but solely for the
31 Pretelli I., (2018) Conflict of law in the maze of digital platforms, p. 99. 32 Cases C-509/09 eDate, idem.
33 Von Hein J., (2014/2015) “Protecting victims of cross-border torts under article 7 no. 2 Brussels I Bis:
towards a more differentiated and balanced approach”, Yearbook of Private International Law, p. 266.
damage suffered on that territory. In that regard, the mere accessibility (passive in nature) seems to be enough to trigger the jurisdiction of the Court where the damage occurred35.
Moreover, the Court, partially following the Advocate General’s reasoning36, establishes a
third ground of jurisdiction with full competence, as an additional option: the center of the victim’s interest. The CJEU argues that “the place where a person has the center of his
interest corresponds in general to his habitual residence. However, a person may also have the center of his interest in a Member State in which he does not habitually reside, in as far as other factors, such as the pursuit of a professional activity, may establish the existence of a particularly close link with that State.37”. The attribution of jurisdiction to that Court is
thought to correspond to the objective of the sound administration of justice38 and to respect
predictability as well. The latter would be preserved also in respect of the defendant, who would be in the position to foresee the center of interest of the person subject to the defamatory content39. Furthermore, if the center of interest cannot be established (it should
be noted that a victim can have only one center of interest), the pre-eDate reasoning still applies, and the claim can be pursued at the domicile of the defendant, the place giving rise to the damage or the place of direct damage40.
To sum up, the plaintiff detains the following options: suing the defendant at his domicile in order to recover the full damages, suing at his center of interest, again in order to recover the entire damage, or finally suing where the damages occurred, however limited to what was suffered in the respective forum41.
From the above, it must be inferred that the judges, to some extent at least, maintained the
Shevill formula in cyberspace, but at the same time introduced a third forum. Nevertheless,
if the plaintiff chooses to rely on the center of interest test to start the proceedings, the room for the mosaic approach is limited.
35 Vanleenhove C., (2018) “The European Court of Justice in Bolagsupplysningen: The Brussel I Recast
Regulation jurisdictional rules for online infringements of personality rights further clarified”, Computer Law
& security Review 34, p. 643.
36 Cruz Villalòn AG, Opinion, eDate, idem, para 58. 37 Cases C-509/09 eDate, idem, para 49.
38 Cases C-509/09 eDate, idem, para 48. 39 Idem, para 50.
40 Gillies L. idem, p. 1016.
2.2. The Bolagsupplysningen and Ilsjan case (C-194/16)
From the eDate ruling it can be inferred that the mosaic approach remains in place. Moreover, this raises the question whether the courts whose jurisdiction is only partially conferred, reflecting the small portion of the overall damage, should also be able to grant an injunction based on their limited adjudicatory power. The wording of article 7(2) Brussel I Recast Regulation does not seem to stand against it, nor can any other ban be found in the legal framework of the Brussel I Recast Regulation.
However, in practice, it would require an intervention which is territorially limited and which keeps up with the new technological developments enabling the removal or the blocking of certain content from the online environment 42.
In the Boü case, the CJEU has been recently confronted with the request for a universal injunctive order of removal and rectification of defamatory contents from cyberspace 43. The
judgment represents another building block in the long line of case law dealing with the interpretation of article 7(2) of the Brussel I Recast Regulation when infringements of personality rights take place.
The claim at stake was brought by an Estonian company which had been blacklisted on the website of a Swedish trade association because the latter stated that the company was involved in unfair business practices. Moreover, the website, in the discussion forum, contained more than 1000 comments in response to the blacklisting, including calls for acts of violence against the Appellant and its employees44.
Then, Bolagsupplysningen requested the Estonian courts to order a universal injunction for the rectification of the information and deletion of the comments. On a secondary basis, compensation for the harm suffered was asked as well. The case reached the Estonian Supreme Court which referred to the CJEU for a preliminary ruling three questions concerning the interpretation of article 7(2) of the Brussel I Recast Regulation. The questions were: 1) whether a victim of personality rights infringement committed on the Internet can bring an action for the rectification and removal of the libelous contents in the Member State where the information is or was accessible; 2) whether the center of interest
42 Lutzi T., (2017), “Internet cases in Eu Private International Law- developing a coherent approach”,
International & Comparative Law Quarterly, Vol. 66, p. 692.
43 Case C-194/16 Bolagsupplysningen OÜ, idem, para 20. 44 Idem, para 12.
basis of jurisdiction extended to legal persons, and, if so 2 b) what criteria and circumstances should be considered to determine the center of interest of legal persons.
Starting from the second question, the CJEU finds that the reasoning in eDate is equally applicable to legal persons whose personality rights were infringed on the Internet45.
The Court rules that the matter of whether the victim is a natural or legal person is not conclusive per se46.
Insofar as the center of interest of the harmed person coincides in practice with the forum
actoris, it is not deemed to provide him/her any kind of additional protection.
The justification behind the choice of the court cannot be inferred from the special protection of the defamed party, as is the case with the special jurisdictional rule for consumers. On the contrary, the “new” forum actoris represented by the center of interest is justified in light of the sound administration of justice. 47
As far as the localization of a legal person’s center of interest is concerned, the CJEU stated that it must reflect the place where the legal person’s commercial reputation is most firmly established and must, therefore, be determined by reference to the place where they carry out the main part of their economic activities48. Moreover, the Court specifies that the
location of the registered office cannot be, in itself, a conclusive criterion for the purpose of establishing the center of interest49. In the case at hand, despite the registered office in
Estonia, the defamed company carries out the main part of its activities in Sweden. Besides, the libelous comments in the site managed in Sweden are written in Swedish and mostly intended to be understood by people living in that country50. Accordingly, the center of
interest leads to conferring full jurisdiction to the Swedish courts. As for the Estonian ones, their adjudicatory power, whether possible, is limited to the local harm suffered.
In line with the eDate reasoning, the CJEU confirms that the center of interest has to be identifiable in order to be invoked as a basis of jurisdiction. This is a restriction to the option
45 See also AG Bobek Opinion in Case C-194/16 Bolagsupplysningen OÜ, para 40.
AG discusses extensively whether legal persons enjoy personality rights. Two main points need to be pointed out: under the European Charter of Fundamental rights article 16 and 17 militate in favor of a protective approach towards companies’ reputation; under national statutory law companies already enjoy a certain degree of protection. Accordingly, he concludes that a different treatment for legal persons for the purpose of establishing jurisdiction under article 7(2) Brussel recast Regulation would not be warranted (para 61-69).
46 Vanleenhove C., idem, p. 644.
47 Case C-194/16 Bolagsupplysningen OÜ, idem, para 38-39.
48 AG Bobek in his opinion places the center of interest in the Member State where the company attains the
highest turnover. AG Bobek Opinion, idem, para 104.
49 Case C-194/16 Bolagsupplysningen OÜ, idem, para 41. 50 Idem, para 42.
of this advantageous additional forum: it is only open to the plaintiff when his activities are mostly carried out in a particular Member State and the evidence presented to the Court seized in that country investigating the extent of its own jurisdiction supports this51.
Moreover, it has been argued that if legal persons (but this can also be true for natural persons) carry out economic activities in more than one Member State, their center of interest is not likely to be identifiable52.
Turning to the first question, the removal and rectification of the libelous information, the CJEU excludes that such an action can be based on the mere accessibility from a Member State in order to confer jurisdiction to its courts. Notwithstanding the fact that a similar application has been made in eDate, the CJEU in that case did not further elaborate on the relationship between the partial head of jurisdiction and the issuance of an injunction since the referring court’s jurisdiction was based on the center of interest criterion.
The reference to the accessibility of the defamatory online content in eDate was only limited to damage awards53.
In Boü the CJEU held that actions for the rectification and removal of content infringing personality rights cannot be brought before the courts of each Member State in which the information published on the Internet is or was accessible54.
The Court stated that “ in the light of the ubiquitous nature of the information and content
placed online on a website and the fact that the scope of their distribution is in principle universal… an application for the rectification of the former and the removal of the latter is a single and indivisible application and can, consequently, only be made before a court with jurisdiction to rule on the entirety of an application for compensation for damage... and not before a court that does not have jurisdiction to do so”55.
By limiting the application for rectification and removal for the libelous content within jurisdiction for the total harm suffered, the CJEU deviated from the Advocate-General’s Opinion. Bobek argued that there are no legal bases for limiting a competent court56, despite
the entirety or the partiality of the damages therein occurred, once its international
51 Vanleenhove C., idem, p. 645.
52 Lutzi T., (2019), “Shevill is dead, long live Shevill!”, Law Quarterly Review, 134, p. 2. The author criticizes
that the CJEU created such a high threshold for invoking the center of interest basis of jurisdiction.
53 Lutzi T., (2019), “Shevill is dead, long live Shevill!”, idem, p. 3. 54 Case C-194/16 Bolagsupplysningen OÜ, idem, para 49.
55 Idem, para 48.
competence has been established and a possible remedy exists under national law57. In his
view, basing his assertion on the unitary nature of the source of the alleged harm, it would be absurd to extrapolate a court’s partial competence with regard to damage to the level of a partial competence to issue an injunction58. However, it must be pointed out that Bobek’s
reasoning is based on his suggestion, not followed by the Court, to abandon the Shevill approach. It is his belief that only by limiting the international jurisdiction over Internet-related tortious claims to two heads of special jurisdictions, will irreconcilable judgments be avoided and the predictability and sound administration of justice be assured.
Overall, the CJEU in Boü does not depart completely from the mosaic approach. It remains in place but the Court stresses the inconsistency between the ground of a universal injunction and the mosaic approach which maintains its original extension only for pecuniary relief. Accordingly, only before a Court whose adjudicatory power extents to the entirety of the harm suffered, can a universal injunction for the rectification and removal be granted as well as the recovery of the damages. The CJEU further confirms the forum
actoris of the center of interest also for legal persons claiming that their rights have been
infringed on the Internet. Moreover, the Court clearly specifies that article 7(2) is not conceived as a weaker party protective head of jurisdiction.
2.3. Is the Bolagsupplysningen and Ilsjan (C-194/16) case “the end of the
story”?
In the Boü case the CJEU refines two of its controversial and well-known doctrines in the field of international jurisdiction for torts: the center of interest approach, as introduced in
eDate, and the mosaic approach, which originated from the Shevill doctrine59. As for the
former, when identifiable, regardless of the involvement of private or legal persons, it allows to establish a full head of jurisdiction before the Courts seized. The center of interest
57 Jütte B. G., (2017) “AG Bobek suggests limiting jurisdiction for online defamation of legal and natural
persons (C-194/16, Bolagsupplysningen and Ilsjan)”, <europeanlawblog.eu/2017/12/06/mere-accessibility-of-a-website-does-not-trigger-jurisdiction-for-injun ctions-when-personality-rights-are-infringed-ecj-c-19416-bolagsupplysningenilsjan/> (last visited 12 December 2018).
58 AG Bobek Opinion, idem, para 128.
represents the place in which the claimant enjoys his greatest reputation and at the same time the closest connection to the claim.
Turning to the latter, the Court’s decision resizes the mosaic approach. In the Boü case, the primary request of an injunction for the rectification and removal of the libelous contents leads the Court to shift from the general distinction between partial and overall territorial damages to the divisibility or the indivisibility of the remedies invoked. The latter distinction is crucial when actions such as injunction of the removal of information from the online environment are requested. The Court acknowledges this issue and states that the mere accessibility of the content is not enough to establish a partial head of jurisdiction where the damages locally occurred, if an injunctive relief of this kind is sought.
Unfortunately, in the Boü case the Court left unresolved several issues related to the special head of jurisdiction of article 7(2) for defamatory online torts. On one hand, part of them were not specifically addressed by the referring court; on the other hand, others can potentially be gathered from its reasoning, but without any clear confirmation in that regard from the legal framework available or from the words of the European Judges60.
Accordingly, this research aims to further address “what is left” from the CJEU’s reasoning in the Boü case and to scrutinize the relationship between the Boü restriction of the mosaic approach and the current rules under the Brussel I Recast Regulation.
The latter will be analyzed in the light of the objective of legal certainty within the Brussel I Recast Regulation. More precisely, their relationship will be tested against the goal of stability and consistency.
In the ideal scenario in which the center of interest of the harmed person can be identifiable, and damages and injunctions are jointly requested, the Court located in the place of the center of interest enjoys a full head of jurisdiction. Accordingly, there are no impediments for awarding compensatory damage and injunctive reliefs. The same results apply when the defendant is sued at his domicile, under the general criteria (actor sequitur forum rei). The full head of jurisdiction is anchored on predictable criteria for the plaintiff and for the defendant. Multiple claims are avoided by the exclusion of the competence of all other fora in whose territory a partial harm was suffered.
60 Lundstet L., (2018) “Putting Right Holders in the Center: Bolansupplysningen and Ilsjan (C-194/16): What
Does It Mean for International Jurisdiction over Transborder Intellectual Property Infringement Disputes?”,
IIC - International Review of Intellectual Property and Competition Law, November 2018, Volume 49, Issue 9,
However, the scope of the Boü decision is limited to the indivisible remedies and does not seem to diminish the claimant’s right to invoke the mosaic approach for compensatory damage claims61. In that respect, the question arises regarding what remains of the partial
head of jurisdiction of the place where the damage occurred. This inquiry includes a further evaluation of the relationship between the survival of the mosaic approach and the Boü restriction.
Still, it is not unlikely that the center of interest cannot be identifiable. It is sufficient that the harm of reputation be equally established in two Member States to exclude a clear identification which of the two places should prevail. As already stated in eDate and then confirmed in Boü, in that case the center of interest cannot be invoked as a jurisdictional basis. Accordingly, by adopting an interpretation in line with the CJEU, the Boü restriction of the mosaic approach should remain in place when injunctive reliefs are requested before the Court where the damage occurred. This would preserve the coherence of the assumed indivisible remedies.
However, indivisibility does not pertain to all injunctive measures.
The content of the injunctive relief is a matter of national substantive law. The differences among diverse types of injunctions (for instance whether they are geo-localized or not, or temporarily limited) risk to undermine the thesis according to which the underlying inconsistency between the ground of an injunction and the mosaic approach cannot be easily solved.
Moreover, if the precondition of the indivisibility of the injunctive relief is abandoned, it could be argued that some room is still available for the Shevill doctrine to confer partial jurisdiction for issuing a territorially limited injunction.
The issue of jurisdiction and its extension in terms of the Court’s adjudicatory power when online defamation torts take place is further challenged by the presence of two other provisions under Regulation Brussel Recast: article 35 and article 7(3).
61 Jütte B. G., (2017), “Mere accessibility of a website does not trigger jurisdiction for injunctions when
personality rights are infringed (ECJ, C-194/16, Bolagsupplysningen/Ilsjan)”, <europeanlawblog.eu/2017/12/06/mere-accessibility-of-a-website-does-not-trigger-jurisdiction-for-injun ctions-when-personality-rights-are-infringed-ecj-c-19416-bolagsupplysningenilsjan/> (last visited 30 May 2019).
Once again, the limited scope of the decision in Boü does not provide the reader with a valuable hint on how to draw a coherent picture of the jurisdictional matter when the above-mentioned provisions are concerned.
Article 35 allows the harmed party to seek an interim relief despite the allocation of a full head of jurisdiction. Besides, preventive measures can also be requested ante causam. The formal distinction among the power of the Court having jurisdiction with respect to the substance of a claim and that of the Court exercising its power to order provisional measures62 is measured, first of all, in terms of extraterritorial enforceability and
recognition. It is to be noted that geo-blocking technologies allow for imposing a territorial limit on the restrain to conduct or to graduate its effects63. Consequently, the Boü restriction
risks to be evanescent in practice.
Finally, article 7(3) confers jurisdiction regarding the civil claim on defamation to the court hearing the respective criminal proceedings. Indeed, it is not uncommon that torts against personality rights in certain Member States fall under the provisions of criminal law. The Brussels I Recast Regulation also covers civil matters tried in a criminal court, as is the case with defamation torts, and recognizes the procedural economy of maintaining the unitary nature of the proceedings64. Under this case, however, no specification is made concerning
the extension of the damage which occurred in the place of the tort where the criminal proceedings were started.
The assessment on the adjudicative power of the court seized in made following the connecting factors of the national criminal law involved. Moreover, when the connecting factor is purely territorial, the effects of the decision on the merits are limited in practice within the territory of the State involved. Consequently, the territorial limitation of the criminal court’s orders collides with the alleged indivisibility of the injunctive relief.
Once again, the Boü restriction is not consistent with the existing provisions of the Regulation.
Therefore, the overall picture regarding jurisdictional rules gives the impression of being quite more complex than the conclusion of the Boü case.
62 Dickinson A., (2010) “Provisional Measures in the “Brussel I Review: Disturbing the Status quo?”, Journal
of Private International Law, p. 521.
63 Geist M., idem, p. 27.
Chapter 3.
Damages and injunctions: a jurisdictional challenge
3.1. Foreword
Notwithstanding the differences in the Member States’ substantive law, tort law generally allows the harmed person to recover the general damages in the amount thought to be sufficient to compensate for the detriment to his reputation. However, this general damage-remedy taken alone, especially nowadays with the fast dissemination of the libelous contents in cyberspace, is not effective in practice. Indeed, the damage suffered through defamation is open-ended in nature65. Consequently, injunctive reliefs ordering the
rectification or the removal of the contents are of paramount importance in the context of cyber torts against personality rights. They are sought as the outcome of the decision on the substance of the merit, or on a secondary basis complementing the award of damages. The CJEU in the Boü case acknowledges the strict correlation between damages and injunctions when the plaintiff is seeking to restore his reputation from a defamatory tort. Moreover, the Court clearly points out the inconsistency between the grounds of a universal injunction and the mosaic approach, based, in its view, on the inherent indivisibility of the act of removal and rectification.
Some injunctions, such as an order of rectification, to some extent presuppose a certain threshold of discretion. The intensity of their effects can be tailored by the judge according to what is needed to protect the victim under the particular circumstances of the case in question66.
Moreover, their features are influenced by the substantive law involved67. They are
considered more intrusive on the right to freedom of expression than subsequent damages and therefore require, at least theoretically, a careful assessment of proportionality between the action requested and its effects. The Court’s reasoning considers only universal injunctions, without even addressing the potentials offered by geo-blocking technologies. On one side, the referring court limited its question to rectification and removal, which both have universal effect.
65 Svantesson, D. J.B. (2012). Private international law and the Internet, p. 335. 66Honorati C., idem, p. 546.
Yet, those orders are likely to lead to allowing for exorbitant effects of injunctions to take place. The same result applies when Internet intermediaries are the recipients of the injunctive order68: they can potentially achieve global removal with a universal injunction
and the practical effect could be the killing of a “mosquito with a nuclear bomb”69.
On the other side, we do not know if the Court, if asked, would have discarded a non-universal injunction as well, maybe because it is considered not precise enough to impose a territorial limit on the restrain to conduct. In that respect, a non-universal injunction would be able to mirror the portion of the harm suffered within a territory, as provided by the mosaic approach.
In addition, the harmed person also has the option to request an injunction to prevent potential or further damages. Firstly, when a wrong has not been committed yet but is anticipated or threatened to be committed within a territory. Under the above option, the proceedings on the merit have not been started yet.
Secondly, when the litigation is already in place but the length of the proceedings risks to undermine the legal remedies the claimant is looking for. Therefore, injunctions can also be the object of an interim relief70.
In light of the above, firstly I will analyze what remains of the mosaic approach. Two main points will be addressed: the first will consider the relationship of the Boü restriction with the persistence of the mosaic approach for the awarding of damages; the second will involve what was not specified by the court, namely situations where the center of interest cannot be identified and non-universal injunctions ordered through geo-blocking technologies. Both scenarios will be compared, in practice, with the survival of the mosaic approach. The findings will be evaluated in light of the objective of the Brussel I Recast Regulation. A separate paragraph will deal with the issuance of injunctions as preventive measures and their impact on the jurisdictional issue. Finally, their possible compatibility and coherence with the Boü restriction will be discussed as well.
68 Svantesson, D. J.B. (2014) “Between a rock and a hard place- An international law perspective of the
difficult position of a globally active Internet Intermediaries”, Computer Law & Security Review, p. 350.
69 Svantesson, D. J.B. (2017) idem, p. 174.
70 Svantesson, D. J.B. (2016) “Jurisdiction in 3D – “scope of (remedial) jurisdiction” as a third dimension of
3.2. What remains of the mosaic approach?
As already pointed out, the borderless nature of the Internet challenges the delimitation of the adjudicative jurisdiction. Article 7(2) tries to objectively localize the infringement of the constitutive element of civil liability, i.e. the harmful event. In that respect, the locus
commissi delicti is aimed to ensure predictability. However, as far as defamation is
concerned, the cavil as to the applicability of the locus delicti rule on the Internet consists of how to accommodate the place of the harmful event, as shaped by CJEU case law, with the potential universal localization of multiple damages caused to the defamed person71.
The recent developments in the CJEU’s reasoning show an attitude to focus on the localization of a full head of jurisdiction, preferably under the center of interest criterion, rather than following the Shevill approach. Indeed, when the request of universal injunction is involved, as in the Boü case, the partial head of jurisdiction of the place where the damage occurred is not sufficient anymore for the attribution of jurisdiction to the Court therein localized. In that respect, the judgment counters the existing practice in the European Member State, as well as the dominant opinion in literature72.
This outcome is furthered by the assumption that injunctions are indivisible remedies. The removal and rectification of certain content from cyberspace are considered a single and indivisible application by the Court 73.
Yet, the CJEU in the Boü case does not expressly refuse the mosaic approach per se, nor does anything to dispel the notion that it will maintain in the future74. Some authors read it
as an implicit confirmation of the eDate approach75.
Therefore, based on the possible understandings of the Boü restriction, what remains of the mosaic approach? The CJEU’ cases and the legal framework of the Brussel I Recast Regulation do not provide us with a clear and univocal answer. I will try to explore two interpretations: firstly, the persistence of the restriction and its relationship with the Shevill doctrine circumscribed to the award of damages; secondly, its blurring when no center of
71 Feraci O., (2019), “Digital Rights and Jurisdiction: The European approach to Online Defamation and IPRs
Infringements”, Use and Misuse of New Technologies, p. 286.
72 Lutzi T., idem, p. 329.
73Case C-194/16 Bolagsupplysningen OÜ, idem, para 48. 74 Jütte B. G., idem.
75 Among them, Biez A., (2018) “International jurisdiction for violations of personality rights on the Internet:
interest is identifiable and no divisible injunction can be ordered. Then, I will evaluate both, in the light of the objective of legal certainty.
If we assume the restriction of the mosaic approach as being absolute, no exception would be allowed for granting injunctions based on a partial head of jurisdiction of the court seized. The place where the damage occurred would keep its role only for compensatory damages, where at least a partial reputation of the victim is recognized. This complete restrictive approach of injunctions is based on the assumption that they integrate a single and indivisible act.
The multiplication of possible incompatible orders would be restricted and even prevented in the first place. This result also mirrors the suggestion of AG Bobek in the Boü case76 who
highlights that the objective of predictability would be undermined if a person could potentially be ordered to restrain from a certain conduct in 28 different Member States77.
Circumscribing the application of injunctions to a court having full jurisdiction could be a safe solution inasmuch as they are considered an indivisible remedy78. Thus, application of
the mosaic approach seems impossible in order to claim for rectification and removal. This argumentation is consistent but still cannot avoid the abstract involvement of more than one
forum. Indeed, it is possible to have at least, alternatively, three courts involved: the court of
the domicile of the defendant, the court of the place of establishment of the publisher and the court where the center of interest can be identifiable 79.
Ultimately, the restriction on jurisdictional rules, regarding injunctive orders, would indirectly influence the remedies of the substantive law involved, which are inherently national law.
Turning on the survival of the Shevill doctrine under the restrictive approach as described above, nothing can be inferred from the CJEU’s reasoning in favor or against it for awarding damages80. The court does not seem willing to deviate from its precedents. However, it can
be argued that the maintenance of the mere accessibility criterion, which is inherently a
76 AG Bobek Opinion, idem, para 75-85.
77 Reindenberg, J.R. (2001) “The Yahoo Case and the International Democratization of the Internet”, Fordham
Law & Economics Research Paper N. 11., p.7.
78 Svantesson D. J.B. (2018) “European Union claims of Jurisdiction over the Internet- an Analysis of three
Recent Developments”, Jipitect 113, para 56.
79 Svantesson D. J.B. (2016), idem, p. 60, who specifies that “the scope of jurisdiction relates to the
appropriate geographical scope of orders rendered by a court that has personal jurisdiction and subject matter jurisdiction.”
universal location criterion, risks in itself to cause a dangerous multiplication of the competent courts and to provide the plaintiff with a symbolic victory over the defendant81,
despite the deterrent effect. Furthermore, the accessibility of certain content assured by omnipresent entities such as Facebook or Google does not necessarily lead automatically to the actual comprehension of the content deemed to be defamatory in the mind of each reader82.
The coexistence of the Boü restriction concerning ordering injunctions and the mosaic approach limited to compensatory reliefs does not offer a coherent picture. The latter would be better achieved by aligning the extension of the adjudicative power of the Court seized for both, damages and injunctions. As for the Boü approach, the only solution would be to completely set aside the Shevill doctrine and concentrate all the claims before the full heads of jurisdiction.
Ultimately, this would better serve the purpose of legal certainty83. Avoiding the
maintenance of two separate approaches for damages and injunctions would bring more stability and coherence within the jurisdictional provisions of the Regulation84.
Assuming now that the center of interest cannot be identified, the general forum of the domicile of the defendant would still be available for the plaintiff. This option, though in line with the general provision of the Regulation, would completely depart from anchoring the competence of the court where lies the closest connection with the dispute. Traditionally, when distant torts are involved, the closest connection is likely to coincide with the place where the harm was suffered. Under those conditions, the maintenance of the
Boü restriction for granting injunction is to the diriment of the safeguard of the closest
connection with the substance of the claim. The plaintiff would not be able to benefit from the advantages offered by the place where the damage was suffered: the taking of evidence and the closest link with the injury suffered. Indeed, the country where the damage occurred is more often the place where the claimant’s reputation is rooted.
In addition, the lack of a full head of jurisdiction could also be said not to prevent the Court of the place where the damage occurred to grant an injunction mirroring the extension of the
81 Nagy, C. (2012). “The Word is a Dangerous Weapon: Jurisdiction, Applicable Law And Personality Rights
in EU Law – Missed and New Opportunities”, Journal of Private International Law, p. 268.
82 Svantesson D. J. B., (2016) idem, p. 321.
83 Oster J., (2012), idem, p. 117; Jütte B. G., idem; Bergè J. S., (2017) idem; Nagy, C. (2012), idem, p. 276. 84 Šramek M., (2015) “Brussel I: recent developments in the interpretation of special jurisdiction provisions
damages therein suffered. In fact, no current legal basis under the Brussel I Recast Regulation limits this option85. A further argument reinforces the assumption that the
mosaic approach can play a role also when injunctions are sought: a clever use of geo-blocking measures.
The CJEU in the Boü case takes for granted that only indivisible remedies are available. However, the Court makes no distinction among the rectification and removal of given content. The former requires a less drastic order compared to the latter. Both are strongly dependent on the blocking technologies involved and on their degree of accuracy. Unfortunately, the CJEU completely disregards this aspect and its potentiality86.
Blocking measures like geo-blocking, (without further inquiries on their practical effectiveness) are common means to restrict the accessibility of online content depending on the location of the Internet user. This tailored approach would assure a closer connection between the localization where the harmful material enters the mind of a third person (conditio sine qua non for the defamation to take place) and the location where the injury is suffered87. In addition, for the vast majority of people, reputation is geographically limited
and in order for the tort to be committed there must be a sufficient nexus between the act and the effect which generally coincides with the place where the damage occurred. Surely, the scale of intrusiveness of the injunctions sought needs to be self-restrained by the courts at stake, with the adoption of a self-limiting approach88. Thus, for instance, that court might,
when appropriate, order the access to the libelous content to be disabled with the help of geo-blocking within the given territory, without ordering a universal deletion89. The latter
would better serve the purpose of the victim but would be difficult to enforce in practice when other Courts with partial adjudicatory power act in the same way90.
This could mitigate the drawbacks of having several partial heads of jurisdiction involved and still preserve the adherence to the objective of the Brussel I Recast Regulation. In
85 AG Bobek Opinion, idem, para 126.
86 Bergè J.S., (2017) “Le juge national competent en cas d’atteinte aux droits de la personnalité sur Internet
selon la CJEU: les voies de passage de l’ancien monde au nouveau monde”, < www.gdr-elsj.eu/2017/11/24/cooperation-judiciaire-civile/le-juge-national-competent-en-cas-atterintes-aux-droits-de-la -personnalite-sur-internet-selon-lacjeu-les-voies-de-passage-de-lancien-monde-au-nouveau-monde/> (last visited 15 May 2019).
87 Svantesson D. J.B. (2016), idem, p. 345.
88 Bogdan M., (2018), “Regulation Brussels I a and Violations of Personality Rights on the Internet”, Nordic
Journal of International Law, vol. 87, p. 218.
89 AG Szpunar Opinion, Case C-18/18 Eva Glawisching-Piesczek v. Facebook Ireland Limited (not published
yet).
90 Reymond M., (2013), “Jurisdiction in case of personality torts committed over the Internet: a proposal for a
