January 17, 2022
Gtflix Tv is based in the Czech Republic and produces and distributes adult content TV programmes. DR is a director, producer and distributor of pornographic films, domiciled in Hungary.
Gtflix issued proceedings in the French courts against DR for compensation in relation to allegedly disparaging remarks made by DR against Gtflix on various websites and forums. Gtflix sought an order that DR remove the allegedly disparaging content and not make any further such comments. As for financial compensation, it sought “one symbolic euro” for economic loss and one euro for non-material loss.
DR contested the jurisdiction of the French courts. DR was initially successful and Gtflix appealed. The French Court of Appeal has asked the CJEU whether Article 7(2) of the Recast Brussels Regulation (1215/2012/EU), which provides that in non-contractual matters, a defendant may be sued in “the place where the harmful event occurred or may occur”, means that the claim for compensation can be issued in each Member State where the online content is/was accessible or that it must be issued in the court that has jurisdiction to order rectification and removal of the derogatory comments.
The CJEU held that a party wishing to make a claim for infringement of rights as a result of the dissemination of disparaging comments about him/her on the internet, and seeks not only rectification of the information and removal of the content but also damages for the resulting harm, can issue the claim in the courts of the Member State where the harm has been incurred, even if such court does not have jurisdiction to rule on the rectification and removal of the content concerned, provided that the content is or was accessible in that Member State.
The CJEU noted that, according to case law, the rule of special jurisdiction in Article 7(2) in favour of the courts “for the place where the harmful event occurred or may occur” was intended to cover both the place where the harm occurred and the place of the event giving rise to the harm, since they are interrelated.
The CJEU also noted that a party whose rights have been infringed as a result of comments made online has the option of issuing proceedings for liability in respect of all the harm incurred either before the courts of the Member State in which the publisher of the content is established or before the courts of the Member State in which the centre of his or her interests is located. That party can also issue proceedings before the courts of each Member State in which the online content is or has been accessible, but those courts will only have jurisdiction in respect of the harm caused in that particular Member State.
Therefore, in accordance with Article 7(2), a party who has suffered harm as a result of content being placed online can, for the purposes of rectifying that information and removing such content, issue proceedings before the courts with jurisdiction to rule on a claim for damages for the harm suffered, i.e., either the court of the place of establishment of the publisher of that content or the court within whose jurisdiction the centre of interests of that person is situated, on the basis of the place where the harm occurred.
However, the CJEU said that an application for the rectification of information and the removal of content placed online can only be brought before the court that has jurisdiction to rule on damages for all the harm caused because it constitutes a single and indivisible application.
By contrast, an application for damages can be for either full or partial compensation, i.e., in one territory only. Accordingly, it is not justified to exclude the applicant’s right to claim partial compensation before any court within whose jurisdiction he or she considers harm has occurred. Further, such right cannot be excluded for the purposes of the sound administration of justice, since a court that has jurisdiction to rule only on the harm caused in its own Member State is perfectly capable of assessing the existence and the extent of the alleged harm.
Finally, granting jurisdiction to a court to make findings in relation to the harm caused in its own Member State only is subject to one condition only: that the harmful content must be accessible or have been accessible in that Member State. Article 7(2) does not impose any additional conditions. (Case C-251/20 Gtflix v DR EU:C:2021:1036 (21 December 2021) — to read the judgment in full, click here).