Violations of personality rights through the Internet : jurisdictional issues under European law / Edina Márton.
2016
KJE1620 .M37 2016 (Map It)
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Details
Author
Title
Violations of personality rights through the Internet : jurisdictional issues under European law / Edina Márton.
Published
Baden-Baden : Nomos ; [Oxford, England] : Hart Publishing, 2016.
Copyright
©2016
Call Number
KJE1620 .M37 2016
Edition
1. Auflage.
ISBN
9783848727261 (Nomos)
3848727269 (Nomos)
9781509908028 (Hart)
1509908021 (Hart)
9783845270708 (ePDF)
3845270705
9783845270708
3848727269 (Nomos)
9781509908028 (Hart)
1509908021 (Hart)
9783845270708 (ePDF)
3845270705
9783845270708
Description
382 pages ; 23 cm.
System Control No.
(OCoLC)947092916
Summary
"This book considers jurisdictional issues on violations of personality rights through the Internet under the so-called 'Brussels-Lugano Regime' and centers on the special rule of jurisdiction in matters relating to tort, delict, or quasi-delict. It notes the governing objectives and underlying principles of this special rule; analyzes its interpretation through the judgments of the ECJ, especially Bier, Shevill, and eDate and Martinez; and explores views expressed in legal theory and national judicial practice regarding its application for localizing online violations of personality rights. The book aims to examine how the eDate and Martinez approaches advance administrability, predictability, and litigational justice and to assess whether they are suitable jurisdictional bases in Europe, where common legal norms, interests, and values increasingly integrate and connect persons. The author concludes that they are not and recommends their possible reform."-- Provided by publisher.
Note
"This book is based on my doctoral thesis, which I successfully defended at Saarland University, Germany, in July 2015"--Page 5.
Bibliography, etc. Note
Includes bibliographical references (pages 319-348).
Record Appears in
Table of Contents
List of Abbreviations
19
Introduction: International jurisdiction of courts in the digital age - A bird's eye view
27
ch. I
Background: four national perspectives on violations of personality rights
37
A.
Common understanding of basic concepts
38
B.
Four national perspectives
39
I.
Hungarian law
39
II.
German law
42
III.
French law
45
IV.
English law
49
V.
Differences in the national legal landscape
53
ch. II
Background: characteristics of the Internet
55
A.
Geographical independence
56
B.
Geolocation tools
59
I.
Shortcomings of geolocation tools
60
1.
Weaknesses in technology
60
2.
Evasion of geolocation tools
61
3.
Additional considerations
63
C.
Actors in the digital world
64
D.
Internet vis-a-vis the traditional media, especially the press
68
ch. III
Mapping the legal landscape: the Brussels-Lugano Regime
71
A.
Background of the Brussels-Lugano Regime
71
I.
Brussels Regime
72
II.
Lugano Regime
76
III.
Brussels-Lugano Regime in Hungary
79
IV.
Other developments
81
1.
Draft Regional Convention between the Western Balkan countries
82
2.
Judgments Project
83
B.
Governing objectives and underlying principles: focus on the persons
85
I.
principle of legal certainty
86
1.
principle of equality and uniformity of rights and obligations
87
2.
Legal certainty as to the scope of the Brussels-Lugano Regime
90
3.
Avoiding multiplication of courts and fragmentation of proceedings
92
4.
extent of national courts' duties to examine jurisdiction
93
II.
principle that disputes should be decided in an appropriate forum
96
1.
principles of sound administration of justice and proximity
97
2.
principle that parallel proceedings should be avoided
98
3.
principle of party autonomy
101
4.
principle of protection of the weaker party
101
III.
Jurisdictional principles as bases for the liberal recognition and enforcement of judgments
102
C.
General jurisdictional provisions
106
I.
Article 4: Actor sequitur forum rei
106
1.
Determination of domicile
107
2.
supplement to domicile: the last known domicile
111
II.
Article 5: Alternative grounds of jurisdiction
112
III.
Article 6: (Inter)nationalism v eurocentrism
113
D.
arsenal of jurisdictional bases for violations of personality rights
116
I.
Article 4(1): Defendant's domicile
116
II.
Article 7(2): Jurisdiction in tort
117
1.
Violation of trade marks
117
2.
Violation of copyright
118
3.
Co-perpetrators
120
III.
Article 7(3): Criminal offence
122
IV.
Article 7(5): Operation of a secondary establishment
123
V.
Article 8(1): More than one defendant
124
VI.
Article 25: Choice of court agreements
127
VII.
Article 26: Uncontested voluntary submission
129
ch. IV
Jurisdiction in tort: a general note on Art 7(2) with particular regard to violations of personality rights
130
A.
Matters relating to tort, delict, or quasi-delict
130
B.
place where the harmful event occurred or may occur
132
I.
place where the harmful event occurred
133
1.
place of the event, which gives rise to and is at the origin of the damage, occurred
136
a.
Peter Mankowski: lex cause
137
b.
Sebastian Kubis: imputation and procedural valuations
137
c.
Isabel Roth: procedural valuations
138
d.
Peter Kaye: the original act
140
e.
present author's view: the original act with particular regard to procedural principles
141
2.
place where the damage occurred
144
II.
place where the harmful event may occur
148
III.
Subsequent disappearance of the harmful event: perpetuatio fori within Art 7(2)
149
C.
Participation in the role of the plaintiff and the defendant
151
ch. V
Jurisdiction in offline violations of personality rights: the Shevill judgment
153
A.
Shevill in a nutshell
153
I.
Factual and procedural background
154
II.
questions referred
154
III.
judgment of the ECJ
155
B.
place where the harmful event occurred
155
I.
place of the event, which gives rise to and is at the origin of the damage, occurred
156
1.
publisher's establishment in the chain of successive acts
156
2.
publisher's establishment as the place of domicile
159
II.
place where the damage occurred
162
1.
concept of distribution
163
a.
Distribution to the retailers
164
b.
Distribution to the readers
164
2.
concept of injury to reputation
166
3.
Connection between the concepts of distribution and injury to reputation
171
C.
extent of jurisdiction
171
I.
Practicability
173
1.
Assessment of the defamation committed
174
2.
Determination of the extent of non-pecuniary harm
177
II.
Compatibility with the governing objectives and underlying principles
178
1.
wording of Art 7(2): is the limited extent of jurisdiction covered?
178
2.
wording of Shevill: is local jurisdiction covered?
179
3.
Depriving the twin criteria of their inherent natures
180
a.
Equal treatment
180
b.
Optional character
181
c.
Causality and connectivity
182
4.
Libel tourism
184
a.
In general: libel tourism in the Brussels-Lugano States
184
b.
In particular: libel tourism in the wake of Shevill
185
5.
Procedural economy
187
6.
Interpretation in the light of the fundamental rights
188
7.
Rules of lis pendens and related actions
190
a.
Do parallel mosaic procedures involve the same dispute?
191
b.
Are the mosaic actions related?
194
c.
adjunct problem: courts with different extents of jurisdiction
194
8.
Rules on the recognition and enforcement of judgments
195
Conclusion and summary
198
D.
Shevill and its impacts
198
ch. VI
Jurisdiction in online violations of personality rights: reviewing 16 years' proposals
201
A.
Maintaining the twin criteria within Art 7(2)
201
I.
place of the event, which gives rise to and is at the origin of the damage, occurred or may occur
202
1.
place of the publisher's establishment a la Shevill
202
2.
place where the web server, to which the content was uploaded, is located
203
3.
place where the content was uploaded
203
4.
Isabel Roth: three places under a rebuttable rule of presumption
205
II.
place where the damage occurred or may occur
207
1.
Accessibility and actual access of the online content
207
a.
Accessibility of the online content
207
b.
Actual access of the online content
209
c.
adjunct question: the use of geolocation tools
210
2.
targeting test
211
a.
targeting test a la Pammer and Hotel Alpenhof
213
b.
Sui generis targeting tests
214
aa.
AG Cruz Villalon: the centre of gravity of the dispute
215
bb.
Isabel Roth: a qualified domestic connection
217
cc.
Michel Reymond: an objective targeting requirement
218
c.
adjunct question: the target of the test
220
3.
victim's forum
221
4.
draft Hague Judgments Convention: the place of the injury with special emphasis on the injured person's habitual residence
222
B.
Favouring a unitary approach within Art 7(2)
223
I.
Sebastian Kubis: the place of uploading and the victim's domicile at the place of distribution
224
II.
Marc Leonhard: accessibility and domicile or certain degree of reputation together with proximity
225
III.
Benedikt Buchner: the aggrieved person's centre of life
226
IV.
Andrew Dickinson: the place of the causal event
228
C.
Proposals regardless of Art 7(2)
229
I.
European Publishers Council: removing the media from Art 5(3) of Brussels I
229
II.
Christopher Kuner: a flexible rule with the possibility of declining jurisdiction
231
ch. VII
Jurisdiction in online (potential) violations of personality rights: the eDate and Martinez judgment
232
A.
eDate and Martinez in a nutshell
232
I.
Factual and procedural background
233
1.
eDate Advertising
233
2.
Martinez and Martinez
233
3.
Factual differences
234
II.
questions referred
235
III.
judgment of the ECJ
235
B.
place of the harmful event a la Shevill between confirmation and revision
237
I.
place of the causal event at the publisher's establishment is confirmed
237
Conclusion and summary
246
II.
place of the damage is twice revised
246
1.
Revision no 1: the victim's centre of interests
247
a.
Reason no 1: worldwide accessibility
248
aa.
targeting test
250
bb.
actual access approach
253
cc.
Two adjunct questions: blocking measures and redistribution
254
b.
Reason no 2: serious nature of the harm
258
c.
Definition: the victim's centre of interests
261
aa.
Forum actoris and actor sequitur forum rei: opposition or justified parallelism?
263
d.
Justification no 1: sound administration of justice
269
e.
Justification no 2: predictability
272
2.
Revision no 2: the concept of accessibility
277
Conclusion and summary
278
C.
extent of jurisdiction
279
I.
Observations complementary to the notes on the mosaic approach
280
1.
Practicability
280
a.
Assessment of online violations of personality rights committed
280
b.
Measures for (potential) violations of personality rights
281
2.
Compatibility with the governing objectives and underlying principles
282
a.
Further depriving the twin criteria of their inherent natures
282
b.
Libel tourism eased but to a certain extent minimised
283
c.
Even more certain application of rules of lis pendens and grounds for refusal
287
Conclusion and summary
288
II.
Unlimited extent of jurisdiction: a choice between the Brussels-Lugano States-wide and the worldwide harm
289
Conclusion and summary
295
D.
Extending the application of the eDate and Martinez-approaches
295
I.
Is there a need for technology neutrality?
295
II.
Reversal of the roles: are the eDate and Martinez-approaches suitable for individual online actors and legal person victims?
298
1.
Individuals as online actors
299
2.
Legal persons as victims
302
Conclusion and summary
305
ch. VIII
proposal to reform the eDate and Martinez judgment
306
A.
Virtues satisfying the governing objectives and underlying principles
308
I.
Consistency with legal certainty
308
1.
Guaranteeing equality and uniformity of the rights and obligations
308
2.
Avoiding multiplication of courts and fragmentation of proceedings
309
3.
Identifying jurisdiction in a rapid and certain way
309
II.
Determining the most appropriate court
309
1.
Consistency with the principles of sound administration of justice and proximity
310
2.
Supporting that the entire dispute is decided before a single forum
310
III.
Fostering mutual recognition of judgments
310
IV.
Strengthening the legal protection of persons established in the Brussels-Lugano States
311
B.
Virtues serving practical purposes 311 Conclusions: International jurisdiction of European courts in the digital age - An insight view
313
Bibliography
319
Table of Cases
349
Table of Legislation
363
Table of International Treaties, Conventions and Other Documents
369
Table of Documents of the Hague Conference on Private International Law
371
Table of Official Studies and Reports
373
Appendices
377