jurisdiction and intermediary liability
TRANSCRIPT
© 2012 Edwards Wildman Palmer LLP & Edwards Wildman Palmer UK LLP
Jurisdiction and intermediary liabilityGareth DicksonEdwards Wildman Palmer UK LLP
December 10, 2014
Jurisdiction: A Question of Court
♦ Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (“Brussels Regulation”)
♦ Tenet of rules – protection against exorbitant jurisdiction
♦ Rules premised on predictability of jurisdiction, sound administration of justice and efficacy of proceedings
♦ Recast Regulation comes into force in January 2015 but case-law on Brussels Regulation will remain relevant
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Article 2(1) – The General Rule
♦ Persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State
♦ Domicile?
♦ Apply national laws to determine – Article 59 Brussels Reg♦ UK - para 9 of the Civil Jurisdiction and Judgments Order 2001 ♦ ‘Substantial connection’ for individual defendants♦ Article 60 Brussels Regulation – governs domicile of companies
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Article 5(3) - Tort
A person domiciled in a MS may, in another MS, be sued in matters relating to tort, delict or quasi-delict in the courts for the place where the harmful event occurred or may occur
Bier v Mines de Potasse d'Alsace
♦ Court held that 'place where the harmful event occurred or may occur’ could mean the place where the damage occurred, or the place of the event giving rise to the damage
♦ D may be sued, at election of the C, either in the courts of the place where the damage occurred, or in the courts of the place of the event which gives rise to and is at the origin of that damage
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CJEU Cases on Jurisdiction: Possibilities
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Where?
Where site is targeted
Where Claimant is
based
Where the right is
registered
Where the servers are
located
Where content is visible
Where providers
are established
New jurisdiction cases: Recap
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eDateOct. 2011
All damage:1.Where content provider is established; or2.Where Claimant has “centre of interests”
National damage:Where content is accessible
Online, personality rights and privacy
New jurisdiction cases: Recap
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WintersteigerApril 2012
1. Where right protected; or2. Where advertiser is established; but3. NOT where the server is locatedOnline,
national, registered trade marks
New jurisdiction cases: Recap
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Titus DonnerJune 2012
Where any of the “series of acts” giving rise to a “distribution [making available] to the public” occurOffline,
copyright(“making available”)
New jurisdiction cases:Football Dataco v. Sportradar (CJEU)
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SportradarOct. 2012
1. Only the courts of Member State A, where the database server was located?
2. Only the courts of Member State B, where the recipient of the data was located?
3. The courts of both Member State A and Member State B?
Online, database(“making available”)
New jurisdiction cases:Football Dataco v. Sportradar (CJEU)
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SportradarOct. 2012
At least where the recipient of the infringing material is located
IFthe Defendant intended to target members of the public in that Member State
Online, database(“making available”)
New jurisdiction cases: Pinckney
Case C-170/12 Pinckney
♦ "whether Article 5(3) of the Brussels I Regulation must be interpreted as meaning that where there is an alleged infringement of a copyright which is protected by the Member State of the court seised, that court has jurisdiction to hear an action to establish liability brought by the author of a work against a company established in another Member State, which has in the latter State reproduced that work on a material support which is subsequently marketed by companies established in a third Member State through an internet site which is also accessible in the Member State of the court seised.”
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New jurisdiction cases: Pinckney
"the answer to the questions referred is that Article 5(3) of the Regulation must be interpreted as meaning that, in the event of alleged infringement of copyrights protected by the Member State of the court seised, the latter has jurisdiction to hear an action to establish liability brought by the author of a work against a company established in another Member State and which has, in the latter State, reproduced that work on a material support which is subsequently sold by companies established in a third Member State through an internet site also accessible within the jurisdiction of the court seised. That court has jurisdiction only to determine the damage caused in the Member State within which it is situated.”
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New jurisdiction cases: Hi Hotel
Case C‑387/12, Hi Hotel HCF SARL v Uwe Spoering
♦ “Is Article 5(3) of Regulation … 44/2001 to be interpreted as meaning that the harmful event occurred in one Member State (Member State A) if the tort or delict which forms the subject-matter of the proceedings or from which claims are derived was committed in another Member State (Member State B) and consists in participation in the tort or delict (principal act) committed in the first Member State (Member State A)?”
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New jurisdiction cases: Hi Hotel
“Article 5(3) ... must be interpreted as meaning that, where there are several supposed perpetrators of damage allegedly caused to rights of copyright protected in the Member State of the court seised, that provision does not allow jurisdiction to be established, on the basis of the causal event of the damage, of a court within whose jurisdiction the supposed perpetrator who is being sued did not act, but does allow the jurisdiction of that court to be established on the basis of the place where the alleged damage occurs, provided that the damage may occur within the jurisdiction of the court seised. If that is the case, the court has jurisdiction only to rule on the damage caused in the territory of the Member State to which it belongs.”
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New jurisdiction cases: Pez Hejduk
Case C-441/13 Pez Hejduk
♦ “Is Article 5(3) of Council Regulation (EC) No 44/2001 … to be interpreted as meaning that, in a dispute concerning an infringement of rights related to copyright which is alleged to have been committed in that a photograph was kept accessible on a website, the website being operated under the top-level domain of a Member State other than that in which the proprietor of the right is domiciled, there is jurisdiction only– in the Member State in which the alleged infringer is established; and– in the Member State(s) to which the website, according to its content, is directed?”
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New jurisdiction cases: Pez Hejduk
AG Opinion
"Article 5(3) of Council Regulation (EC) No 44/2001 … must be interpreted in the sense that, in a controversy concerning the infringement over the internet of rights relating to copyright from which a "delocalised" damage has arisen which is not possible to determine according to a territoriality criterion on the basis of reliable elements of proof, the competence lies with the judges of the place where the causal event took place."
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Jurisdiction for joint-tortfeasorship?
Standard under English common law is high: essence is that joint-tortfeasor is so involved in the act that he makes it his own
“[M]ere knowledge on the part of the supplier of equipment that it would probably be used to infringe someone's copyright does not make the supply unlawful; nor does an intention to supply the market for such user". Amstrad Consumer Electronics plc v BPI [1986] FSR 159
“[J]oint infringers are two or more persons who act in concert with one another pursuant to a common design in the infringement … 'Facilitating the doing of an act is obviously different from procuring the doing of an act.' ... Generally speaking, inducement, incitement or persuasion to infringe must be by a defendant to an individual infringer and must identifiably procure a particular infringement in order to make D liable." CBS Songs Ltd v Amstrad Consumer Electronics plc [1988] AC 1013
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Jurisdiction for joint-tortfeasorship?
“This idea [of ‘common design’] does not, as it seems to me, call for any finding that the secondary party has explicitly mapped out a plan with the primary offender. Their tacit agreement will be sufficient. Nor, as it seems to me, is there any need for a common design to infringe. It is enough if the parties combine to secure the doing of acts which in the event prove to be infringements.” Unilever plc v Gillette (UK) Ltd [1989] RPC 583”
"Mere assistance, even knowing assistance, does not suffice to make the 'secondary' party liable as a joint tortfeasor with the primary party. What he does must go further. He must have conspired with the primary party or procured or induced his commission of the tort (my first category); or he must have joined in the common design pursuant to which the tort was committed (my third category).": Credit Lyonnais Bank Nederland NV v Export Credit Guarantee Department [1998] 1 Lloyds Rep 19
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Jurisdiction for joint-tortfeasorship?
"The underlying concept for joint tortfeasance must be that the joint tortfeasor has been so involved in the commission of the tort as to make himself liable for the tort. Unless he has made the infringing act his own, he has not himself committed the tort. … [M]erely acting as a supplier of goods to a purchaser which was free to do what it wanted with the goods … [does] not thereby make MFI's infringing acts its own.": SABAF SpA v Meneghetti SpA [2002] EWCA Civ 976.
L'Oréal SA & Ors v. EBay International AG & Ors [2009] EWHC 1094 (Ch) “eBay Europe do facilitate the infringement of third parties' trade marks … they do know that that such infringements have occurred and are likely to continue to occur; and they profit from such infringements … these factors are not enough to make eBay Europe liable as joint tortfeasors.”
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New jurisdiction cases:Football Dataco v. Sportradar (CoA, Feb. 2013)
Is a website operator jointly liable for infringements which occur by virtue of the mere accessing of their site?
“[96] If the answer is yes, then the owner of any website anywhere in the world will be a joint tortfeasor with a UK user of that website if the inevitable consequence of access to that site by the user is infringement by that user.
“[97] I would hold the answer to be yes. The provider of such a website is causing each and every UK user who accesses his site to infringe.”
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New jurisdiction cases: Conclusions
♦ Jurisdiction not very predictable at present
♦ Predictability, efficacy of proceedings and the sound administration of justice remain the basis of the rules on special jurisdiction
♦ Court of Appeal broadside on social network’s joint-tortfeasorship might not meet the policy requirements of the Brussels Regulation (even if it meets domestic rules on joint-tortfeasorship)
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Impact on gTLD Registries?
♦ Expansive interpretation of “communication to the public” in Svensson puts new gTLD registries at risk of infringement since they maintain and facilitate indices of hyperlinks
♦ Universal Music v. Key Systems, 15 January 2014, the Regional Court of Saarbrücken in Germany: registrar violated obligations of “due diligence and prevention” by not blocking domain names providing access to infringing material post-notice on basis of its “causal contribution” to the infringements.
♦ Infringement was “obvious”, “readily-ascertainable”, “not requiring intricate legal analysis” and “unambiguous”. Imposed obligation to inspect the domain name at issue at regular intervals in the future to check that the infringements were not continuing.
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New jurisdiction cases: gTLD Registries?
♦ No need to worry about joint tortfeasorship if registries are primarily liable
♦ Articles 12, 14 and 15 E-Commerce Directive safe harbour?
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