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Issues

Joint publishers and journalists' letter on Rome II January 2007

Second reading on Rome II - Publishers and journalists call on the exclusion of violation of privacy and rights related to the personality, including defamation, from Rome II without a specific review clause

11 January 2007

Dear Members of the European Parliament,

ENPA, EPC, EFJ, FAEP, FEP and Presse-Liberté would like to draw your attention on the vote that will take place in plenary session next week on Rome II - the draft regulation on applicable law to non-contractual obligations.

Our concerns focus mainly on the issue of violation of privacy and rights related to the personality, including defamation.

In this area, European publishers and journalists' organisations are calling for:

• A complete exclusion of violation of privacy and rights related to the personality, including defamation, from the scope of Rome II.
• No specific reference to violation of privacy and rights related to the personality, including defamation, in the review clause.

Explanations

We regret that the amendment adopted by the European Parliament in first reading did not find sufficient support in the Council and the European Commission as it would have provided legal certainty for journalists and publishers activities whilst respecting press freedom/freedom of expression.

In this context, we therefore believe that in the absence of a rule which protects editorial independence, an exclusion of violation of privacy and rights related to the personality, including defamation is the most realistic and politically viable option, compared to other proposals which could seriously undermine press freedom as it is protected in the different Member States. The following reasons in particular justify our point of view:

• It has been recognised by academics and lawyers that an absence of a rule in the Rome II Regulation does not seem to present difficulties for practitioners. Indeed in practice, media and journalists are quite familiar with their national law which provides legal certainty for their daily work.
• The number of cross-border cases in this area is insignificant. Consequently, the objectives of Article 65 of the EC Treaty concerning judicial cooperation in civil matters having cross-border implications and for the proper functioning of the Internal Market cannot be fulfilled. For these reasons, publishers and journalists have questioned the legal basis of Rome II and the proposed measure on violation of privacy and rights related to the personality.
• Finally, the European Commission has asked the University of Heidelberg to produce a study in view of the forthcoming revision of the Brussels I regulation (which deals with choice of jurisdiction in cross border disputes), which is due in 2007. In this context it therefore seems useful to consider first the revision of the Brussels I regulation before determining an applicable law which may impact the choice of jurisdiction.
• Concerning the review clause, a complete exclusion also requires the total avoidance of any specific reference of violation of privacy and rights of the personality, including defamation, in the review clause. The need for consistency with exclusion, the absence of any sound legal basis (only very few cross-border cases) and the need to consider first the review of Brussels I regulation are appropriate reasons to avoid any specific reference to this issue in the review clause of Rome II regulation.

The undersigned European publishers' organisations and journalists' federation:

Valtteri Niiranen - European Newspaper Publishers' Association (ENPA)
Director

Angela Mills Wade - European Publishers' Council (EPC)
Executive Director

Aidan White - European Federation of Journalists (EFJ)
General Secretary

David Mahon - European Federation of Magazine Publishers (FAEP)
Director

Anne Bergman-Tahon - Federation of European Publishers (FEP)
Director

Alain Chastagnol - Presse-Liberté
Secrétaire Général