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Joint media position for MEPs on the proposed Rome II regulation - defamation

The media have different traditions in different EU Member States for historical, societal and cultural reasons. In this respect, legislation impacting on the press is not uniform in the EU and rightly falls under the principle of subsidiarity. However, it can be said that an overriding feature of media law in all EU Member States is that it is based on democratic values, enshrining editorial independence and the freedom of expression.

It is important to understand that the printed press in Europe is confronted by defamation issues on a daily basis, unlike television and the internet. The printed press operate under tight deadlines and, for SME publishers, often under tight financial situations. In order to continue delivering news and information to citizens, therefore, an environment of legal certainty is required in order to allow for editors and publishers to print news, articles and books.

Exclude defamation from the scope of Rome II

As you will be aware, European business has a number of different concerns with the Rome II proposal. Europe's media, however, have only one particular concern which relates to the provisions in the proposal on defamation (Articles 3 and 6).

Europe's media consider that the Commission has not provided any evidence justifying a change in the current state of play in the EU as regards defamation issues and that the Commission has failed to establish that it is necessary to harmonise the conflict rules relating to privacy and defamation in order to promote the functioning of the Internal Market. Furthermore, the Commission's proposal establishes two different regimes: one for print and another for electronic media. Existing jurisprudence of the European Court of Justice (notably the Shevill decision), as well as existing practices in the different Member States, more than adequately look after the legitimate concerns of potential victims, as well as allowing for the freedom of the press in terms of jurisdiction, allowing for one single court in the EU territory to rule and award damages for all the harm caused by the violation of personality rights: there is no need to fix something that is not broken whilst at the same time introducing limitations on the press.

Indeed, European media question the competence of the EU to introduce sweeping changes to the regulation of the media, which are regulated according to national specificities. Further, regulation impacting on the freedom of expression is excluded from the competencies of the European Union by Article 151 of the EU Treaty.

If the issue of defamation is to be included in the scope of Rome II, it will create an unknown and complex operating environment for European media. Put simply, it would only serve to increase legal uncertainty for the media, who would have to be aware of, and understand, various different defamation laws around the world in order to assess any potential risk of litigation before deciding to report on a story.

The central role of the media relates to society and culture (to inform, and entertain, the public) at the same time remaining an important, competitive economic sector. As such, the media work to tight deadlines in order to deliver news and information to European citizens. Obstacles to delivering important information to citizens on time can only serve to hinder the freedom of expression. The European media, in particular the printed press is, in the main, a national product: a citizen of Finland is not in the habit of reading a newspaper or magazine coming from France. If defamation is included in Rome II, a journalist and editor will have to decide, often at the last moment, and in many cases without proper legal advice, whether to print an article or not. While larger publishing houses might have the resources to seek legal advice prior to publication, smaller publishers will not. Further, seeking legal advice on the defamation laws of other countries will inevitably lead to printing delays, and will, of course, be very costly. In other words, both the societal and cultural role of the media and the competitiveness of the sector will be compromised.

Sometimes, of course, the media make mistakes. However, as already mentioned, existing practices and existing legal remedies provides for adequate protection in cases of cross-border defamation cases.

The undersigned organisations strongly believe that covering the issue of defamation in an instrument like the Rome II proposal will only create confusion for both the media and the public.

For these reasons the European media represented by the undersigned organisations consider that defamation is not an appropriate area to be regulated at the EU level. It should, thus, ideally be removed from the scope of the Regulation in order to preserve national traditions of freedom of expression.

Country of Origin

While we strongly believe that defamation should be outside the scope of the Rome II Regulation, we have concluded that, if Parliament and Member States decide that it should be, there are a number of possible solutions which would allow for adequate protection for potential victims as well as legal certainty for the media.

We consider that a country of origin approach would afford comprehensive protection for potential victims and would provide legal certainty for publishers. Indeed, if defamation is to be included in the scope of the Rome II Regulation, we would insist that it grants country of origin principles in order to avoid discriminating between print media and online and broadcast media (which operate under country of origin rules, as provided by the Electronic Commerce Directive, the Television Without Frontiers Directive, the Cable and Satellite Directive and the Data Protection Directive respectively).

It is simply unacceptable, both in terms of Community law and the European Convention on Rights and Fundamental Freedoms, to subject the same defamatory material published in the same place by the same publisher to two entirely separate legal regimes depending on whether it is published in hard copy or broadcast on television or on the Internet. Such an arbitrary distinction not only leads to legal uncertainty, but it would also have a profound effect on the exercise by the press of the fundamental right to free expression.

Diana Wallis Draft Report

While the Rapporteur makes a goof effort to take into account certain criteria related to the media, the proposed Article 6 does not provide sufficient legal security. In fact, the draft Report sets out only non-binding criteria which are subsidiary to the suggested applicable law of Article 6: law of the country in which the most significant element or elements of the loss or damage occur or are likely to occur.

It must be remembered that the printed press in Europe is confronted by defamation issues every single day, unlike television and the internet. The printed press operate under tight deadlines and, for SME publishers, sometimes under tight financial situations. To face the legal uncertainty which the suggested applicable law would result in, would indeed provide for forum-shopping for the local damage. For publishers, the local damage can be devastating as legel fees in certain countries, especially in the UK, are huge compared to other countries such as France and Germany. Moreover, the suggested criteria relating to copies, language and audience are completely optional and would only be helpful if they were made mandatory.

Instead of providing for a clear exception for the media in Article 6, which is one of the raison d'être of Article 6, the current wording submits the media instead to an uncertain rule, which will continue to provide for forum-shopping rather than a secure legal regime which is necessary for matters related to freedom of expression in the media balanced by an adequate protection for potential victims.

In this connection, we will be happy to work further with MEPs in order to find suitable wording to propose as an amendment to Mrs. Wallis' Report.

This must we believe be based on the exclusion of Article 6 on Defamation and Rights to Privacy from the scope or on the country of origin principle.

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

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

David Mahon, Secretary General, European Federation of Magazine Publishers (FAEP)

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

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