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European media and journalists' position on Article 6 and other measures concerning the press - meeting of the Council Committee on Civil Law Matters (Rome II)

26 September 2005

To the Members of the Council Committee on Civil Law Matters

Dear Madam, Dear Sir,
In advance of the forthcoming meeting of the Council Committee on Civil Law Matters on 29 September, the undersigned European media and journalists' organisations would like to inform the Member States' representatives in the Committee on Civil Law Matters of their position on amendments agreed by the European Parliament in July to the Commission's proposals on Rome II - the draft Regulation on applicable law to non-contractual obligations.

1) The European Parliament amendments on Article 6 and Recital 12 represent a reasonable compromise

We call on the Member States to support the amendments adopted in the European Parliament because:

a) the application of the law of the "country where the publication is principally directed" provides more legal certainty and a balanced approach to deciding which law would apply in cross-border claims;

b) this is not the same thing as applying the law of the country of origin in every case as a different law than the law of the country where the publisher/broadcaster is established could still apply in cases of cross-border defamation.

• More legal certainty and balance compared to the Commission's proposal

The Commission's proposal on the applicable law for violations of privacy and rights relating to the personality is based on 2 principles:

a) the application of the general principle in Article 3: the law of the country where the damages occur; or,

b) according to Article 6, the law of the forum if the law designed under Article 3 would be contrary to the fundamental principles of the forum as regards freedom of expression.

The above organisations are concerned that Member States will support the law of the forum. The law of the forum would encourage forum and law shopping as under the Brussels I Regulation and the decision of the European Court of Justice in the Shevill case, the plaintiff has a choice to bring actions for damage in various jurisdictions:

a) either before the courts of the Contracting State of the place where the publisher of the defamatory publication is established (which have jurisdiction to award damages for all the harm caused by the defamation)

b) or before the courts of each Contracting State in which the publication was distributed and where the victim claims to have suffered injury to his reputation (which have jurisdiction to rule solely in respect of the harm caused in the State of the court seised).

The law of the forum and the Shevill decision lead to the application of a variety of different national laws as there is no possibility to determine precisely where the damages could take place and which law would apply. A multiplicity of laws from different Member States could be applicable to one case and will therefore allow the plaintiff to go "law shopping" in various Member States, according to the different jurisdictions where he/she chooses to bring the case. It should be clear that the Shevill decision regarding awarding the local damage would also have a severe impact on the media.

To implement the Commission's approach on Rome II would clearly have the effect of encouraging victims to forum shop. This will be a source of high legal uncertainty for the publisher, the broadcaster and the journalists: it is impossible to know which law would apply but this is especially the case when publishing or broadcasting on the Internet, where different laws could apply to the same case if the plaintiff's claim arises from both print and online publication. This will inevitably affect the editorial activities of the EU media sector and this will directly prejudice press freedom. Offline and online distribution would thereby be reduced and thus hamper access to information from a variety of sources. Brussels I gives the plaintiff a wide choice of jurisdiction, therefore the applicable law should be the law of the country to which the media is principally directed in order to ensure legal certainty and provide for a fair balance between the parties.

• Principally directed cannot be assumed to be the country of origin

It is important to underline that the amendments adopted by the European Parliament represent a real compromise and do not amount to the country of origin: a publication or broadcast can be principally directed to different countries, which is not necessarily the country of origin of the publisher or broadcaster.

As far as television is concerned, there are quite a number of cases where satellite channels are mainly or exclusively intended for the public in a particular country which is not the country in which the broadcaster is established.

A similar situation could also apply to newspapers or magazines, which are published in the country of the publisher, but are principally directed to another Member State which shares the same language and where most of the readers are located.

• Amendment 57 to Article 6 by the European Parliament

Amendment 57 to Article 6 stipulates that, where the violation of privacy rights or rights relating to the personality is caused by a publication or by a broadcast, the country in which the most significant element or elements of the damage occur or are likely to occur "shall be deemed to be the country to which the publication or broadcasting service is principally directed".

This amendment is a step forward compared to the Commission proposal because it provides legal certainty and predictability as to the applicable law in cases of defamation. The criteria, such as the language of the publication or broadcast or the sales or audience size in a given country as a proportion of total sales or audience size or a combination of these factors, are necessary to define the wording "principally directed".

Furthermore, in case this principle ("principally directed") does not enable a Court to determine the applicable law, the criterion of the law of the country in which the editorial control is exercised is also indispensable, in particular for international publication or broadcast, for which it will be very difficult to foresee the country to which it is principally directed.

Finally, the respect of press freedom is strengthened in Amendment 56 to Recital 12, which indicates that Rome II does not prevent Member States from applying their constitutional rules relating to freedom of the press and freedom of expression in the media.

Our recommendation:

We recommend Member States' representatives to support the amendments 56 and 57 to Recital 12 and Article 6 adopted by the European Parliament as they provide legal certainty and a real compromise on applicable law to defamation.

2) Recital 12a) new and Article 26a new go beyond the objectives of Rome II

The European media and journalists' representatives are concerned that two new provisions have been inserted by the European Parliament in the scope of Rome II.

Recital 12a new (amendment 10) and Article 26a new (amendment 54) notably refer to the establishment of "a self-obligating European Media Code and/or a European Media Council". They also indicate that "the Commission is called on to consider what scope there is for providing support for such a process and to present recommendations, in a report, on what form more far-reaching steps should take."

We would like to emphasize that these amendments have no connection with private international law and go way beyond the objectives of Rome II, whose scope is limited to the law applicable to non-contractual obligations. Moreover, in view of the different legal systems and editorial traditions, which have evolved throughout history and are specific to each country, European harmonisation through self-regulation by the media is an unrealistic expectation.

Our recommendation:

We recommend Member States' representatives to reject the amendments 10 and 54 to Recital 12a and Article 26a.

We trust that you will be able to take account of our concerns and we remain at your disposal for any complementary information you may require.

Yours sincerely,

The undersigned European media and journalists organisations:

Ross Biggam - Association of Commercial Television in Europe (ACT)
Director General

Christina Sleszynska - Association of European Radios (AER)
Manager

Nicola Frank - European Broadcasting Union (EBU)
Deputy Head of Brussels Office

Arne König - European Federation of Journalists (EFJ)
Chairman

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

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

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

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

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For any information, please contact:

ACT - Petra Wikström
Association of Commercial Television in Europe
rue Joseph II, 9-13
1000 Bruxelles
Tél : 32 2 736 0052
Fax : 32 2 735 4172
E-mail : pw@acte.be

AER - Christina Sleszynska
Association of European Radios
Avenue d'Auderghem 76
1040 Bruxelles
Tel: 00 32 2 736.91.31
Fax: 00 32 2 732.89.90
E-mail: sleszynska@aereurope.org

EBU - Nicola Frank
European Broadcasting Union
rue Wiertz 50
1050 Bruxelles
Phone: 32 2 286 9112
Fax: 32 2 286 9110
E-mail: frank@ebu.ch

EFJ - Pamela Morinière
European Federation of Journalists
Residence Palace
Rue de la loi 155
1040 Brussels
Phone : 00 32 2 235 22 16
Email : pamela.moriniere@ifj.org

ENPA - Sophie Scrive
European Newspaper Publishers' Association
Rue des Pierres 29 bte 8
1000 Bruxelles
Belgique
Phone : 32 2 551 01 90
Fax : 32 2 551 01 99
e-mail : sophie.scrive@enpa.be

EPC - Angela Mills Wade
European Publishers Council
26 Avenue Livingstone
1000 Brussels
Phone: 32 2 231 1299
Fax: 32 2 230 7658
Email: angela.mills@wade.uk.net

FAEP - David Mahon
European Federation of Magazine Publishers
Rue d'Arlon 15
1050 Brussels
Phone: 32 2 286 80 94
Fax: 32 2 2286 80 95
Email: david.mahon@faep.org

FEP- Anne Bergman-Tahon
Federation of European Publishers
204, Avenue de Tervuren
B-1150 Bruxelles
Phone: 32 2 770.11.10
Fax: 2 2 771.20.71
Email: abergman@fep-fee.be

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