From where are they Casting Stones? – Determining Jurisdiction in Online Defamation Claims

Sandra Schmitz

Abstract

The question of international jurisdiction in defamation cases is long running. On the EU level, Regulation 44/2001 provides that in matters relating to defamation, the court where the defendant is domiciled, as well as the court for the place where the harmful event occurred or may occur, are competent to hear the case. However, national courts struggled to apply traditional concepts that exist in the offline world to online matters. In its recent judgment in C-509/09 (eDate Advertising GmbH) and C-161/10 (Martinez) on the interpretation of place of the harmful event, the ECJ held that a multiplicity of possible fora exists for online defamation. Besides the connecting factors developed in C-68/93 (Shevill), the Court adapted a supplementary connecting factor: the centre of interests. Based on the opinion of the AG in joined cases C-509/07 and C-161/10 and an analysis of national case law, this paper calls for a test of objective relevance rather than a mere subjective interpretation of forum conveniens.

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