Jan-Jaap Kuipers, “Towards a European Approach in the Cross‐Border Infringement of Personality Rights”

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Jan-Jaap Kuipers has published Towards a European Approach in the Cross-Border Infringement of Personality Rights, 12 German Law Journal 1681-1706 (2011). Here is the Introduction:

A.  Introduction

Globalization has led to the emergence of broadcasting services and books aimed at a global audience.  Authors of books, journals, and articles have gained readers worldwide.  Due to the Internet, the spreading of ideas on a global level has never been easier.  The other side of the coin is that authors run a risk of being exposed to civil proceedings in many jurisdictions.  What is considered to be proactive journalism, or a provocative academic comment in some jurisdictions is considered to be libel or defamation in others.   We speak of “libel tourism” when defamation proceedings are brought in a forum that has only vague connections to the case, but happens to be very plaintiff-friendly.

The freedom of speech and the right to private life are both enshrined in the European Convention on Human Rights and the Charter on Fundamental Rights of the European Union.   Although the Member States of the European Union are united by common principles, they have struck different balances between the competing fundamental rights.  The balancing of those fundamental rights becomes even more sensitive when the publisher or author and the alleged victim are not domiciled within the same jurisdiction.  The infringement of the right to private life by foreign media becomes an international horizontal conflict between fundamental rights.

The freedom of speech, and the intrusion on private life that an individual has to tolerate in the name of public debate, are the reflection of a particular view on how a democracy should operate.  The determination of the law applicable to a cross-border infringement of personality rights is therefore an extremely sensitive issue.  Although the Commission’s proposal for a Rome II Regulation did lay down a specific conflict of laws rule relating to the infringement of personality rights, the issue proved to be too controversial to reach agreement. The determination of the law applicable to non‐contractual obligations arising out of violations of privacy and rights relating to personality, including defamation, was therefore in Art. 1(2g) explicitly excluded from the scope of Rome II. The present paper attempts to analyze to what extent it is necessary to revise the “defamation exclusion” of Rome II. If it would be necessary to include defamation in Rome II, what would be the most appropriate conflict of laws rule?

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