2009/2170(INI) | [ParlTrack]

Motion for a resolution
Recital C

C. whereas consideration of an appropriate rule has been coloured by controversy about "libel tourism", a type of forum shopping in which a claimant elects to bring an action for defamation in the jurisdiction which is considered most likely to produce a favourable result – generally that of England and Wales, which is "regarded as the most claimant-friendly in the world"; whereas, however, this is an issue that goes beyond the United Kingdom and is also of concern for other jurisdictions;

Amendment 10 #

Motion for a resolution
Annex - Article 5 a – paragraph 1

(1) W~~ithout prejudice to Article 4(2) and (3),~~here the claimant sues for all the damages before the courts of the pla~~w applicable to a non-contractual obligation arising out of~~ce in which he or she has the centre of his/her interests, with regard to a violations of privacy ~~and~~or rights relating to personality, ~~including defamation, shall be the law of the country in which the rights of the person seeking compensation for damage~~on condition that those rights are, or are likely to be, directly and substantially affected~~. However~~, the law applicable shall be the law of the country in which the person claimed to be liable is habitually resident if he or she could not reasonably have foreseen substantial consequences of his or her act occurring in the country designated by the first sentenceto a non- contractual obligation arising out of violations of privacy and rights relating to personality, including defamation, shall be the law of the country in which the person claimed to be liable is habitually resident. This shall also be the applicable law if the claimant sues for all damages before the courts of the Member State in which the defendant is domiciled.

Amendment 11 #

Motion for a resolution
Annex - Article 5 a – paragraph 1

(1) Without prejudice to Article 4(2) and (3), the law applicable to a non-contractual obligation arising out of violations of privacy and rights relating to personality, including defamation, shall be the law of the country in which the rights of the person seeking compensation for damage are, or are likely to be, directly and substantially affected. However, the law applicable shall be the law of the country in which the person claimed to be liable is habitually resident if he or shewhere the claimant has his or her centre of interests. The claimant must be able to demonstrate that substantial harm has occurred to his or her rights in that country. However, if the person claimed to be liable (the defendant) could not have reasonably ~~have~~ foreseen the substantial consequences of ~~his or he~~their act occurring in the country designated by the first sentence, the law applicable shall be the law of the country in which the defendant is habitually resident.

Amendment 12 #

Motion for a resolution
Annex - Article 5 a – paragraph 1

Amendment 13 #

Motion for a resolution
Annex - Article 5 a – paragraph 1 a (new)

(1a) In any case, Member States shall ensure that parties have access to detailed information on alternative forms of dispute resolution before proceeding to court.

Amendment 14 #

Motion for a resolution
Annex – Article 5 a – paragraph 1 a (new)

(1a) When the rights of the person seeking compensation for damage are, or are likely to be, affected in one or more than one Member State, and that person sues in the courts of one of the Member States in the territory of which content is or may be accessible, the defendant may not be made subject to stricter requirements and/or more unreasonable litigation costs than those provided for by the substantive law applicable in his or her country of domicile.

Amendment 15 #

Motion for a resolution
Annex – Article 5 a – paragraph 2

(2) Whe~~n the rights of the person seeking compensation for~~re the violation is caused by the publication of printed matter or by a broadcast, the country in which the most significant element or elements of the damage ~~are,~~occur or are likely to ~~be, affected in more than one country, and this person sues in the court of the domicile of the defendant,~~occur shall be deemed to be the country to which the publication or broadcasting service is principally directed or, if this is not apparent, the country in which editorial control is exercised, and that country's law shall be applicable. The country to which the publication or broadcast is directed shall be determined in particular by the cla~~imant may instead choose to base his or her claim on the law of the court seised~~nguage of the publication or broadcast or by sales or audience size in a given country as a proportion of total sales or audience size or by a combination of those factors.

Amendment 16 #

Motion for a resolution
Annex – Article 5 a – paragraph 2

(2) When the rights of the ~~person seeking compensation for damage~~claimant are, or are likely to be, affected in more than one country, and thatis person sues in the court of the domicile of the defendant, the claimant may instead choose to base his or her claim on the law of the court seised.

Amendment 17 #

Motion for a resolution
Annex - Article 5 a – paragraph 3

(3) The law applicable to the right of reply or equivalent measures and to any preventive measures or prohibitory injunctions against a publisher or broadcaster regarding the content of a publication or broadcast shall be the law of the country in which the broadcaster or publisher has its habitual residence.

Amendment 18 #

Motion for a resolution
Annex – Article 5 a – paragraph 3

~~(3) The law applicable to the right of reply or equivalent measures shall be the law of the country in which the broadcaster or publisher has its habitual residence.~~deleted

Amendment 19 #

Motion for a resolution
Annex – Article 5 a – paragraph 3 a (new)

(3a) Paragraph 3 shall also apply to a violation of privacy or of rights relating to personality resulting from the handling of personal data.

Amendment 2 #

Motion for a resolution
Recital C a (new)

Ca. whereas libel tourism is facilitated by Regulation (EC) No 44/2001 ("the Brussels I Regulation"), which, in effect, allows a claimant to bring an action in the jurisdiction of his or her choice;

Amendment 20 #

Motion for a resolution
Annexe - Article 5 a – paragraph 4 a (new)

(4a) In relation to paragraph 1, the litigation costs shall not exceed those imposed by the country of the applicable law.

Amendment 3 #

Motion for a resolution
Recital C b (new)

Cb. whereas a balance of interests needs to be struck, in particular when dealing with issues that have an impact on the preservation of the freedom of the press and the journalistic profession; whereas the choice of court lies with the claimant, which greatly facilitates the pursuit of claims against publishers and/or the media; whereas the provisions on applicable law must thus ensure a high level of legal certainty for journalists and the media in cases of cross-border litigation;

Amendment 4 #

Motion for a resolution
Recital H

H. whereas legal remedies must be available when that freedom is abused, particularly to the detriment of peoples' private lives and reputation12; whereas, where powerful media organisations are guilty of such abuse, the victims, who are not always affluent business tycoons or media celebrities and may be simply ordinary citizens, may have in practice no access to justice on account of the expense 1 Reputation is nowadays considered to be protected by the ECHR as part of private life (see N. v. Sweden, No. 11366/85). 2 Reputation is nowadays considered to be protected by the ECHR as part of private life (see N. v. Sweden, No. 11366/85). of legal proceedings each Member State should ensure that such remedies exist and are effective in cases of infringements of such rights; whereas Member States should strive to ensure that prohibitively high legal costs do not result in any claimant being denied access to justice in practice; whereas the cost of legal proceedings can also be ruinous for ~~publishers~~the media;

Amendment 5 #

Motion for a resolution
Recital L

L. whereas it is considered that a provision of the type set out in the annex coupling the basic principle that the law of the place where the damage occurs is paramount with a foreseeability clause to take the legitimate interests of publishers into account ought to be put forward by the Commission in order to fill the gap in the Rome II Regulation; whereas the criterion of the closest connection should be used for the right of reply, since such relief should be granted swiftly and is interim in nature; whereas the provision of the type set out in the Annex should also cater for party autonomy and the option of electing to apply the lex fori where the claimant elects to sue in the ~~publisher~~media's courts for damage sustained in more than one Member State;

Amendment 6 #

Motion for a resolution
Paragraph 1

1. Requests the Commission to submit, on the basis of point (c) of Article 81(2) of the Treaty on the Functioning of the European Union, a proposal designed to add to the Rome II Regulation a provision to govern the law applicable to a non-contractual obligation arising out of violations of privacy and rights relating to personality, including insult and defamation, following the detailed recommendations set out in the annex hereto;

Amendment 7 #

Motion for a resolution
Paragraph 2

2. Further requests the Commission to submit, on the basis of point (d) of Article 81(2) of the Treaty on the Functioning of the European Union, a proposal for the creation of a centre for the voluntary settlement of cross-border disputes arising out of violations of privacy and rights relating to personality, including insult and defamation, by way of alternative dispute resolution;

Amendment 8 #

Motion for a resolution
Annex - Article 5 a – Title

Article 5a – PLiability for damages arising from violations of the right to privacy ~~and~~or of rights relating to personality

Amendment 9 #