311Infringement of Personality Rights via the Internet: Jurisdiction and Choice of Law

Prof. Symeon C. Symeonides

Alex L. Parks Distinguished Professor of Law, Willamette University, USA, LL.B., LL.M., S.J.D., Ph.D.h.c., LL.D.h.c. mult., MAE

Due to the time limitations of this Conference, this presentation must necessarily be a brief one, despite the complexity of this topic[1]. It is divided into two parts. The first, titled De Lege Lata, describes the present state of affairs on the questions of jurisdiction and applicable law in conflicts arising from infringement of personality rights through the internet, such as defamation or invasion of privacy. The second part, titled De Lege Ferenda, presents the first comprehensive international attempt to address these questions: a Resolution, adopted in 2019 by the Institut de Droit International, which I had the honor of drafting.

I. De Lege Lata

1. “Conflicts on Steroids”

Conflicts of laws arising from infringements of personality rights have always been difficult, but the advent and proliferation of the internet has increased their frequency and intensity. In fact, these and other conflicts arising from the cross-border use of the internet have been characterized as “conflicts on steroids”[2]. These conflicts are difficult and politically sensitive because of the confluence of several factors, which include considerable differences among various legal systems on substantive law, jurisdiction, and choice of law[3].

312The substantive law differences result from the fact that diverse societies prioritize differently certain important values, such as freedom of speech and protection of privacy. For example, in some countries such as the United States, freedom of speech trumps protection of privacy, while in others protection of privacy trumps freedom of speech.

The jurisdictional differences include, inter alia, the contacts that each procedural system requires for the assertion of adjudicatory jurisdiction, as well as the permissible scope of available remedies. For example, in some systems, a contact or contacts of the claim with the forum state without else provide a sufficient basis for jurisdiction, while other systems require additional contacts with the defendant. In terms of available remedies, some systems follow the “mosaic” principle, which in some cases limits recovery for injuries sustained in the forum state, while other systems follow the “single publication rule” which allows recovery for injuries sustained in all states.

Finally, the choice-of-law differences are evident in the adoption of different rules for designating the state whose law will govern the merits of the case, such as the lex loci delicti, the lex loci damni, and the favor laesi rules and, more recently, softer rules based on the concept of the closer connection.

On top of all of these is the ubiquity and borderlessness of the internet. As the CJEU noted, “the placing online of content on a website… is intended… to ensure the ubiquity of that content… [which] may be consulted instantly by an unlimited number of internet users throughout the world…”[4].

Each of the above differences is outcome-determinative, but when they all appear in the same case, as they do in these cases, they tend to produce a “perfect storm” of conflicts of laws. The only reason this might not be an apt metaphor for these cross-border internet conflicts is that, unlike a perfect storm, which is formed by a rare convergence of several forces, these conflicts are anything but rare.

2. Different Values

Several recent cases illustrate the conflicts created from the different prioritization of values, such as freedom of speech and protection of privacy. Among them are the Yahoo! judgments in France[5] and the United States[6], which presented a conflict 313between the First Amendment of the United States Constitution, which guarantees the right of free speech, and Article R645–1 of the French Criminal Code, which prohibits exhibition of Nazi propaganda and artifacts for sale and the purchase or possession of such materials within France. Although for technical reasons, the American courts did not reach the merits of this case, there is little doubt that the French judgment would be unenforceable in the United States if it purported to restrict Yahoo!’s freedom of speech in the United States. Even so, there is little ambiguity about the underlying clash of values in these cases. The almost absolute free speech imperative of the First Amendment collided with France’s right to determine what forms of speech and conduct are acceptable within its borders. In that sense, the Yahoo! cases are a proxy for many more conflicts lurking in every cross-border situation involving freedom of speech.

Another example is the Google Spain Case[7], in which the CJEU recognized the so-called “right to be forgotten”. That right has since been codified in the European Union’s General Data Protection Regulation (GDPR) of 2016 as the “[r]ight to erasure”[8]. As documented elsewhere[9], several countries outside the EU, including Japan and China, have expressly refused to recognize this right. In other countries, particularly in Latin America, commentators have raised concerns that such a right would enable perpetrators of human rights violations or corrupt officials to hide their crimes. The argument is that the extraterritorial application of EU decisions on this subject would jeopardize the “right to the truth”, which has been developed by the Inter-American Commission on Human Rights. Although some of these concerns can be alleviated by the exceptions to which this right is subject under Article 17 of the GDPR, as well as the balancing act that subsequent CJEU decisions contemplate[10], suspicions remain. Finally (and predictably), the right to be forgotten is intensely controversial in the United States, where most commentators consider it incompatible with the principles enshrined in the First Amendment.

Perhaps the sharpest conflicts, albeit ones that rarely end up in court, involve the concept of blasphemy and what amounts to it[11]. Fifty-one countries still have anti-blasphemy laws and, in some of them, the penalty is death. Recent examples 314include the fatwā issued by Iranian clerics against the British author Salman Rushdie, the riots caused by the Danish Cartoons, the massacres following the Charlie Hebdo cartoons, and the beheading of the French teacher Samuel Paty in 2020.

3. Different Jurisdictional Philosophies: The US and the Rest

The differences in jurisdictional philosophies center on the type of forum contacts that various legal systems consider necessary for the assertion of “specific” (as opposed to “general”) adjudicatory jurisdiction. For example, in many states (including most civil law states), it suffices if there is a connection between the forum state on the one hand, and the plaintiff and/or the claim, on the other hand. By contrast, other states, such as the United States, require certain contacts between the forum and the conduct and activities of the defendant.

a. The US

The American requirement of contacts with the defendant as a predicate for specific adjudicatory jurisdiction is anchored in the command of the Due Process clause of the Federal Constitution, which stipulates that “… no state shall deprive a person of life, liberty, or property without due process of law”[12]. In this context, that person is the defendant, not the plaintiff[13]. The defendant has a right not to be “haled” into court in a state with which the defendant had no connection. This requirement is met only when the connection between the defendant with the forum state is such as to not violate the “traditional notions of fair play and substantial justice”[14]. It is not enough that the defendant could have foreseen the suit in the particular state. Foreseeability alone is not enough. This requirement is satisfied only if the defendant “purposefully availed itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protection of its law”[15]. This is the famous principle of “purposeful availment”.

J. McIntyre Machinery v. Nicastro[16] illustrates the role of this principle, as well as the differences between American jurisdiction law and the law of most other countries. The defendant in this case was a British manufacturer who sold its machines throughout the United States. One of those machines ended up in the state of New Jersey and caused injuries to a New Jersey worker who then sued the manufacturer in New Jersey. In most other countries, the occurrence of the injury in the forum 315state is a sufficient basis for adjudicatory jurisdiction. However, the US Supreme Court held to the contrary, reasoning that, despite the sale of one machine in New Jersey, the defendant did not purposefully avail itself of the privilege of doing business in New Jersey, even though the defendant was doing business throughout the US as a whole.

In Walden v. Fiore[17], the Supreme Court held that Nevada could not constitutionally assert jurisdiction to adjudicate a tort action brought by two Nevada domiciliaries against a Georgia police officer whose intentional conduct in Georgia’s Atlanta airport (inter alia filing an allegedly false affidavit with federal authorities) caused injury to the plaintiffs in Nevada. The defendant knew that the plaintiffs were domiciled in Nevada and that their injuries, if any, would occur there. However, after noting that the defendant did not have any contacts with Nevada, the Court concluded that neither this knowledge, nor the occurrence of the injury in Nevada, sufficed to permit that state to assert jurisdiction under the Court’s jurisprudence.

The US Supreme Court has not yet decided an internet jurisdiction case but, almost four decades ago, it decided two defamation cases involving print media. The first case was Keeton v. Hustler[18], in which a New York plaintiff sued in New Hampshire a California-based publisher of a nationally published magazine that contained defamatory material about the plaintiff. Although only a “small portion” of the magazines (10,000 to 15,000 copies) had been sold in New Hampshire, the plaintiff, relying on the “single publication rule”[19], sought damages for her reputational injuries throughout the United States. The Supreme Court held that the “regular circulation” of the defendant’s magazines in New Hampshire was sufficient to permit jurisdiction there and to provide a remedy for all of the plaintiff’s injuries under the single publication rule. The Court reasoned that the fact that the defendant “continuously and deliberately exploited the New Hampshire market” made it “reasonabl[e] [to] anticipate being haled into court there”[20]. Thus, Keeton stands for the proposition that “purposeful availment” plus injury in the forum state permit jurisdiction in that state, even if the plaintiff is not domiciled there and has suffered only part of her injuries there.

316The second defamation case was Calder v. Jones[21], in which an actress living in California sued in that state the publisher, the writer, and the editor of a story printed in a national tabloid newspaper that sold many copies in California. Based on Keeton, California clearly had jurisdiction over the publisher, but the further question was whether California also had jurisdiction over the writer and the editor (hereinafter “defendants”), both of whom were domiciled in Florida. The Supreme Court held that California’s assertion of jurisdiction over the defendants was permissible under the Due Process clause because their actions in Florida were intended to produce, and did produce, “effects” in California. The Court noted that the defendants were “not charged with mere untargeted negligence” but rather with “intentional… actions [which] were expressly aimed at California”[22]. They “knew that the brunt of [the] injury would be felt by [plaintiff] in the State in which she lives and works and in which the [newspaper] has its largest circulation”[23]. Under the circumstances, the Court concluded, the defendants “must reasonably anticipate being haled into court [in that state] to answer for the truth of the statements made in their article”[24].

b. Other Common Law Countries: Australia, Canada, and the UK

The above examples offer a taste of the American philosophy of jurisdiction, which focuses intensely and almost exclusively on the defendant’s contacts with the forum state. In other common law countries, such as Australia, Canada and the United Kingdom, such contacts are not necessary.

Dow Jones Co. v. Gutnick[25] is a good example from Australia. The plaintiff, a domiciliary of the Australian state of Victoria, filed a defamation action in that state against Dow Jones, a US company that published an online newsletter primarily intended for US subscribers but accessible in Victoria, which contained allegedly defamatory references to the plaintiff. The plaintiff confined the scope of his lawsuit to his reputational injuries that occurred in Victoria and stipulated that he would not sue in any other forum. Victoria (and Australia) does not follow the single publication rule and its courts have jurisdiction if the defamatory article was “published” in Victoria. The defendant contested jurisdiction, arguing that the article was not published in Victoria but rather in New Jersey, where it was uploaded on the defendant’s servers located in that state. Both the Victoria court and the High Court of Australia resoundingly rejected this argument and held that the article was published in Victoria, and thus Victoria had jurisdiction to entertain the action. To accept the publisher’s contrary argument, the Court reasoned, would not only lead to “[a]dventitious” 317results but would also give publishers a carte blanche by rewarding their potentially “opportunistic” decisions on where to locate their servers[26]. This would “evidently be convenient to the party putting material on a web server”, but the “convenience of one party” must be juxtaposed to other “no less relevant, considerations”, such as “the competing rights and interests which an action for defamation must accommodate”[27]. Moreover, the Court concluded, “[a]ctivities that have effects beyond the jurisdiction in which they are done may properly be the concern of the legal systems in each place”[28].

The Court also rejected the defendant’s argument that New Jersey law would govern the merits of the case and thus Victoria was “a clearly inappropriate forum”[29]. The Court noted that “[t]he place of commission of the tort for which [the plaintiff] sue[d]” was in Victoria and thus the law of Victoria would govern the merits because “[t]hat is where the damage to his reputation of which he complains in this action is alleged to have occurred, for it is there that the publications of which he complains were comprehensible by readers. It is his reputation in that State, and only that State, which he seeks to vindicate”[30].

Haaretz.com v. Goldhar[31], a case decided by the Supreme Court of Canada, was somewhat similar to Gutnick in that the plaintiff confined his claim to the reputational injuries he suffered in his home state, the province of Ontario. The plaintiff owned and managed Israel’s most popular football team (“Maccabi”) and spent a few weeks per year in Israel. He filed a defamation action in Ontario against the publisher of an Israeli newspaper for an allegedly defamatory article that was published in the newspaper in Hebrew and English and also posted on the defendant’s Israeli website. The trial court found out that 200 to 300 people in Canada had read the posted article compared to approximately 70,000 people who had read it in Israel. All nine justices of the Supreme Court agreed that Ontario had jurisdiction because the article was read (i.e., “published”) there. However, six justices held that the trial court should have granted the defendant’s forum non conveniens motion and should have dismissed the action in favor of a trial in Israel as “a clearly more appropriate forum”[32].

318As this case illustrates, the discretionary doctrine of forum non conveniens, if properly used, is a good antidote to the forum shopping generated by loose or lenient jurisdiction rules. Until recently, the reluctance of English courts to employ this doctrine in defamation cases is one of the reasons for which London became known as the “libel capital of the world”[33]. The other reasons are England’s loose jurisdiction rules (which allow jurisdiction as long as the article is accessible in England) and its pro-plaintiff rules on the burden of proof. The enactment of a new Defamation Act for England and Wales in 2013 may reduce somewhat the flow of libel tourists, not so much because of the substantive changes it introduced but because of a new rule on jurisdiction over foreign defendants, which turns the negative forum non conveniens doctrine into an affirmative forum conveniens rule. Section 9(2) of the Act provides that a court in England or Wales does not have jurisdiction “unless the court is satisfied that, of all the places in which the statement complained of has been published, England or Wales is clearly the most appropriate place in which to bring an action in respect of the statement”[34].

c. European Union

In continental Europe, there are still rules that authorize jurisdiction based solely on the contacts between the forum state and the plaintiff. The paradigmatic example is Article 14 of the French Code civil of 1804, which provides in part that “[a]n alien, though not residing in France, … can be brought before French courts for obligations contracted by him in a foreign country toward Frenchmen”. As written, the article vests French courts with jurisdiction to adjudicate any dispute in which France’s only contact is the plaintiff’s French nationality. Moreover, although the article refers to “contracted” obligations, French courts have also applied it to non-contractual obligations. In recent years, French courts rely on this article only as a last resort when there is no other basis for jurisdiction, but the article is still available and can be used as leverage against foreign defendants domiciled outside the EU. By placing Article 14 on the jurisdictional “black list,” the Brussels Convention, and later the Brussels I Regulation, have narrowed the article’s reach by prohibiting its use against defendants domiciled in the European Union[35]. At the same time, the Regulation expanded the article’s scope in two respects: first, by making it available to non-French plaintiffs domiciled in France[36], and second, by mandating the recognition throughout the EU of French judgments rendered against non-EU domiciled defendants on the basis of Article 14[37].

319Another example of an exorbitant assertion of jurisdiction is § 23 of the German Code of Civil Procedure, which first appeared in the Prussian General Laws of 1794 and has since been duplicated in more than a dozen European countries[38], as well as Japan. Like Article 14 of the Code civil, this provision requires only a single connection with the forum –the presence of property owned by the defendant– but, unlike Article 14, this provision is not confined to domestic plaintiffs, although they are its most likely beneficiaries. However, § 23 can be far more ominous for defendants because unlike Article 14, which confers specific jurisdiction only for the particular contractual or non-contractual obligation, § 23 confers general jurisdiction for any and all claims against the defendant, including claims unrelated to the property (or, for that matter, to Germany), and claims that significantly exceed the value of the property. Although the German Bundesgerichtshof has imposed some restrictions on the use of this provision by foreign plaintiffs, and the Brussels I Regulation has blacklisted it, German plaintiffs may still use it against defendants domiciled outside the EU.

While the Brussels I Regulation has placed the aforementioned French and German provisions on the blacklist, the Regulation itself contains several grants of “special” (or specific) jurisdiction over non-resident defendants, which many outside observers would consider exorbitant. For example, Sections 3-5 (Arts. 10-23) of Brussels I contain several provisions which, for all the right reasons, favor insureds[39], consumers[40] and employees[41] by allowing them to sue the other party in their respective domiciles, without requiring any connections between that party and the forum state. For equally good reasons, Article 7(2)(a), as interpreted by the ECJ/CJEU, authorizes jurisdiction in cross-border torts based solely on the occurrence of the injury in the forum state. Finally, Article 8(1) regarding co-defendants is another example of Brussels I’s preoccupation with protecting plaintiffs or serving certain systemic values, such as judicial efficiency, rather than protecting the rights of the defendant.

Shevill v. Presse Alliance SA[42], which involved defamation through a print medium, was the first EU case involving a cross-border infringement of personality rights. An English plaintiff sued a French newspaper that sold 0.1 percent of its copies in England. 320One of the questions was whether England had jurisdiction, and that question depended on the meaning of Article 5(3) of the Brussels Convention [the predecessor of Article 7(2)(a) of the Brussels I Regulation], which assigned special jurisdiction for non-contractual obligations to the courts for “the place where the harmful event occurred”. The European Court of Justice (ECJ) relied on Bier v. Mines de Potasse d’ Alsace[43], a case involving a cross-border environmental tort, which held that the phrase “place of the harmful event” covered both the place of conduct and the place of the resulting injury, and that the plaintiff had the option of suing in either place. Following that holding, the Shevill Court stated that, in libel cases, the place of conduct (or, in the Court’s and the Convention’s terminology, “the place of the event giving rise to the damage”) was “the place where the publisher… is established, since that is the place where the harmful event originated and from which the libel was issued and put into circulation”[44]. The Court held that the courts of that place had jurisdiction “to hear the action for damages for all the harm caused by the unlawful act”, including harm caused in other states[45]. However, the Court also held that the courts of a state “in which the defamatory publication was distributed and in which the victim claims to have suffered injury… have jurisdiction to rule on the injury caused in that State”, but not for injuries sustained in other states[46]. With this bifurcation, the Court introduced what has become known as the “mosaic principle”.

In 2011, the CJEU (the successor of the ECJ) decided together two cases involving infringement of personality rights through the internet –eDate Advertising GmbH v. X and Martinez v. MGN Limited[47]. In the first case, eDate, a German plaintiff sued the operator of an Austrian website, and in the second case, Martinez, a French plaintiff sued the operator of an English website. Both cases centered on the meaning of the same phrase that was involved in Shevill –the “place where the harmful event occurred” in the Brussels I Regulation[48]. The Court reiterated the Shevill holding, which had recognized the plaintiff’s right to sue in either the state of conduct (the publisher’s “establishment”) or the “State in which the publication was distributed and where the victim claims to have suffered injury to his reputation”[49].

However, the Court also distinguished between print publications and online communications and saw the need to “adapt” the jurisdictional bases recognized 321in Shevill by providing an additional forum in which the victim “may bring an action… in respect of all damage caused”[50]. This additional forum is “the place in which the victim has his center of interests”[51]. This place “corresponds in general to his habitual residence”, but, depending on the circumstances, it may be in the place where the victim “pursu[es]… a professional activity” or in another place that has “a particularly close link”[52]. The Court explained that the creation of this additional forum was not unfair to potential defendants because “the publisher of harmful content is, at the time at which that content is placed online, in a position to know the centers of interests of the persons who are the subject of that content” and can “reasonably… foresee before which court he may be sued”[53]. Finally, the Court explained that the creation of this new forum did not eliminate the right of the plaintiff to sue in the second forum recognized in Shevill, namely to sue in a state that is not her center of interest but is nevertheless a state in which she suffered an injury because the material was accessible there. However, the Court reiterated that the jurisdiction of that state was limited to granting relief only for the injuries sustained in that state[54].

The Court summarized its holding, by stating that, in addition to the defendant’s domicile which has general jurisdiction, the plaintiff has the option of suing (1) in the state in which “the publisher of th[e] content is established”, (2) in the state in which the “center of [the plaintiff’s] interests is based”, and (3) in the state “in the territory of which content placed online is or has been accessible”[55]. In the first two cases (as well as in cases filed in the defendant’s domicile), a successful plaintiff may recover for “all the damage caused”, whereas in the third case, the plaintiff may recover “only in respect of the damage caused in the territory of the Member State of the court seized”[56]. Thus, the mosaic principle survived the eDate case, but its significance was reduced because of the availability of a new plaintiff-affiliated forum with jurisdiction to grant relief for all the plaintiff’s injuries.

In Bolagsupplysningen OÜ, Ingrid Ilsjan v. Svensk Handel AB[57], the CJEU held that the concept of the “center of interests” applied both to natural and legal persons and that when a legal person has its seat in one state but carries out “the main part of its activities” in another state, the latter state is presumptively considered to be that person’s center of interests because “any injury to that reputation would 322be felt most keenly there”[58]. This means that the person can sue in that state not only for the injuries sustained in all states but also for an injunction ordering the “rectification” or removal of the offending material[59]. However, the Court also held that, under Shevill and eDate, a state in which the material was merely accessible but which does not qualify as the plaintiff’s center of interest may only award damages for the injuries sustained in that state. That state does not have jurisdiction to entertain an application for rectification or removal of the offending material because this is “a single and indivisible application and can, consequently, only be made before a court with jurisdiction to rule on the entirety of an application for compensation for damage”[60], namely the state of the plaintiff’s center of interests or the defendant’s establishment or domicile.

The latest CJEU judgment on this subject is Gtflix Tv v. DR[61], in which a defendant, domiciled in Hungary and engaging in online activities there, allegedly caused injury to the Czech plaintiff via content posted online. The Czech Republic was the plaintiff’s domicile, the place where most of its injuries occurred, and also the plaintiff’s center of interests. However, rather than suing in either Hungary or the Czech Republic, the plaintiff sued in France where the posted content was accessible and thus the place where “some” injury occurred. The court held that France had jurisdiction to award damages for the French injury under the mosaic principle but, under Bolagsupplysningen, France did not have jurisdiction to order the rectification or removal of the content.

To summarize, under EU jurisdiction rules, a person whose personality rights have been infringed upon has the option of suing in four, potentially different, states: (a) the defendant’s domicile, (b) the defendant’s “establishment” (usually the place of conduct), (c) the plaintiff’s center of interest, and (d) the state in which some injury occurred. In the first three cases, the plaintiff may recover for injuries sustained in all states and may also obtain rectification or removal of the offending material. In the last case, the plaintiff may recover only for the injuries in the forum state (mosaic principle) and may not obtain rectification or removal. Under American jurisdiction law, the first two states listed above have jurisdiction for all injuries under the single publication rule, as well as for rectification or removal. However, the last two states (the plaintiff’s center of interests or the place of injury) do not have jurisdiction in the absence of contacts with the defendant (e.g., “purposeful availment”) of the type that would satisfy the command of the Due Process clause.

3234. Choice of Law

a. Choice-of-Law Rules for Infringement of Personality Rights

In recent years, seventeen countries and all six Australian states have enacted choice-of-law rules dealing specifically with conflicts arising from infringement of personality rights. In addition, Norway and Serbia have produced draft codifications, which are pending before the parliaments of those countries. Fourteen of these codifications give the victim two to four choices of the applicable law. Table 1, below, depicts these choices. The remaining codifications [Australia, China, Japan, Norway (draft), and Taiwan] do not give the victim a choice[62].

Table 1. Choice-of-law rules for infringement of personality rights[63]

		Victim’s choices
		Lex fori	V’s ctr.	V’s dom.	I	C	D’s dom.
1	Albania			✔ *	✔*		✔
2	Bulgaria			✔*	✔*		✔
3	Lithuania			✔	✔		✔
4	Moldova			✔	✔		✔
5	Montenegro			✔*	✔*		✔
6	Romania			✔*	✔*		✔
7	Serbia (draft)			✔*	✔*		✔
8	Switzerland			✔*	✔*		✔
9	Turkey			✔*	✔*		✔
10	Czech Republic			✔	✔*	✔	✔
11	Monaco			✔*	✔*	✔	✔
12	Hungary	✔	✔	✔			✔
13	Belgium				✔*	✔
14	Poland				✔	✔

324b. Choice-of-Law Rules for Cross-Border Torts in General

The pro-plaintiff bend of the statutory rules listed above is also present in other rules that apply to cross-border torts in general. Following the favor laesi principle, many recent codifications directly authorize the application of the law of either the state of conduct or the state of injury, whichever favors the victim. They do so by either choosing the more favorable of the two laws or allowing the victim to choose between them. Specifically, as documented elsewhere[64]:

(1) Ten codifications contain an express rule applicable to all cross-border torts, which instructs the court to apply the law that is more favorable to the victim.

(2) Nine codifications directly authorize the victim to choose between these laws.

(3) Eight codifications allow but do not require the court to apply the more favorable law.

(4) Twenty-five other codifications, including Rome II, which is applicable in twenty-six EU countries, contain express favor laesi rules applicable only to certain cross-border torts, such as environmental torts or products liability.

As the above list indicates, the choice of a pro-plaintiff law in cross-border torts (regardless of who makes the choice and regardless of whether it is based on the favor laesi principle) is no longer a novel or leftist idea that must be defended. The only remaining issues that require debate are the exact modalities and limitations of this principle.

c. Rome II

For reasons well known in Europe, Rome II expressly excluded from its scope non-contractual obligations arising out of “violations of privacy and rights relating to personality, including defamation”[65]. The exclusion was thought necessary when it became clear that the opposing views on this subject were too strongly held to allow a reasonable compromise. Media organizations strongly opposed the choice-of-law rule proposed in the Commission’s preliminary draft, which used the victim’s habitual residence as the primary connecting factor. In response, the Commission changed the connecting factor to “the place in which the damage took place”, subject to a “fundamental rights” exception, but this change did not reduce the publishers’ opposition.

In 2012, the Parliament adopted a Resolution requesting the Commission to submit a proposal that would add to Rome II a choice-of-law rule that would apply the law of the country in which “the most significant element or elements of the loss or damage occur or are likely to occur”[66]. That country “shall be deemed to 325be” the country “to which the publication or broadcasting service is principally directed” as determined by “the language of the publication or broadcast or by sales or audience size in a given country”[67]. The proposal provided two exceptions for defendants. First, if the defendant could not reasonably have foreseen the “substantial consequences of his or her act occurring in the [aforementioned] country”, then the law of the defendant’s home state should govern[68]. Second, if the country to which the publication is “principally directed” is “not apparent”, then the law of the country in which the “editorial control is exercised” should govern[69].

As far as it can be ascertained, the Commission has not taken any action on this proposal. Thus, for the time being, each EU Member State applies its own choice-of-law rules to multistate defamation cases.

II. De Lege Ferenda: The IDI Resolution

After describing the current state of affairs, the natural question is what can and should be done about the existing problems. This part discusses one set of possible answers. They are found in a Resolution adopted by the Institut de Droit International (IDI) at its 79th biennial session, held at The Hague, in 2019. The Resolution is entitled “Injuries to Rights of Personality Through the Use of the Internet: Jurisdiction, Applicable Law and Recognition of Foreign Judgments”[70]. It consists of nine detailed articles accompanied by extensive commentary[71]. The Institut was founded in 1873 in Ghent, Belgium, with the goal of “promot[ing] the progress of international law” –both public and private– by, inter alia, “striving to formulate the general principles of the subject, in such a way as to correspond to the legal conscience of the civilized world”[72]. In a small way, this Resolution aspires to fulfill this role.

3261. Striving for a Balance

The Resolution seeks to strike a balance among the different priorities that various legal systems assign to the values implicated in conflicts involving infringement of personality rights, such as freedom of expression, on the one hand, and protection of reputation and privacy, on the other. At the same time, the Resolution aims to craft a rule-system that is efficient and easy to apply.

The quest for balance includes treating as equally as possible and appropriate the two parties to the dispute, namely the aggrieved person (hereinafter the plaintiff) and the person whose conduct caused or may cause the injury (hereinafter the defendant). The balance consists of several elements, including the following pertaining to jurisdiction, applicable law, and available remedies. The Resolution:

(1) Authorizes four jurisdictional bases, from which the plaintiff can choose one: Two of those bases are affiliated with the defendant –the defendant’s “home state” and the state of the defendant’s “critical conduct” [Art. 5.1(a)-(b)]. The other two bases are affiliated with the plaintiff –the state in which “the most extensive injurious effects” occurred, and the plaintiff’s “home state” and place of injury [Art. 5.1(c)-(d)];

(2) Limits the plaintiff to a single lawsuit in one of the above states, but allows redress for the injuries the plaintiff has sustained or may sustain in all states (the “holistic” principle) (Art. 3);

(3) Provides an escape clause through which defendants may avoid jurisdiction when the plaintiff sues in a plaintiff-affiliated state (Art. 5.2); and

(4) Mandates the application of the internal law of the state in which the plaintiff filed the action (hereinafter referred to as the “forum state”) but, when that state is affiliated only with the plaintiff, it provides an option for the application of the law of another state under narrowly defined circumstances explained below (Art. 7.3-4).

2. Aiming for Simplicity and Efficiency

The Resolution seeks simplicity and efficiency by, inter alia:

(1) Preventing parallel or subsequent litigation once the plaintiff files the initial lawsuit (Art. 3.2);

(2) Rejecting the “mosaic principle” and adopting the “holistic principle”, thus reducing the possibility of conflicting judgments (Art. 3.1);

(3) Providing that, in all cases, the internal law of the forum state (the lex fori) will be the default law (Art. 7), thus obviating the need for a laborious and often unpredictable choice-of-law analysis;

(4) Authorizing the application of non-forum law only in narrowly defined circumstances and placing the burden of persuasion (as well as the burden of proving the content of that law) on the litigant who formally requests it (Art. 7.3-4); and

(5) Defining the conditions for enforcing choice-of-court and choice-of-law agreements, which can obviate the difficulties of the jurisdictional and choice-of-law inquiries (Arts. 6, 8).

3273. Jurisdiction

The Resolution adopts four jurisdictional bases, two of which are affiliated with the defendant and two of which are affiliated with the plaintiff. The defendant-affiliated bases are: (1) the “home state” of the defendant, and (2) the state in which the defendant’s “critical conduct” occurred. If the plaintiff sues in either of these two states, the defendant may not avoid jurisdiction, and the applicable law is the internal law of the forum state[73].

The plaintiff-affiliated bases are: (1) the state in which “the most extensive injurious effects” occurred or may occur; and (2) the home state of the person who suffered or may suffer an injury, if the posted material was accessible in that state or that person suffered injury there[74]. If the plaintiff sues in either of these two states, the defendant may avoid jurisdiction by satisfying the requirements of an escape clause explained later.

a. Suit in a state affiliated with the defendant

(1) The defendant’s home state. The first state that has jurisdiction under this Resolution is the defendant’s “home state”. This is defined as the state of domicile or habitual residence for natural persons, and the state of the statutory seat, principal place of business, incorporation or formation for legal persons[75]. This jurisdictional grant is uncontroversial because all legal systems subscribe to the principle that the defendant’s home state is an appropriate forum to adjudicate all claims against the defendant, including claims that are otherwise unrelated to that state (i.e., “general jurisdiction”).

(2) State of the defendant’s critical conduct. The second state that has jurisdiction under this Resolution is the state in which the defendant’s “critical conduct” occurred[76]. The Resolution does not –because it should not– define a priori what qualifies as “critical conduct”, who committed it, and in which state it was committed. These are factual questions, the answer to which will depend on the circumstances. The Resolution provides that “critical conduct” denotes, “as may be appropriate, the authorship, uploading, hosting or dissemination of the posted material, or any other act or omission, whichever is the principal cause of the injury”[77], and that the court should resolve these factual questions under the standards of the internal law of 328the forum[78]. Specifically, after evaluating all the facts, the court will determine (a) which of the above acts –or any other acts– was the principal cause of the injury, (b) where that act was committed, (c) who committed it, and (d) if more than one person committed it, what were the percentages of each person’s fault[79]. Ordinarily, the state of the “critical conduct” will have a stable and non-fortuitous connection and, in many cases, it will correspond to what the Shevill court called the place of the defendant’s “establishment.”

(3) No escape. Precisely because the place of the defendant’s home state and the place of the defendant’s critical conduct are universally accepted bases of jurisdiction, the Resolution does not provide defendants with a means of escaping the court’s jurisdiction. Thus, if the plaintiff sues in either of these states then, in the absence of a valid exclusive choice-of-court agreement to the contrary, the court may not refuse to exercise its jurisdiction by invoking the doctrine of forum non conveniens[80]. The reason for disallowing this doctrine is to preserve the delicate equilibrium that the Resolution establishes between the rights of plaintiffs and defendants, on the one hand, and the close interdependence of jurisdiction and applicable law, on the other hand.

b. Suit in a state affiliated with the plaintiff

(1) State of the most extensive injurious effects. The third state that has jurisdiction under the Resolution is the state in which the “most extensive injurious effects occurred or may occur”[81]. Where most of those effects occurred is a factual question, which the court will answer under the standards of the internal law of the forum[82]. By way of example, in a case such as Haaretz.com v. Goldhar (supra), in which the plaintiff suffered injury in both Ontario, his home state, and Israel, where he owned and managed that country’s most popular football team, a court could conclude that Israel was the state of the most extensive injurious effects. The defamatory article was about his management of the Israeli team rather than his unrelated Ontario business, and 95.5 percent of the people who had read the article lived in Israel. The same can be said about the Bolagsupplysningen case (supra), in which the Estonian plaintiff company carried out most of its business activity in Sweden and the defamatory article affected that activity. The CJEU held that Sweden was the plaintiff’s “center of interest” and thus Sweden would have jurisdiction under the eDate holding if the plaintiff had sued there. Under this Resolution, Sweden would qualify as the state of the most extensive injurious effects 329on the company’s business reputation, and as such it would have jurisdiction under Article 5.1(c).

This jurisdictional basis differs in two respects from another basis authorized by the Brussels I Regulation as interpreted in the Shevill case and then applied in Gtflix Tv v. DR. Under Shevill and Gtflix, a state in which the plaintiff suffers some injury has jurisdiction over the defendant, even in the absence of other connections, although it may provide a remedy only for that injury[83]. By contrast, under this Resolution, a state has jurisdiction only (a) if it is the place of the most extensive injuries, and (b) if the defendant cannot successfully invoke the jurisdictional escape provided in Article 5.2, which is discussed below. If both conditions are met, the court may provide a remedy for all of the plaintiff’s injuries, including those that occurred in other states.

(2) Plaintiff’s home state and injury. The fourth state that has jurisdiction under the Resolution is the plaintiff’s “home state,” provided that the posted material was accessible in that state or the plaintiff suffered injury there[84]. In many cases, this state will coincide with the plaintiff’s “center of interest” as defined in the eDate case, in which the CJEU stated that the plaintiff’s center of interest “corresponds in general to [the plaintiff’s] habitual residence”[85]. If so, then under both the eDate case and this Resolution, the court may provide a remedy for all of the plaintiff’s injuries, including those that occurred in other states. The difference lies in the fact that, unlike the eDate regime, this Resolution provides a jurisdictional escape clause (discussed below), which may enable some defendants to avoid jurisdiction[86].

c. Jurisdictional escape

If the plaintiff sues either in the state in which “the most extensive injurious effects” occurred or in the plaintiff’s “home state,” the defendant may avoid jurisdiction 330by satisfying the requirements of a two-prong escape clause provided in § 2 of Article 5. The defendant may avoid jurisdiction by demonstrating:

(a) that the defendant did not derive any pecuniary or other significant benefit from the accessibility of the material in the forum state; and

(b) that a reasonable person could not have foreseen that its conduct would cause any injury in that state.

Because the two prongs are conjunctively joined, the defendant must satisfy both of them in order to avoid jurisdiction. Thus, defendants who derive benefits from the forum state such as advertising revenue, or operators of fee-paying subscription sites, will not be able to avoid jurisdiction, even if they could satisfy the second prong of the escape. For example, in Keeton v. Hustler, the defendant publisher could not avoid jurisdiction in New Hampshire because it derived substantial revenues from the sale of its magazine in that state. In Calder v. Jones, the writer and editor defendants did not derive pecuniary benefits from the California market and thus they would be eligible for the second prong of the escape. However, they could not satisfy the requirements of that prong because, having specifically “aimed” their activities at California, they could not claim lack of foreseeability.

In summary, by providing defendants with an escape in actions filed in a plaintiff-affiliated state, the Resolution deviates from both jurisdictional regimes discussed above. It deviates from the Brussels I regime, as well as from other systems that do not allow any escape in these cases[87]. In countries such as Canada or Australia, this escape will approximate the results that can be obtained through the doctrine of forum non conveniens. The Resolution also deviates from the US jurisdictional regime because, in some cases, the escape will not protect the defendant from being subject to jurisdiction in a state with which the defendant does not have additional contacts (“purposeful availment”).

d. Choice-of-court agreements

Article 6 of the Resolution defines the conditions for enforcing choice-of-court agreements. It distinguishes between pre- and post-dispute agreements and subjects the former to more stringent requirements than the latter[88]. The Article also distinguishes between agreements conferring exclusive and non-exclusive jurisdiction. An agreement conferring exclusive jurisdiction prevails over the jurisdictional rules of Article 5 and thus an action filed under such an agreement precludes an 331action filed under Article 5. By contrast, an action filed under a non-exclusive agreement does not have such an effect, unless that action is filed first, and the defendant does not object.

4. One-Lawsuit One-Remedy: The “Holistic” Principle

The plaintiff’s choice of a forum is “subject to Article 3”[89], which establishes the one-lawsuit one-remedy principle. Article 3 provides that, once the plaintiff files an action in one of the states that have jurisdiction under Article 5 or under a choice-of-court agreement valid under Article 6, neither the plaintiff nor the defendant or their privies or successors may file another action arising from the same conduct in another state. Other states must refrain from entertaining such an action, subject to some exceptions specified in Article 3.2.

As a corollary to this one-lawsuit limitation, Article 3 adopts the one-remedy or “holistic” principle (the opposite of the “mosaic principle” adopted in Shevill), which allows the court to provide a remedy for all of the plaintiff’s injuries, including those that occurred or may occur in other states. The remedy may consist of any redress available under the applicable law. This includes, as may be appropriate, compensation or damages, as well as preventive or corrective action, such as ordering the removal or correction of the posted material, posting an apology, or granting the right to reply. However, it should be noted that “one remedy” does not necessarily mean a global remedy. This is important when it comes to preventive measures, such as take down orders. While the Resolution does not prohibit measures that have an extraterritorial effect, it does not mandate them. Courts are expected to exercise appropriate circumspection. They need not be reminded that the enforcement of their judgments in other states depends on the comity and the public policy of those states.

5. Applicable law

As noted earlier, one of the Resolution’s goals is to provide a rule-system that is efficient and easy to apply. The two principal features of the Resolution’s choice-of-law regime are designed to serve this goal. At the same time, the Resolution does not neglect the goal of treating plaintiffs and defendants as equally as possible and appropriate.

The first feature is that, with only two exceptions involving rather infrequent situations[90], the lex fori is the default law. Thus, the Resolution adopts a regime that 332has significant advantages in terms of administrability and efficiency. The parties will not have to litigate the choice-of-law question, and the court will not need to undertake a choice-of-law inquiry, which is often laborious and unpredictable. Instead, the court will apply its own law, with which it is familiar. Cross-border internet conflicts are complex enough to begin with. If, on top of that complexity, we impose on courts the task of conducting a multifactor choice-of-law analysis, their job would be rendered even more difficult.

The second feature of the Resolution is that it places on the parties, rather than on the court, the burden of invoking and meeting the requirements of the two exceptions from the application of the lex fori. The default rules and their exceptions are discussed below.

a. Suit in a defendant-affiliated state

(1) State of the critical conduct. If, as allowed by Article 5.1(a), the plaintiff sues in the state in which the defendant engaged in the critical conduct that caused the plaintiff’s injuries, the applicable law is the internal law of the forum state (Art. 7.2). The application of forum law in this situation offers significant advantages in terms of simplicity and administrability because the court applies its own law, with which it is familiar, and does not have to engage in a laborious choice-of-law analysis.

At the same time, the application of this law is not unfair to defendants. Indeed, defendants cannot be surprised by, and cannot legitimately complain against, the application of the law of the state in which they engaged in the critical conduct. This solution may favor plaintiffs in the sense that they will choose to sue in this state only if its procedural or substantive law is favorable, but this is hardly an unfair advantage. Redress from injury is not an advantage to begin with –it is simply reparation. There is nothing unfair about allowing a plaintiff who proves that their injuries were caused by the defendant’s conduct to recover under the law of the state where that conduct occurred.

(2) The defendant’s home state. If, as allowed by Article 5.1(b), the plaintiff sues in the defendant’s current home state, and that state was also the defendant’s home state at the time of the injury, the applicable law is again the internal law of the forum state (Art. 7.3). Again, the application of this law in this situation offers significant advantages in terms of simplicity and administrability without being unfair to the defendant. Indeed, defendants cannot be surprised by, and cannot legitimately complain against, the application of the law of their own home state. This solution may favor plaintiffs in the sense that they will choose to sue in this state only if its procedural or substantive law is favorable but, for reasons given earlier, this is hardly an unfair advantage.

333However, there are situations –rare as they may be –in which the defendant changes its home state between the time of the injury and the time of the filing of the action. In such a case, the application of the law of the forum (and new home state) may not be appropriate. The second sentence of paragraph 2 of Article 7 addresses this situation and frees the court from the obligation of applying the law of the forum. The sentence provides that the applicable law is the internal law of the state that, considering all the circumstances, has the “closest and most significant connection” with the parties and the dispute. Depending on the circumstances, that state may be any of the states mentioned in any of the five paragraphs of Article 7, or conceivably another state. This is one of the cases in which the court cannot avoid a choice-of-law analysis, but no other solution would seem appropriate for this situation.

b. Suit in a plaintiff-affiliated state

(1) State of the most extensive injurious effects. If, as allowed by Article 5.1(c), the plaintiff sues in the state in which the “most extensive injurious effects” occurred, and the defendant does not successfully invoke the jurisdictional escape provided in Article 5.2, then the applicable law will be the internal law of that state (Art. 7.3). This solution offers the same advantages in terms of simplicity and administrability referred to above. In some cases, this solution may be unfair to the defendant, such as when the defendant’s conduct is considered tortious in the forum state but not in the state of the critical conduct. However, this provision is consistent with the traditional lex loci damni rule. Moreover, the jurisdictional escape available to the defendant under Art. 5.2 mitigates that unfairness.

Paragraph 3 of Article 7 gives the plaintiff the option of requesting the application of the internal law of a state other than the forum, if the plaintiff proves that the defendant’s critical conduct occurred in that other state. The application of that law is subject to two requirements. The first is that this law must apply to all substantive issues between the parties. In other words, the plaintiff may not engage in dépeçage by “picking and choosing” only some provisions of that law. The second requirement is that, if the court so requests, the plaintiff must establish the content of the law of the state of conduct.

Obviously, the plaintiff will request the application of the law of the state of conduct only when that law favors the plaintiff. Thus, the availability of this option may appear unfair to defendants, not because they can legitimately complain against the application of the law of the state in which they acted (see above), but because plaintiffs will get both the procedural and other advantages of litigating in one state –their chosen forum– and the more favorable substantive law of another state –the state of conduct. Nevertheless, this option can be defended both in terms of the favor laesi principle and in terms of the interests of the state of critical conduct in policing conduct occurring within its territory. As noted earlier, at least half of the seventy-six PIL codifications enacted in the last fifty years would reach the same 334result by giving the plaintiff a choice between the laws of the states of conduct and injury, or by directing the court to choose the law that favors the plaintiff.

Between these two solutions, the one that gives the choice directly to the plaintiff is preferable because it promotes judicial economy and efficiency, without worsening the defendant’s substantive position, which remains the same regardless of who chooses the pro-plaintiff law. When the choice of law is assigned to the court, the court must answer the question of why one state’s law is more favorable than the other state’s law. Surprisingly, this is not always easy, and an erroneous answer is a ground for appeal. On the other hand, giving the choice to the plaintiff relieves the court from having to answer the above question. This is particularly helpful, not only when that answer is unclear, but also when one state’s law favors the plaintiff on some issues and the defendant on other issues. The plaintiff’s attorney will have to carefully weigh all of the pros and cons of exercising or not exercising the right to choose. If the attorney exercises that right, the choice must be –as Article 7 mandates– for “all claims and issues”, so as to avoid the possibility of an inappropriate dépeçage or “picking and choosing.” If the choice proves ill-advised, it will not be appealable, and the plaintiff’s attorney will be accountable for the consequences. In conclusion, the idea of giving the choice to one party is a smart, efficient, and cost-saving tool that helps conserve judicial resources.

(2) Plaintiff’s home state and injury. If, as allowed by Article 5.1(d), the plaintiff sues in the plaintiff’s home state where the plaintiff suffered injury and the defendant does not successfully invoke the jurisdictional escape provided in Article 5.2, then the applicable law is the internal law of the forum state (Art. 7.4). This solution offers the same advantages in terms of simplicity and administrability referred to above, in addition to providing plaintiffs with the convenience of litigating at home.

However, paragraph 4 of Article 7 counterbalances the plaintiff’s advantage by giving an option to the defendant. The defendant may avoid the application of the law of the forum state by: (1) proving that most of the injuries occurred in another state, (2) formally requesting the application of the law of that other state, and (3) if requested by the court, establishing the content of that law. These requirements are not always easy to meet but, when they are met, this option has the effect of balancing out the position of the two parties –the plaintiff keeps their choice of forum and the applicable procedural law, while the defendant chooses the applicable substantive law[91]. Of course, the defendant will exercise this option only when the requested law favors the defendant. However, besides being consistent with the traditional lex loci damni rule, this solution is not unduly unfair to the plaintiff, who will retain the advantage of litigating at home. Moreover, this result flows directly 335from the defendant’s choice, without being subject to litigation and appeal. The advantages in terms of judicial efficiency are clear.

c. Suit in another state designated in a choice-of-court agreement

Paragraph 5 of Article 7 addresses situations in which there is a valid choice-of-court agreement but not a valid choice-of-law agreement. If the choice-of-court agreement designates one of the states that have jurisdiction under Article 5 and the trial takes place in that state, then the applicable law is determined as provided in paragraphs 1-4 of Article 7 (discussed above), whichever is applicable.

However, if the choice-of-court agreement designates another state and the trial takes place in that state, then the applicable law shall be the law of the State which, considering all circumstances, has the “closest and most significant connection” with the parties and the dispute. That state may be any one of the states referred to in paragraphs 1-4 of Article 7, or another state. This is the second situation in which the court cannot avoid a choice-of-law analysis. However, this will be a rather rare occurrence because parties that have the foresight to enter into a choice-of-court agreement are likely to also enter into a choice-of-law agreement, thus obviating the need for a judicial choice-of-law analysis.

d. Choice-of-law agreement

Article 8 provides for choice-of-law agreements. It distinguishes between post-dispute agreements, which are unproblematic, and pre-dispute agreements, which are inherently problematic because the parties may be in an unequal position and unable to truly negotiate a balanced agreement. For this reason, pre-dispute agreements must satisfy the requirements specified in Article 8[92]. In any event, when the court is presented with a valid choice-of-law agreement of either category, the court must apply the law designated in the agreement “notwithstanding Article 7”[93].

III. Conclusion

To be sure, the term “conflicts on steroids” to describe the conflicts discussed in this presentation is hyperbolic—but not by much. These conflicts are virtually intractable, for all the reasons described in the first part of this presentation. The need for effective and balanced solutions is as obvious as is the difficulty in formulating them. The question is not only what these solutions should be but who should propose 336them. National lawmakers are certainly capable of coming up with solutions, but they are likely to be one-sided in an environment that cries out for evenhanded and balanced solutions. International lawmakers are ideally suited for multilateral and balanced solutions but, as everybody knows, the process of drafting, adopting, and eventually ratifying an international treaty can take years, if not decades.

In the meantime, however, academic organizations like the IDI can pave the ground for such multilateral and balanced solutions. They can find and formulate the middle ground between or among opposing national policies and philosophies, as well as between giant internet companies and consumers. It is hoped that this Resolution will fulfill this role. In the words of the IDI’s Secretary-General, Professor Marcelo Kohen:

“As a self-sustained learned society composed of academics, judges and practitioners acting in their individual capacity and elected by its members, the Institut has the advantage of not being subject to these pressures. It is therefore uniquely qualified to undertake projects that the political process of lawmaking leaves behind or addresses in ways that are not conducive to international consensus. This Resolution is a representative example of such a project. It tackles a difficult and politically sensitive topic and proposes creative, even-handed, and practical solutions that can pave the way for the development of an international consensus. In turn, such a consensus can make it easier for national or international lawmakers to embark on the process of formulating and adopting cooperative and mutually acceptable solutions”[94].

[1] Transcript of PowerPoint presentation at a Conference on “The internet and other emerging technologies within the EU and International legal order”, held in Greece, on May 13, 2022. The presentation draws from Symeonides, S. C., Cross-Border Infringement of Personality Rights via the Internet (Brill-Nijhoff, 2021) (hereinafter Symeonides, Cross-Border Infringement), where the readers can find extensive documentation and discussion of this topic.

[2] Testimony of Brad Smith, President and Chief Legal Officer, Microsoft Corporation, before [US] House Judiciary Committee Hearing on International Conflicts of Law Concerning Cross-Border Data Flow and Law Enforcement Requests, on February 25, 2016, 2.

[3] For documentation and discussion of these factors, see Symeonides, Cross-Border Infringement, 23-129.

[4] eDate Advertising GmbH v. X and Martinez v. MGN Limited, Cases C-509/09 and C-161/10, ECLI:EU:C:2011:685, [2011] ECR I-10269, § 45.

[5] See LICRA et UEJF c. Yahoo! Inc. et Yahoo France, Tribunal de Grande Instance de Paris, Ordonnance de Référé, rendue le 22 mai 2000, Nos. 00/05308, et 00/05309.

[6] See Yahoo!, Inc. v. La Ligue Contre Le Racisme et L’Antisemitisme, 145 F.Supp.2d 1168 (N.D.Cal.2001)· Yahoo!, Inc. v. La Ligue Contre Le Racisme et L’Antisemitisme, 169 F.Supp.2d 1181(N.D.Cal.2001)· Yahoo! Inc. v. La Ligue Contre Le Racisme et L’Antisemitisme, 379 F.3d 1120 (9th Cir. 2004)· Yahoo! Inc. v. La Ligue Contre Le Racisme et L’Antisemitisme, 433 F.3d 1199 (9th Cir.2006).

[7] See Google Spain SL and Google Inc. v. Agencia Española de Protección de Datos (AEPD) and Mario Costeja González, (Google Spain Case), Case C-131/12, ECLI:EU:C:2014:317.

[8] See Commission Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the Protection of Natural Persons with Regard to the Processing of Personal Data and on the Free Movement of Such Data, and Repealing Directive 95/46/EC, Art. 17, 2016 O.J. (L 119) 1.

[9] See Symeonides, Cross-Border Infringement, 40-43.

[10] See, e.g., Google v Commission nationale de l’informatique et des libertés (CNIL), Case C-507/17, ECLI:EU:C:2019:772, § 63.

[11] See Symeonides, Cross-Border Infringement, 29-33.

[12] U.S. Const. Amd. XIV.

[13] See Silberman, L. J., Goodyear and Nicastro: Observations from a Transnational and Comparative Perspective, 63 S.C. L. Rev. 591, 600 (2012) (“One key aspect of the constitutional due process jurisdiction jurisprudence as developed in the United States… is the emphasis on the connection between the forum and the defendant. … [I] t is the defendant’s relationship with the forum that is the ‘touchstone’ of the US constitutional analysis”).

[14] International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).

[15] J. McIntyre Machinery Ltd. v. Nicastro, 564 U.S. 873, 881 (2011).

[16] 564 U.S. 873 (2011).

[17] 571 U.S. 277 (2014).

[18] 465 U.S. 770 (1984).

[19] The “single publication rule” provides: “As to any single publication, (a) only one action for damages can be maintained; (b) all damages suffered in all jurisdictions can be recovered in the one action; and (c) a judgment for or against the plaintiff upon the merits of any action for damages bars any other action for damages between the same parties in all jurisdictions”. Restatement (Second) of Torts § 577A(4) (1977).

[20] Keeton, 465 U.S. at 781. See also id. (“There is no unfairness in calling [defendant] to answer for the contents of [a] publication wherever a substantial number of copies are regularly sold and distributed [in the forum state]”).

[21] 465 U.S. 783 (1984).

[22] Id. at 789 (emphasis added).

[23] Id. at 789-90.

[24] Id. at 790 (internal quotation marks omitted).

[25] [2002] HCA 56.

[26] Id. at § 21.

[27] Id. at § 22.

[28] Id. at § 24.

[29] Id. at § 47. The Court did not decide the merits of the case, which was eventually settled out of court.

[30] Id. at § 48. Finally, the Court acknowledged that other cases in which a plaintiff sues for reputational injuries caused by publications in several states present “more difficult questions,” which would warrant adjustments to the relevant rules of jurisdiction and choice of law. Id. at § 49.

[31] 2018 SCC 28.

[32] Haaretz, at § 3.

[33] See Symeonides, Cross-border Infringement, 47-50, 71-72.

[34] Defamation Act 2013, Chapter 26 § 9(2).

[35] See Art. 5.2 of the Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) (hereinafter Brussels I).

[36] See id. Art. 6.2.

[37] See id. Arts. 6.1, 36, 39, 45.

[38] See, e.g., Greek Cod. Civ. Proc. Art. 40.

[39] See Brussels I, Art. 11.1(b) (authorizing jurisdiction in the domicile of the policy holder, the insured, or the beneficiary)· Art. 15(2) (allowing pre-dispute forum selection clauses only if they favor the insured).

[40] See Brussels I, Art. 18.1 (authorizing jurisdiction in the domicile of the consumer “regardless of the domicile of the other party”)· Art. 19(2) (allowing pre-dispute forum selection clauses only if they favor the consumer).

[41] See Brussels I, Art. 23 (allowing pre-dispute forum selection clauses only if they favor the employee).

[42] See Fiona Shevill and Others v. Presse Alliance SA, Case C-68/93, 1995 E.C.R. 1-415.

[43] See Handelskwekerij G. J. Bier BV v. Mines de potasse d’Alsace S.A., Case 21-76, ECLI:EU:C:1976:166, [1976] ECR 1735.

[44] Shevill, at § 24. The Court also noted that this place “will generally coincide” with the publisher’s domicile, which has general jurisdiction under Article 2 of the Convention. Id. at § 26.

[45] Id. at § 25.

[46] Id. at § 30.

[47] Cases C-509/09 and C-161/10, ECLI:EU:C:2011:685, [2011] ECR I-10269.

[48] Brussels I Regulation, Art. 7(2)(a) [reproducing Article 5(3) of the Brussels Convention].

[49] eDate, § 42.

[50] Id. at § 48.

[51] Id.. (emphasis added).

[52] Id. at § 49.

[53] Id. at § 50.

[54] See id. at §§ 51-52.

[55] Id. at § 52.

[56] Id..

[57] Case C-194/16, ECLI:EU:C:2017:766.

[58] See id. at § 42.

[59] See id. at § 44.

[60] Id. at § 48.

[61] Case C-251/20, ECLI:EU:C:2021:1036.

[62] All of these rules, as well as all the other rules mentioned in this post, are discussed in Symeonides, Cross-Border Infringement, 106-107. The Australian defamation Act applies only to intra-Australian interstate conflicts. The Defamation Acts of England and Wales (2013) and Ireland (2009) do not contain choice-of-law rules.

[63] The abbreviations at the top of the last five columns are as follows: the victim’s “center of interest”, the victim’s domicile (or habitual residence), the state of injury (“I”), the state of conduct (“C”), and the defendant’s home state (domicile, habitual residence, or principal place of business). The asterisk indicates that the application of the law of the state listed in that column is subject to foreseeability proviso.

[64] See Symeonides, S. C., Private International Law: Idealism, Pragmatism, Eclecticism 203-208 (The Hague Academy of International Law Monographs, 2021).

[65] Rome II, Art. 2(g).

[66] European Parliament Resolution of 10 May 2012 with recommendations to the Commission on the amendment of Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations (Rome II) [2009/2170(INI)], Appendix, proposed Article 5a.1.

[67] Id. Art. 5a.3.

[68] Id.. That law should also apply to the “right of reply.” Id..

[69] Id..

[70] The Resolution is posted at the Institut’s website at [https://www.idi-iil.org/en/sessions/la-haye-2019/?post_type=publication]. It is also reproduced and extensively discussed in Symeonides, Cross-Border Infringement, at 148, et seq. Article 1.2 of the Resolution defines “rights of personality” as including “a person’s reputation, dignity, honor, name, image, and privacy, as well as similar rights that, regardless of how they are called, are protected by the applicable law”.

[71] I had the honor of drafting the Resolution, with the assistance of Professor Erik Jayme of Heidelberg as co-rapporteur, and the Institut’s Eighth Commission consisting of Professors Bernard Audit, Jürgen Basedow, Michael Bogdan, Léna Gannagé, Hélène Gaudemet-Tallon, Paul Lagarde, Alain Pellet, Emmanuel Roucounas, and Walter Rudolf. I had sole responsibility for the accompanying commentary.

[72] Institut de droit international, Statute, Art. 1.

[73] IDI Resolution Art. 7.1-2. However, if the plaintiff sues in the defendant’s current “home state” which was not the defendant’s home state at the time of the injury, the applicable law is the internal law of the state that, considering all the circumstances, has the closest and most significant connection. Id. Art. 7.2.

[74] IDI Resolution, Art. 5.1(c) and (d).

[75] See Art. 1.11(a)-(b).

[76] Art. 5.1(a).

[77] Art. 1.8 (emphasis added).

[78] See Art. 4(a).

[79] Art. 4(a).

[80] See Art. 5.3.

[81] Art. 5.1(c).

[82] Art. 4(c).

[83] The same difference exists with the jurisdictional bases of the Victoria court in Gutnick, and similar bases available in England and Wales before the Defamation Act of 2013, as well as other countries that follow the mosaic principle.

[84] Subparagraphs (a) and (b) of Article 1.11 define “home state” for both defendants and plaintiffs as the state of domicile or habitual residence for natural persons and the state of the statutory seat, principal place of business, incorporation or formation for legal persons. In addition, subparagraph (c) provides that, if a person suffers injury to its professional or business interest, then the state in which that person has its principal professional or business establishment is considered that person’s home state.

[85] eDate Advertising GmbH v. X and Martinez v. MGN Limited, at § 49. The Court also noted that, depending on the circumstances, the plaintiff’s center of interest may be in the state where the victim “pursu[es]… a professional activity”. Id.. The Resolution covers this possibility through Article 1.11(c), which refers to the plaintiff’s professional or business home. See supra, previous note.

[86] Even if the plaintiff’s home state does not qualify as the plaintiff’s center of interests, there is still good reason to allow jurisdiction there, as long as the plaintiff suffered injury there. However, because the Resolution is also concerned with fairness for the defendant, it provides defendants with the jurisdictional escape discussed below.

[87] It also deviates from these regimes by not authorizing jurisdiction in cases such as Gtflix Tv v. DR, (supra), in which the forum’s only connection is the occurrence of some injury.

[88] Article 6.2 provides that a pre-dispute choice-of-court agreement is enforceable if: “(a) it was freely negotiated, expressed in writing and covers non-contractual obligations; (b) all parties engaged in commercial or professional activity and the agreement was part of that activity; and (c) it is otherwise valid under the law applicable under the private international law rules of the forum State”.

[89] Art. 5.1.

[90] The two exceptions apply to cases in which the trial takes place (1) in a state that is the defendant’s home state at the time of the trial but not at the time of the injury, or (2) in a state designated in a valid choice-of-court agreement which is not one of the states that would have jurisdiction under Article 5. In both of those cases, the applicable law is that of the state that has the “closest and most significant connection” to the parties and the dispute. See Art. 7.3, second sentence; Art. 7.5, second sentence. However, as explained below, both of these cases are rather infrequent.

[91] That law “shall govern all substantive issues” between the parties, i.e., no dépeçage. Art. 7.4.

[92] Article 8.2 provides that a pre-dispute choice-of-law agreement is enforceable if: “(a) it was freely negotiated, expressed in writing and clearly covers non-contractual obligations; (b) all parties engaged in commercial or professional activity and the agreement was part of that activity; and (c) the application of the chosen law is not manifestly incompatible with the public policy (ordre public) of the forum State or the State whose law would be applicable under Article 7”.

[93] Art. 8.1.

[94] Kohen, M., in Foreword to Symeonides, Cross-Border Infringement, ix-x.