Article 6 of the Commission Proposal: Violation of Privacy - Defamation by Mass Media

Abstract

The Commission?s Proposal for a Regulation on the Law Applicable to Non-Contractual Obligations (Rome-II) supplies a special conflicts rules for media torts and other invasions of privacy rights. The purpose of Article 6 of the Commission Proposal is to coordinate choice of law and forum selection. This objective deserves support but is difficult to specify and to translate into choice of law rules. Article 5 No. 3 Brussels-I Regulation establishes jurisdiction not only at the place where the injury was sustained, but alternatively at the place where the wrongful act occurred. Pursuant to the holding of the Shevill judgment of the European Court of Justice the court sitting at the place of the wrongful act has jurisdiction to award damages in full, for total harm, whereas the courts at the several places of injury may allow remedies only with respect to the harm suffered within the confines of their own jurisdiction. In contrast to the explicit intentions of the Commission, its proposal on conflicts law does not provide for a similar rule, i.e. it does not supplement the jurisdictional principles of the Shevill judgment with similar choice of law rules. The same failure, however, also affects the proposal of the European Parliament, laid down in the report of Diana Wallis, prepared for The Parliament Committee on Legal Affairs and the Internal Market. The prerogative of ?Gleichlauf? requires choice of law rules which allow the courts seized either at the place of publication or at the place of injury to apply their own law, i.e. the lex fori.