Rome II: Applicable law and freedom of expression

By EDRi · June 29, 2005

According to the European Federation of Journalists (EFJ), severe threats
to freedom of expression and freedom of the press may occur if the
European Parliament adopts Article 6 of the draft Rome II Treaty as
modified by the EP Legal Affairs Committee on 21 June 2005. The rapporteur
was Diana Wallis, ALDE UK MEP. The EP Plenary vote in the first reading is
scheduled for 6 July 2005. After the final adoption in the co-decision
procedure, Rome II will determine the law applicable to non-contractual
obligations, thus regulating judicial co-operation in civil and commercial

But the Rome II draft also regulates the law applicable in case of
violations of privacy and rights relating to the personality (Article 6,
which applies e.g. in defamation cases). This article provides for
exceptions to the general rule set by Article 3 that the applicable law
is the law of the country where the damage arises. Taking into account the
necessary protection of freedom of expression and freedom of the press,
the initial proposal by the European Commission provided for safeguards in
Article 6.1. “Any forum chosen by the claimant may discard the applicable
law following the general rule, if the application of that law would be
contrary to the fundamental principles of the law of the forum, as regards
freedom of expression and of information.” Diana Wallis gives a practical
example of how this would work:

Suppose a German minister feels libeled by a UK newspaper circulated not
only in the UK, but also in France and Germany. Under Rome II the Minister
can either sue in the UK courts, in which case he can claim damages for
the whole of the damage wherever incurred or, for instance, in the German
courts but only for the damage incurred in that State (i.e. in respect of
the amount of newspapers sold in Germany). If the Minister sues in the UK
and the application of German law would be contrary to the fundamental
principles of UK law relating to freedom of the press/freedom of
expression, the British court would set aside the application of those
laws and apply national law. If the Minister sues in Germany, German law
would apply but only as respects the losses arising in Germany.

This particular provision was severely weakened by the EP Legal Affairs
Committee, thus threatening freedom of expression and freedom of the
press. The amended version of Article 6.1 re-establishes the general rule,
with the sole condition that “a manifestly closer connection with a
particular country may be deemed to exist having regard to factors such as
the country to which a publication or broadcast is principally directed or
the language of the publication or broadcast or sales or audience size in
a given country as a proportion of total sales or audience size or a
combination of these factors”. Moreover, this provision shall now “apply
mutatis mutandis to Internet publications”.

As argued by the EFJ, if adopted, this amended provision will create
judicial insecurity, promote judicial forum-shopping, and, in the end,
lead to self-censorship by the media. This chilling effect would be
extended to any publication, especially on the Internet.

In addition, as noted by the European Economic and Social Committee in its
opinion, it is surprising Rome II deals with personality rights. According
to this institution, this could be explained by the fact that such issues
are more and more being brought into the sphere of torts. This explanation
is on the contrary rather more preoccupating, in a context where freedom
of expression and freedom of information, as well as freedom of the press,
are more and more reduced, with for example stronger jurisprudence against
the principle of protection of sources.

Finally, the Rome II discussion marks a trend in the European Union to
deal with judicial co-operation instruments, rather than focusing on
approximation of substantive laws. Even though the latter is indeed a
long and difficult process, the former, currently pursued in civil as well
as criminal matters, is likely to threaten fundamental rights and

European Journalists Call on Brussels to Drop New Legal Threat to Media

EP Legislative Observatory Rome II file

(Contribution by Meryem Marzouki, EDRI-member IRIS)