Opinion of the EFJ on the 'Rome II' Regulation on the law applicable to non contractual obligations

A sound understanding of the basis and status of legislation and court decisions concerning media and press freedom is essential for journalists in order for them to exercise their profession in the most efficient way. The EFJ therefore welcomes the work that has been done by the European Commission and the initiative for a Regulation on the law applicable to non-contractual obligations with the aim of providing legal certainty where cross border activities are concerned.

Citizens have the right to receive reliable and accurate information that is not in breach of national laws governing free expression. Existing rules and standards providing for freedom of expression and opinion must apply to all information services made available for public consumption.

Each Member State has its own traditional approach to press freedom in their press laws. It is a legal right, which evolves nationally in harmony with the moral, legal, historical, religious and political values and traditions of each Member State. Journalists follow their national press laws and regulation closely in their work. They are expected to know and apply these rules.

Journalists must be able to tell their stories in the most independent way. According to Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedom (ECHR) freedom of expression shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

In particular, the EFJ acknowledges the importance to protect freedom of expression in case of defamation and other cases alleging violations of law arising from media activities. It should not be possible to execute judgements against the media or media members in such cases if the judgements are based on laws that are contrary to the fundamental principles of freedom of expression and information as expressed in Article 10 of the European Human Rights Convention.

The EFJ agrees that the same rules must apply for offline and online media in order to avoid legal uncertainties and disparities of treatment.

The EFJ also agrees that current international legislation does not provide adequate protection against forum shopping or against claimants being able to instigate a string of lawsuits on the same subject matter in several countries and that current legislation therefore does not afford the legal certainty that is desirable for all parties.

However, this is also the case with the proposed Article 6.1 of the Rome II draft. If this proposal is adopted, legislation will continue to hold the potential of creating impossible working conditions for journalists. The article determines the law applicable to defamation in cross-border cases by choosing the law of the country of the “alleged damage”(cf. the proposed Article 3) except where the law designated by article 3 would be contrary to the fundamental principles of the forum as regards freedom of expression and information. In that situation, the law of the forum would apply. The adoption of this general principle will -regardless of the modifications contained in the proposal- undermine freedom of the press and contribute to legal confusion and professional uncertainty. The proposed Article 6.1 will increase “self-censorship” thus undermining the public’s right to know.

If the country of destination or “alleged damage to the victim” principle becomes the chosen solution the EFJ believes that it will harm the free flow of information and journalists will hesitate to write about public figures from other countries. Doing so would require journalists to analyze the press laws of the country or countries in which the public figure in question lives or is likely to suffer damages prior to publication.

It may be necessary – given the difficulties to have a thorough knowledge of the different legal traditions and case law in the European Union – to employ legal advisers with expertise in a number of national jurisdictions. This constitutes an intolerably practical and financial burden imposed upon the media and the journalist. The threat of being sued under foreign press laws creates an insecure legal framework for journalists and their employers, which is likely to lead to self-censorship.

The EJF therefore believes that in cases of defamation the ideal solution is to introduce the country of origin principle in article 6.1 of the draft proposal. The country of origin will normally coincide with the main distribution area and will introduce the legal foreseeability that is necessary for journalists to conduct their duties in the most fair and equitable manner.

The EFJ understands that there are reservations regarding the country of origin principle, as this might lead to adopting lowest possible standards. In this case, however, this risk is not present.

The risk of serious damage to freedom of the press due to uncertainty regarding choice of law in cases of defamation and other cases alleging violations of law arising from media is very real and very much greater than the risk of media misuse of a country of origin rule.

The adoption of the country of origin principle in cases of defamation and other cases alleging violations of law arising from media will ensure legal certainties, freedom of the media and the proper functioning of the internal market.

However, the EFJ is ready to consider and further discuss other solutions. Ms Diana Wallis, the rapporteur of the European Parliament, suggested in amendment 22 of her draft report of 11 November 2004, a sort of ‘country of main distribution’ solution, which would imply taking into account “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”.

The French Government made a similar proposal and the EFJ is ready to consider this proposal as well.

Intellectual Property Rights

The EFJ welcomes the introduction of a specific article on infringement of intellectual property rights. We agree that the rule should be in accordance with article 5.2 of the Berne Convention which reads as follows: “the extent of protection as well as the means of redress afforded to the author to protect his rights shall be governed exclusively by the laws of the countries where protection is claimed.” Article 8.1 of the Regulation is almost identical but uses the word “sought” instead of “claimed”.

Even such a small variance in language can give room for speculation and, therefore, the EFJ would prefer Article 8.1 to use exactly the same wording as the Berne Convention.