Rome II- joint letter to European Parliament Legal Affairs Committee

To the members of the EP Committee for Legal Affairs

Subject: Rome II - Vote of the JURI Committee on the Report of Diana Wallis on the draft Regulation on applicable law to non-contractual obligations ( Rome II) on 20 June 2005.

European print and online media and journalists represented by ENPA, EPC, FAEP, FEP and EFJ call on MEPs to support the amendments to Article 6 of: Diana WALLIS, Klaus-Heine LEHNE, Jean-Paul GAUZES or Adeline HAZAN, in order to ensure freedom of expression and legal certainty for journalists and the media generally across the European Union.

In brief:

The undersigned organisations would like to draw your attention to the vote that will take place on Monday 20 June in the JURI Committee on Rome II, the draft Regulation on applicable law to non-contractual obligations.

Article 6 of Rome II provides for a special rule to regulate which law would apply in cross border cases of defamation, violations of privacy and the right of reply. These are matters of high importance for printed and electronic newspapers, magazines and books and for the freedom of expression and of the press in general.

The Commission’s original proposal creates legal uncertainty for journalists and publishers and is therefore in need of amendment.

For over two years, the European media has been discussing with the Commission and Council and relevant Parliament deputies in order to arrive at a situation which does not prejudice the freedom of expression, but at the same time does not prejudice the rights of the individual.

In this respect, the draft Report of Mrs. Wallis contains an approach acceptable to the media and a number of amendments tabled reflect this approach. We therefore strongly urge you to support the following amendments when voting:

SUPPORT for Article 6:

<form name="form1" action="" method="post">

<input type="checkbox" checked="checked" name="checkbox" value="checkbox"/> Amendment 28, Alternative 2 of Diana Wallis

<input type="checkbox" checked="checked" name="checkbox2" value="checkbox"/> Amendment 82 of Adeline Hazan

<input type="checkbox" checked="checked" name="checkbox3" value="checkbox"/> Amendment 83 of Klaus-Heiner Lehne

<input type="checkbox" checked="checked" name="checkbox4" value="checkbox"/> Amendment 84 of Jean- Paul Gauzès

At the same time, we would urge you to reject the following amendments concerning defamation, which would lead to uncertainty for the European press and journalists:

REJECT for Article 6:

<input type="checkbox" checked="checked" name="checkbox5" value="checkbox"/> Amendment 27, Alternative 1 of Diana Wallis

<input type="checkbox" checked="checked" name="checkbox6" value="checkbox"/> Amendment of the LIBE Committee

<input type="checkbox" checked="checked" name="checkbox7" value="checkbox"/> Amendment 85 of Rainer Wieland and Klaus-Heiner Lehne

<input type="checkbox" checked="checked" name="checkbox8" value="checkbox"/> Amendment 86 of Manuel Medina Ortega

</form>

Background and Justification

ENPA, EPC, FAEP, FEP and EFJ have raised concerns about the dangers that the Commission’s original proposal on Art. 6 would create for the free flow of information across the EU and for the freedom of the press as guaranteed in each Member States and by the European Convention of Fundamental Rights.

Under the Commission’s proposal, publishers and journalists would be under constant threat of being sued worldwide under a myriad of different laws. Also it would enable the claimant to go “shopping” for the law (and jurisdiction) of his/her choice. Such an approach would without doubt create a climate of great legal uncertainty for the publisher and journalists and also risk severe limitations on the freedom of expression in the different Member States. In practice, it would be impossible for a publishing house or a journalist to check compliance with many different foreign laws before publication. Such an approach is particularly problematic when you consider the international character of online publication.

Unless this Article is amended, publications could be gagged by court order and editors prevented from publishing articles, even though the publication would have complied with their national laws on defamation and privacy. Journalists would be required to analyze the press laws of the country or countries where the media is accessible to decide whether their work could prejudice foreign legislation on privacy and defamation. This would inevitably increase self censorship while legal foreseeability is necessary for journalists to conduct their duties in the most fair and equitable manner.

This would adversely affect the free flow of information across the EU and limit the access by EU citizens to information from a diverse range of sources.

Although we have expressed these views already to Members of the European Parliament, and in particular to the Rapporteur Ms. Diana Wallis, and the draftsman in LIBE, we regret to see that a number of amendments proposed do not remove the risks mentioned above and, on the contrary, will open the door to forum and law shopping, thereby increasing legal uncertainty and preventing newspapers, magazines and journalists from carrying out their functions of informing the public.

We therefore call on the members of the JURI Committee to vote against Amendment 27 of Mrs. Wallis (Alternative 1), Amendment of the LIBE Committee, Amendment 85 or Mr. Wieland and Mr. Lehne and Amendment 86 of Mr. Medina Ortega.

Instead we recommend the amendments placed by Mrs. Wallis (Alternative 2), Mrs. Hazan, Mr. Lehne and Mr. Gauzes be accepted by the Committee. These provide for solutions ensuring legal certainty whilst respecting the freedom of expression across the European Union.

As indicated in the justifications for these amendments, any specific rule for the media for claims of defamation and violations of privacy must have regard to the fundamental principle of freedom of the press. The amendments establish that the country for which the publication (or broadcasting service) is mainly intended should form the basis of the rule, which can be determined by factors such as the language of publication or broadcast, the volume of sales or the audience size. In cases where it is not possible to determine which country the publication or broadcasting service is mainly intended, because of its international character, the law of the country in which editorial control is exercised would apply in order to provide legal certainty for international publications (and broadcasting services).

Yours faithfully,

The undersigned European publishers’ and journalists organisations:

Aidan White - European Federation of Journalists (EFJ)

General secretary

Valtteri Niiranen - European Newspaper Publishers’ Association (ENPA)

Director

Angela Mills Wade - European Publishers’ Council (EPC)

Executive Director

David Mahon - European Federation of Magazine Publishers (FAEP)

Secretary General

Anne Bergman-Tahon - Federation of European Publishers (FEP)

Director


For any information, please contact:

EFJ - Pamela Morinière

European Federation of Journalists

Residence Palace

Rue de la loi 155

1040 Brussels

Phone : 00 32 2 235 22 16

Email : Pamela.moriniere@ifj.org

ENPA - Sophie Scrive

European Newspaper Publishers’ Association

Rue des Pierres 29 bte 8

1000 Bruxelles

Belgique

Phone : 32 2 551 01 90

Fax : 32 2 551 01 99

e-mail : sophie.scrive@enpa.be

EPC - Angela Mills Wade

European Publishers Council

26 Avenue Livingstone

1000 Brussels

Phone: 32 2 231 1299

Fax: 32 2 230 7658

Email: angela.mills@wade.uk.net

FAEP - David Mahon

European Federation of Magazine Publishers

Rue d’Arlon 15

1050 Brussels

Phone: 32 2 286 80 94

Fax: 32 2 2286 80 95

Email: david.mahon@faep.org

FEP- Anne Bergman-Tahon

Féderation des Editeurs Européens / Federation of European Publishers

204, Avenue de Tervuren

B-1150 Bruxelles

Phone: 32 2 770.11.10

Fax: 2 2 771.20.71

Email: abergman@fep-fee.be