Westphalian principles (I): international jurisdiction in the online infringement of...

It has become commonplace to compare the internet to the “Wild West”. The 19th-century expansion of the United States’ border towards the Pacific coast is an apt metaphor for the unexplored territory that is the internet, as well as the challenges it poses. Optimists ponder the existence of a virgin territory full of opportunity, while pessimists warn of the dangers represented by its lawlessness.Muñoz Machado tells us that "the internet does not acknowledge Westphalian principles". The Westphalia peace treaties, signed in 1648 in Osnabrück and Münster, not only marked the end of the European wars of religion, but also established a balance of power among the various European nation-states which prevented interference in others’ affairs. That balance was articulated via a new international law that was applied to all nation-states. The internet, however, does not acknowledge the balance of power provided by an international regulation orchestrated by the concert of nations.

Faced with this total absence of order, we must turn to private international law to resolve the private international matters that arise online, as well as to determine which national court will hear the matter and which national law should apply. This series of articles aims to review these two key issues, limited to the European arena for the purpose of brevity.

We’ll begin with international jurisdiction, the benchmark in this area being Regulation (EU) 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. Known as Brussels I bis, the rules it contains only apply when the defendant is domiciled in a Member State. If the defendant has their domicile outside the borders of the European Union, the European court the case is presented before must apply the international jurisdiction rules established by its national law (in Spain, articles 21-25 of the Organic Law on the Judiciary).

To determine which Member State is competent to hear a case, the Brussels I bis Regulation contains three types of rules (fora):
  • Exclusive jurisdictions: are listed in article 24 and attribute sole and exclusive jurisdiction to the courts of a Member State, absolutely excluding the possibility of another Member State hearing the case. Thus, in regards to the registration or validity of patents, trademarks, designs and other similar rights subject to deposit or registration, only the courts of the Member State in which the deposit or registration has been applied for will be competent.
  • Express submission: if exclusive jurisdiction is not involved, then the will of the parties (prorogatio fori) prevails.
  • The defendant’s domicile: this criterion is not only used to determine the application of the Regulation; if the defendant is domiciled in a Member State, the courts of their domicile (general fora) and those designated as special fora (art. 7-23) will be competent. Case law vividly depicts the latter as “attack fora” precisely because they provide the plaintiff with the dual option we have mentioned: to file their lawsuit before the courts where the defendant's domicile is established, or, alternatively, before the courts designated by the special jurisdiction rule according to the subject matter. Given that the Regulation does not contain an autonomous definition of domicile, these “attack fora” sometimes reveal themselves to be an interesting alternative.

It is worthwhile to briefly stop at these special fora, since one of them will give us the key when it comes to identifying the court with which to file a lawsuit for online copyright infringement. We are specifically interested in the forum contained in article 7.2: the place where the harmful event occurred or may occur. The reader will understand that online, the place where the harmful event occurred could be any country where the user has access to a device connected to the internet. This exponentially multiplies the need to sue in several countries, and as Xalabarder reminds us, the existence of multiple competent fora does not necessarily mean that they all have the same sphere of competence. The question that arises is whether all of these courts are competent to prosecute the infringement committed on a global scale, or only the part committed within the borders of their respective territory.

A recent judgment by the Court of Justice of the European Union (CJEU) on January 22, 2015 in the Hejduk case (C-141/13) can help us illustrate the complexity of the matter. Very briefly: Ms. Hejduk, the creator of a series of photographs depicting the work of an Australian architect, Georg W. Reinberg, brought a copyright infringement lawsuit against the company EnergieAgentur before the Austrian courts. Without obtaining authorization, the Germany company had made the photographs taken by the creator publicly available on its website. EnergieAgentur raised an objection regarding the court’s lack of international jurisdiction, alleging that the website where the works were accessible was not directed at the Austrian public, but instead the German public, because the website’s domain was “.de”. The Austrian court decided to refer the matter to the CJEU for a preliminary ruling, asking whether the mere accessibility of a website in a specific territory is sufficient for it to be considered the place where the harmful event occurred for the purposes of article 7.2 of the Brussels I bis Regulation (article 5.3 of Regulation 44/2001, Brussels I, at the time the judgment was issued).

The Court of Justice upheld the case law that had already been expressed in the Wintersteiger (C?523/10) and Pinckney (C-170/12) cases: the courts of the place where the harm originated are competent. How is that place determined in a case where the infringement consists of disseminating photographs online without the creator’s consent? The Court considered the causal event to be “the activation of the process for the technical display of the photographs on that website” (sec. 24). The courts of the various places where the harm occurred are also competent. However, following the line of case law already expressed in the Pinckney judgment, the Court specified that this jurisdiction only covers the prosecution of the harm caused within their respective territories.

This is regarding international jurisdiction. In the next article, we will examine which law should be applied by the judge found to be competent.
Luis Ramírez
Partner at ICN LEGAL