The European Court of Justice (ECJ) has held that copyright infringement proceedings may be brought in any EU member state where a website is accessible, even if it is not targeted at users there, although only in respect of damage incurred within each jurisdiction.
Persons domiciled in a member state, whatever their nationality, are to be sued in the courts of that member state (Article 2, the Brussels Regulation (44/2001/EC)). A person may be sued in another member state in matters relating to tort in the courts for the place where the harmful event occurred or may occur (Article 5(3), the Brussels Regulation) (Article 5(3)). This means that the defendant may be sued in both the place where the damage occurred and the place of the event giving rise to it (Melzer v MF Global UK Ltd, Practical law).
In Pinckney v KDG Mediatech AG, the ECJ held that Article 5(3) did not require the activity concerned to be “directed to” the member state where the court seised was situated, so a French court had jurisdiction in relation to infringing CDs because they had been offered on a website that was accessible to consumers in France (Practical law).
P sued E in Austria for infringing her copyright in photographs that E made available for viewing and downloading on its website. E argued that proceedings should not have been brought in Austria, as its website used the German .de top-level domain and was not directed at users in Austria. It said that the mere fact that the website was accessible in Austria was insufficient to confer jurisdiction on the Austrian court.
The court referred to the ECJ the question whether in these circumstances Article 5(3) meant that there is jurisdiction only in the member state where the defendant is domiciled and in the member state(s) to which the website, according to its content, is directed.
The ECJ held that Article 5(3) meant that mere accessibility of the website within Austria was sufficient to give the Austrian court jurisdiction. However, a court could only rule on damage caused within the member state where it was situated.
The Austrian court did not have jurisdiction by virtue of the place where the causal event giving rise to the harm took place. The decision to place the material online, and the activation of the process for the technical display of the photos on the website, did not take place in Austria, as E was not situated there.
In assessing jurisdiction based on where the damage allegedly occurred, the ECJ analysed whether damage might occur in Austria as a result of E‘s use of the photos. P‘s copyright was protected in Austria. E argued that its website was not directed at Austrians and therefore no damage was done to the copyright within Austria. Following Pinkney, however, the activity need not be targeted at website users in Austria. Therefore, damage (or likelihood of damage) arose from the mere accessibility of the website in Austria.
The very wide test in Pinckney (wider than “intention to target”) opened up jurisdiction over copyright infringement claims to all places where a website is accessible. However, in Pinckney, damage was limited to those member states where physical copies of the CDs had been received by consumers. Where, as here, the infringement is online, the potential jurisdiction and the extent of damage is even wider. The ease of digital copying has increased the likelihood of claims for online infringement. These claims are now likely to increase further as a result of this decision because it means that the claimant can almost always sue in its home jurisdiction, something it may be more willing to do than suing abroad.
The decision makes it even more important for content users to ensure that they have all the rights needed to use the content in question, otherwise there is now potential exposure to claims in a wide range of jurisdictions, at the claimant’s election. Where rights are restricted to certain territories it becomes imperative to geo-block effectively, because the defendant cannot rely on not having targeted those territories. There is, however, one reality check point: for any serious infringement with significant damages attached, ideally the claimant will still want to sue in the defendant’s home court so that it can recover all damages, rather than just damage in one country.
In addition, as a practical matter, if the claimant’s home court takes jurisdiction on the basis of mere accessibility, but the facts do not support targeting, then a substantive claim for infringement by "making available" (necessarily limited to that jurisdiction) is bound to fail.
Case: Pez Hejduk v EnergieAgentur.NRW GmbH C 441/13.
First published in the March 2015 issue of PLC Magazine and reproduced with the kind permission of the publishers. Subscription enquiries 020 7202 1200.