Christopher Kunke, Rome Ii and Defamation: Will the Tail Wag the Dog?

• Jurisdiction: European Union
• Citation: Vol. 19 No. 3
• Publication year: 2005

ROME II AND DEFAMATION: WILL THE TAIL WAG THE DOG?

I. INTRODUCTION

Over thirty years ago, the European Community attempted to unify choice- of-law principles for contract and tort.¹Efforts failed to unify tort conflicts rules but succeeded for contracts in 1980 with the Rome Convention.²

Recently, the European Union identified harmonizing choice-of-law rules for tort as a legislative priority, and the European Commission drafted a new proposed set of rules.³In June 2003, the European Commission approved a "Proposal for a Regulation of the European Parliament and the Council on the Law Applicable to Non-Contractual Obligations," known as "Rome II."⁴The "Commission's Proposal" sets forth a general conflicts rule for torts and delicts, and includes a special caveat for right to privacy and personality torts, such as defamation.⁵The European Parliament (EP) subsequently evaluated the Commission's Proposal and, in July 2005, adopted a Resolution substantially amending the Regulation.⁶

The European publishing and broadcasting community swiftly and severely criticized the Commission's preliminary draft-known as the "Consultation"- and the Commission's succeeding Proposal.⁷Many Continental European and English critics categorically opposed uniform conflicts legislation for tort.⁸

Opponents throughout Western Europe also specifically criticized the proposed defamation and right to privacy rules.⁹The main dispute regarding violations of privacy and defamation is whether courts should apply the law of the place of injury or the place of the defendant's conduct. The Commission's Proposal generally applies the law of the victim's place of injury.¹⁰The EP settled on a slightly different principle after several varying "Draft Reports" promulgated by Diana Wallis, the Rapporteur for the Committee on Legal Affairs and the Internal Market.¹¹The Committee ultimately recommended that courts apply the law of the country to which the publication is "principally directed."¹²

However, the specific defamation rule was so hotly contested that, in one Draft Report, Ms. Wallis recommended altering the general tort rule to accommodate the thorny defamation rule.¹³The EP also urged the Commission-in a recital to the proposed Regulation-to create an E.U. media code and council to evaluate and regulate the dynamic between the press' freedom of expression and an individual's right to personality.¹⁴

Critics claim that the Commission's Proposal's place of injury rule and its multiple exceptions would promote increased unpredictability, forum shopping, an increased burden on judges, and potential violations of national public policy.¹⁵Ironically, the English press joined in these objections.

English defamation law is notoriously pro-plaintiff and can stifle the press' freedom of expression.¹⁶The rules in both the Commission's Proposal and the "EP Resolution" would decrease the frequency that English courts applied forum law for reasons discussed in Part III of this Comment.¹⁷Presumably, the English press would endorse applying English law less often. However, the English press advocates applying English law despite its disadvantageous burden of proof and high award of damages.¹⁸

Defamation presents an exceptional choice-of-law problem that has long puzzled American courts and scholars.¹⁹This Comment explores the effects of the European unification of conflict-of-laws rules under Rome II and reexamines the particular choice-of-law tension that defamation poses. Rome

II's potential effect on English defamation law provides a framework for unraveling why publishers and broadcasters have such an intense interest in the proposed rules. Part II provides background on the current trends in conflicts of laws for tort in Europe and the push for unified rules by the European Union. Part III examines the legislation's potential effect on English defamation law and discusses the media industry's criticisms of the various proposals. Part IV juxtaposes choice-of-law theory with defamation's underpinning to determine which conflicts approach best comports with the European Union's goals and the industry's needs. Part V examines the various solutions and makes recommendations for the most circumspect future path for Rome II regarding defamation.

II. BACKGROUND: CURRENT APPROACHES IN EUROPEAN CHOICE OF LAW FOR

TORT AND E.U. HARMONIZATION

A. General European Choice-of-Law Principles for Tort

In Continental Europe, the "prevailing orthodoxy" of tort choice-of-law rules is the lex loci delicti commissi (lex loci), or the application of the law where the tort was committed.²⁰There is not, however, accord as to whether this law should be the place of the defendant's action or the place of injury.²¹

The French²²and Austrians²³apply the law where the defendant acted. The Swiss,²⁴Portuguese,²⁵and Polish²⁶may apply either rule, depending on the specific case. In Germany and Italy, the plaintiff may choose the most favorable law (Günstigkeitsprinzip).²⁷The majority of common law countries apply the law where the material was published, but there is not uniformity as to whether this means the place of distribution or the place of creation.²⁸

England lagged behind the rest of Western Europe in adopting the lex loci principle.²⁹Traditional English law applied the lex fori (law of the forum) to torts committed within England, even in multi-state tort cases.³⁰In 1995, the Private International Law (Miscellaneous Provisions) Act codified and amended English conflicts law.³¹The statute specified that the conflicts law in tort would be the law "in which the most significant element or elements of those events occurred."³²Thus, England adopted a version of the lex loci rule.³³However, the Act contained a specific exception for defamation. Section 13(1) of the Act states: "Nothing in this Part applies to affect the determination of issues arising in any defamation claim."³⁴Thus, English judges generally still apply the lex fori in defamation cases.³⁵An English judge may apply another country's law if a compelling reason exists, but publication is the most significant element of the English tort and, therefore, a judge may define "publication" so as to lead to forum law.³⁶The "double- actionability" rule, which requires that the foreign cause of action has an English counterpart, also promotes applying the lex fori to defamation suits.³⁷

The 1995 Act abolished the double-actionability rule generally but excepted defamation.³⁸The purpose of this exception was to prevent suits on foreign claims that would restrict the English press' freedom of speech,³⁹although the likelihood that English courts would be "peppered with actions . . . seems like an unlikely one."⁴⁰Judges must examine the lex fori to verify that the foreign claim is actionable for damages under English law.⁴¹English judges may display bias towards the lex fori because it is the legal lynchpin of the cause of action. A theoretical divide, therefore, exists between English courts applying the lex fori in defamation cases and lex loci-oriented Continental Europe.

B. E.U. Harmonization

1. E.U. Competence to Regulate

The 1999 Treaty of Amsterdam conferred upon the European Community authority to regulate in the area of civil law for the European Union.⁴²Article

65 of the Amsterdam Treaty grants the European Community the ability to take "[m]easures in the field of judicial cooperation in civil matters . . . insofar as necessary for the proper functioning of the internal market . . . [including] promoting the compatibility of the rules applicable in the Member States concerning the conflict of laws."⁴³Despite this express grant of authority,

Rome II's opponents question the legality of the proposed Regulation, claiming that the rules are not necessary for the "proper functioning of the market."⁴⁴The Commission's Proposal addressed this criticism of the Regulation's legality, noting that a uniform conflicts law for tort would meet the subsidiarity and proportionality requirements⁴⁵and further the mutual recognition program.⁴⁶The EP also proclaimed that Articles 65 and 251 of the Treaty of Amsterdam conferred the ability to legislate conflicts rules.⁴⁷The Treaty of Amsterdam does not, however, indicate where the Community should derive the law's substance.

2. The European Union's Proposed Unified Rules

The proposed Regulation would apply to most E.U. Member States automatically except Denmark. England and Ireland, however, are not covered as the result of a reservation to the Maastricht Treaty unless they "opt in."⁴⁸

England and Ireland will most likely opt in to the regulation.⁴⁹Originally, the

E.U. Commission proposed applying the law of the plaintiff's "place of habitual residence" in defamation cases.⁵⁰Publishers and broadcasters criticized this proposed rule so strongly that the drafters abandoned the suggestion in the official draft, the Commission's Proposal.⁵¹Unsurprisingly, the Commission turned to the approach employed by the vast majority of Member States: the lex loci.⁵²The Commission's Proposal employs the lex loci as the general principle but includes numerous qualifications and a special "escape hatch" for right to privacy and personality cases.⁵³Article 3 of the Commission's Proposal promotes application of the law of the place where the plaintiff's reputation suffered harm:

The law applicable to a non-contractual obligation shall be the law of the country in which the damage arises or is likely to arise, irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event arise.⁵⁴

Article 3 also provides two exceptions to this general principle. Article

3(2) provides that when both the plaintiff and defendant have their habitual residence in the same country where the damage occurs, the law of that country applies.⁵⁵Generally, the two coincide, and, thus, most cases would fall into this category.⁵⁶Under...