THE EU COURT OF JUSTICE RULES THAT IT MAY BE POSSIBLE FOR A FRENCH COURT TO ASSESS DAMAGES ARISING FROM A DEFAMATORY CLAIM MADE BY A HUNGARIAN COMPANY AGAINST A CZECH COMPANY IF SOME OF THE ALLEGED DAMAGE OCCURRED WITHIN FRANCE (GTFLIX TV / DR)

Mathou Koïta, Yasmine Gilbert Sastre

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Mathou Koïta, Yasmine Gilbert Sastre. THE EU COURT OF JUSTICE RULES THAT IT MAY BE POSSIBLE FOR A FRENCH COURT TO ASSESS DAMAGES ARISING FROM A DEFAMATORY CLAIM MADE BY A HUNGARIAN COMPANY AGAINST A CZECH COMPANY IF SOME OF THE ALLEGED DAMAGE OCCURRED WITHIN FRANCE (GTFLIX TV / DR). Concurrences; e-Competitions December 2021, Art. N° 106284. 2021. hal-04251915

HAL Id: hal-04251915

https://hal.science/hal-04251915v1

Submitted on 23 Oct 2023

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THE EU COURT OF JUSTICE RULES THAT IT MAY BE POSSIBLE FOR A
FRENCH COURT TO ASSESS DAMAGES ARISING FROM A DEFAMATORY CLAIM
MADE BY A HUNGARIAN COMPANY AGAINST A CZECH COMPANY IF SOME OF
THE ALLEGED DAMAGE OCCURRED WITHIN FRANCE (GTFLIX TV / DR)

This decision deals with a dispute between Gtflix, an adult film broadcaster based in the Czech Republic, and its competitor, DR, an adult film broadcaster and producer based in Hungary. Gtflix is seeking the removal of derogatory statements made by DR on several websites and internet forums and compensation for damage.

Gtflix summoned DR to appear before the Lyon Trial Court in summary proceedings. DR raised an exception of lack of jurisdiction which was granted on 10 April 2017. Gtflix appealed to the Lyon Court of Appeal, which dismissed its claim on 24 July 2018. The Gtflix company then filed an appeal to the French supreme Court. The Court stayed the proceedings to refer a question to the CJEU for a preliminary ruling.

The issue was to determine the extent of the jurisdiction of a court to which both a claim for damages and a claim for rectification of discriminatory statements posted on the internet were referred.

The CJEU answered that, in the case of referral for rectification as well as for compensation, the courts must deal with the question of jurisdiction in relation to each of the claims separately. The court's lack of jurisdiction in the matter of rectification does not imply its lack of jurisdiction to deal with reparation.

The present article will study the dissociation of the claim for rectification from the claim for compensation relating to violations of personality rights on the internet (I). Then, it will put the judgment into perspective regarding infringements of competition law on the internet (II).
## I. THE DISSOCIATION OF THE CLAIM FOR RECTIFICATION FROM THE CLAIM FOR COMPENSATION RELATING TO VIOLATIONS OF PERSONALITY RIGHTS ON THE INTERNET

In its solution, the Court dissociated the claim for rectification from the claim for compensation within the same claim before a court of a Member State where the harmful event occurred. Thus, the French court will have jurisdiction in an action for compensation for damage suffered on its territory but not for the rectification of discriminatory statements. The claimant will have to act at the place of his principal center of interest or place of defendant's.

This judgment is in line with the case law of the Court. In its e-Date judgment (ECJ, 25 October 2011, eDate Advertising e.a., C-509/09 and C-161/10), the Court ruled that an action for compensation for damage can be brought before the courts of each Member State where the content was put online or was accessible. But a liability action for full compensation for damage can be brought before the Court of the defendant's domicile or the court of the victim's center of main interests.

In addition, in the Bolagsupplysningen judgment (ECJ, 17 October 2017, Bolagsupplysningen and Ilsjan, C-194/16), the Court declared that a legal person carrying on an economic activity could bring forth an action for damage to its commercial reputation caused by the publication of inaccurate information on the internet. It may request the deletion of comments under the same conditions as an individual. In the same judgment, the Court stated that the rectification action can only be brought in the Member State where the claimant resides or where the victim's main interests are located. However, the claim for compensation does not follow the same fate as the action for rectification. The jurisdictional criterion is still determined by the place where the damage materializes, i.e., the place where the content put online is accessible. The courts of each place where the damage occurred therefore remain competent to hear the claim to the extent of the damage suffered in their jurisdiction. The Gtflix judgment reiterates this solution.

## II. PUTTING THE JUDGMENT INTO PERSPECTIVE WITH REGARD TO INFRINGEMENTS OF COMPETITION LAW ON THE INTERNET
The case law of the Court has determined that civil liability actions based on an infringement of the rules of competition law fall within the scope of 'matters relating to tort, delict or quasi-delict' within the meaning of the Brussels I bis Regulation (ECJ, 24 November 2020, Wikingerhof GmbH & Co. KG v. Booking.com BV, C-59/19). For anti-competitive practices, where the courts have jurisdiction under the operative event, they have jurisdiction for the entire damage (ECJ, 21 May 2017, CDC, C-352/1 for cartels, place of the agreement determining the constitution of the cartel). And the courts of the place where the damage occurred have jurisdiction only for the damage suffered in the territory of the court (ECJ, 9 July 2020, Volkswagen AG, C-343/19 and ECJ, 15 July 2021, RH c. AB Volvo; C-30/20; for abuse of dominant position see ECJ, 24 October 2018, Apple Sale, C-595/17). Thus, for allegations involving an affected market, the jurisdiction of the court will only be established to hear the damage suffered in the jurisdiction of that affected market. The ECJ has also decided that if the harm to competition is caused via the internet, the courts of each Member State wherein the content was put online or was accessible have no jurisdiction.

The publication of disparaging comments is in some ways comparable with an infringement of competition law. Indeed, the purpose of which seems to be to harm competition. It would thus be a form of unfair competition. But in *Gtflix*, the Court underlines that the competent courts are those of the Member State where the website is accessible. The approach adopted is therefore to designate public disparagement between competitors as an infringement of personality rights and not an infringement of competition law. Such reasoning is questionable. Indeed, publicly disparaging competitors seems to be more a question of competition law than of infringement of personality rights.

Adopting the logic of the *eDate* judgment – concerning the personality rights – to the matters of publicizing disparaging comments on the internet, *Gtflix* focus on the compensation for damages while the cessation of the infringement of competition law is the priority of the European regulation. The focus should have been on removing and rectifying comments.

Moreover the decision allows the claimant much freedom on the basis of an infringement of personality rights: it is possible to bring the case before each court where the damage occurred. In *Gtflix*, by retaining the criterion of accessibility of the site to determine the jurisdiction, the Court moves away from the solutions adopted in matters of competition law, which are more restrictive and limit the applicant's forum shopping.
In a situation close to unfair competition, Gtflix appears to open the door to forum
shopping for claims involving allegations of disparagement by admitting the broad test of site
accessibility. It is possible to wonder if public disparagement on the internet between direct
competitors does not belong more to competition law than to personality rights. The Court
should have referred to its reasoning in competition law, where the relevant criterion is the
affected market. This would have limited the possibilities of establishing jurisdiction in this
context.

One can only be surprised that the solution adopted in Gtflix allows the French court to
retain jurisdiction in a dispute between two competing foreign companies without it being
established that the French market is affected.