Comparative study on the situation in the 27 Member States as regards the law applicable to non-contractual obligations arising out of violations of privacy and rights relating to personality.
Date: 2024-04-17
Institutions: Directorate-General for Justice and Consumers
Subjects: EU Member State, comparative study, data protection, freedom of communication, fundamental rights, personal data, protection of communications, protection of privacy, right to information, right to justice

Comparative 
study 
on the situation 
in the 27 member 
states as regards 
the law applicable 
to non-contractual 
obligations arising 
out of violations 
of privacy and 
rights relating to 
personality

Manuscript completed in February 2009

This document should not be considered as representative of the European Commission’s official position. 

Luxembourg: Publications Office of the European Union, 2024

© European Union, 2024

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Comparative study on the situation in the 27 Member States as 
regards the law applicable to non-contractual obligations arising 
out of violations of privacy and rights relating to personality. 
JLS/2007/C4/028. Final Report 

COMPARATIVE STUDY ON THE 
SITUATION IN THE 27 MEMBER STATES 
AS REGARDS THE LAW APPLICABLE TO 
NON-CONTRACTUAL OBLIGATIONS 
ARISING OUT OF VIOLATIONS OF 
PRIVACY AND RIGHTS RELATING TO 
PERSONALITY 

Customer: 

European Commission 

Directorate General Justice and Home Affairs 

Directorate C: Civil Justice, Rights and Citizenship 

Date: 

February 2009 

Our Reference: 

Privacy Study. Final Report. 

1 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
Comparative study on the situation in the 27 Member States as 
regards the law applicable to non-contractual obligations arising 
out of violations of privacy and rights relating to personality. 
JLS/2007/C4/028. Final Report 

Contents 

ACKNOWLEDGEMENTS ....................................................................................................................... 4 

1  EXECUTIVE SUMMARY................................................................................................................... 5 

2  FRAMEWORK OF THE STUDY ..................................................................................................... 10 

2.1  CONTEXTUAL FRAMEWORK OF THE STUDY. .................................................................................. 10 
2.2  THE LEGAL BACKGROUND ........................................................................................................... 12 
Introduction ...................................................................................................................................................... 12 
2.2.1 
2.2.2 
International Legal Juridistion. Regulation 44/2001 ......................................................................................... 15 
2.2.3  Applicable law .................................................................................................................................................. 17 
2.2.4  An ex-ante approximation of the problems of the rules of law applicable. ....................................................... 22 

3  STUDY METHODOLOGY ............................................................................................................... 25 

3.1  METHODOLOGY .......................................................................................................................... 25 
Introduction ...................................................................................................................................................... 25 
3.1.1 
3.1.2  Methodological summary ................................................................................................................................. 26 
3.1.3  The timing ........................................................................................................................................................ 28 
3.1.4  The Results ...................................................................................................................................................... 30 
3.1.4.1  Distribution of answers............................................................................................................................. 30 
Information-gathering procedure.............................................................................................................. 33 
3.1.4.2 
Interactions with Media and Press Associations .............................................................................................. 34 
3.2  THE TEAM FOR THE CURRENT STUDY .......................................................................................... 38 

3.1.5 

4  STUDY FINDINGS .......................................................................................................................... 39 

‗CURRENT INTERESTS‘: PERSONALITY RIGHTS VERSUS FREEDOM OF EXPRESSION ............................ 39 

4.1 
4.2  COMPARED VISION OF THE PERSONALITY RIGHTS OF THE MEMBER STATES OF THE EU (SUBSTANTIVE 
FORMATIVE REGULATION IN THE LEGAL SYSTEMS OF THE MEMBER STATES) .............................................. 45 
4.3  THE PROCESS OF GRADUAL HARMONISATION/UNIFICATION OF NON-CONTRACTUAL OBLIGATIONS IN THE 
EUROPEAN UNION ............................................................................................................................... 56 
4.4  EUROPEAN INTERNATIONAL PRIVACY LAW IN THE CASE OF POSSIBLE ALLEGED INFRINGEMENT OF 
PERSONALITY RIGHTS ........................................................................................................................... 60 
International judicial competence of the courts of the Member States ............................................................. 60 
4.4.1.1  Substantive Scope of the jurisdiction of special competence .................................................................. 60 
4.4.1.2  Autonomous concept of criminal or quasi-criminal subject matter of art. 5.3. R 44/2001 ........................ 61 
4.4.1.3  Legal qualification of the place where the damaging act occurs or could occur and illicit acts against 
private life ................................................................................................................................................................. 61 

4.4.1 

4.4.2  The law applying to non-contractual obligations deriving from acts against personality rights. The 
conventional European and Community rules in the area of non-contractual civil liability ............................................ 63 
4.4.2.1  Agreement 108 of the Council of Europe ................................................................................................. 66 
4.4.2.2  Directive 95/46/EEC................................................................................................................................. 67 
4.4.2.3  Rome II Regulation .................................................................................................................................. 73 
4.4.2.4  Exclusion of the issue of defamation from Rome II.................................................................................. 78 

4.5  COMPARATIVE ANALYSIS OF THE INTERNAL RULES OF CONFLICT IN THE NATIONAL LAW OF THE 
RESPECTIVE EU STATES ....................................................................................................................... 84 
4.5.1  An overview ...................................................................................................................................................... 84 
4.5.2  General rules. ................................................................................................................................................... 86 
4.5.2.1  Rule of “Lex loci delicti commissi” ............................................................................................................ 86 
“Double actionability” rule. ....................................................................................................................... 96 
4.5.2.2 

4.5.3  Special conflict of laws rules for non-contractual civil obligations derived from harm caused to privacy and 
other personality rights through the press. .................................................................................................................. 101 

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Comparative study on the situation in the 27 Member States as 
regards the law applicable to non-contractual obligations arising 
out of violations of privacy and rights relating to personality. 
JLS/2007/C4/028. Final Report 

4.5.4  Exceptions to the general rule of the ―lex loci delicti commissi‖ ..................................................................... 108 
4.5.4.1  Autonomy of will ..................................................................................................................................... 108 
4.5.4.2  Common nationality or habitual residence ............................................................................................. 109 
4.5.4.3  Closest links ........................................................................................................................................... 111 
4.5.4.4  Habitual residence of the injured party .................................................................................................. 113 
4.5.5  Conflict of laws rules substantially aimed at protection of the injured person ................................................ 114 
4.5.6  Limits on the application of foreign law .......................................................................................................... 117 
4.5.7  Summary table ............................................................................................................................................... 120 
4.6  ANALYSIS OF THE RESULTS OBTAINED FROM THE SURVEYS CARRIED OUT BY THE STUDY ................. 122 
4.6.1  The quantitative questionnaire ....................................................................................................................... 122 
4.6.2  The qualitative questionnaire ......................................................................................................................... 123 
4.7  FINAL CONSIDERATIONS AND PROPOSALS FOR THE FUTURE .......................................................... 149 

5  BIBLIOGRAPHY ........................................................................................................................... 160 

ANNEX I ........................................................... THE QUESTIONNAIRES USED IN THE SURVEY 

ANNEX II .................................................................................... SURVEY ANSWERS RECEIVED 

ANNEX III ......................................................................................... EU 27 NATIONAL REPORTS 

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Comparative study on the situation in the 27 Member States as 
regards the law applicable to non-contractual obligations arising 
out of violations of privacy and rights relating to personality. 
JLS/2007/C4/028. Final Report 

ACKNOWLEDGEMENTS 

We  would  like  to  express  our  gratitude  for  the  support  of  the  National  and 
European Authorities, Media and Press Associations, and in general to all the 
professionals (including lawyers and judges) of the Member States who have 
contributed to this study with their many and very valuable comments on their own 
experiences and points of view on this subject. 

Without  the  feedback  from  the  professionals  mentioned  above,  we  would  have 
missed a key support pillar on which to present the findings and conclusions we will 
expose in this document. 

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Comparative study on the situation in the 27 Member States as 
regards the law applicable to non-contractual obligations arising 
out of violations of privacy and rights relating to personality. 
JLS/2007/C4/028. Final Report 

1  EXECUTIVE SUMMARY 

The project 

On 11 July 2007 the European Parliament and the Council adopted the “Rome II” 
Regulation  on  the  law  applicable  to  non-contractual  obligations  (OJ  L  199, 
31.7.2007,  p.  40).  Under Article  1(2)(g),  “non-contractual obligations arising  out of 
violations  of  privacy  and  rights  relating  to  personality,  including  defamation”  are 
excluded from the Regulation‘s scope. 

As a result, conflict-of-law rules in this field are not harmonised at Community level 
and  the  courts  in  the  Member  States  continue  to  apply  their  own  private 
international law. 

Against  this  background,  the  European  Commission  concluded  a  contract  with 
MainStrat to obtain a comparative study on the situation in the 27 Member States as 
regards the law applicable to non-contractual obligations arising out of violations of 
privacy and rights relating to personality.  

The  Commission,  following  the  invitation  by  the  European  Parliament  and  the 
Council in the frame of Article 30 of the ―Rome II‖ Regulation, will submit, not later 
than December 2008, a study on the situation in the field of the law applicable to 
non-contractual obligations arising out of violations of privacy and rights relating to 
personality. MainStrat has produced this Study Report, which will be used as input 
in the preparation of the Commission‘s study report. 

The study is based on a thorough legal research, and on the feedback provided by 
National and European Administrations, as well as professionals from many judicial 
and  non-judicial  sectors  across  all  27  Member  States.  This  includes  general  and 
specialized  lawyers,  judges,  media  and  press  associations,  members  of  national 
administrations, and other public servants. 

The feedback was collected during surveys carried out from mid September 2008 to 
mid October 2008, on a selected group of over 10,000 professionals across all 27 
EU  Member  States.  One  of  the  main  features  of  this  consultation  has  been  the 
detailed quality of the comments provided by the interviewees.  

Also,  27  National  Reports,  based  on  our  legal  and  contextual  research  on  the 
various national realities, are provided in this Study. 

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regards the law applicable to non-contractual obligations arising 
out of violations of privacy and rights relating to personality. 
JLS/2007/C4/028. Final Report 

The results 

The situation at the National level 

Non-contractual obligations arising out of violations of privacy and rights relating to 
personality need to take into account all interests, both private (such as the right to 
privacy)  and  public  or  mixed  ones  (as  it  could  be,  in  certain  cases,  the  right  of 
freedom of expression and of information). 

The  law  applicable  on  such  fundamental  Rights  as  the  right  to  privacy,  and  the 
freedom of expression varies notably across the Laws of the Member States. The 
reach and interaction of these two principles can be seen on the jurisprudence of 
the High Courts of these States, showing a difficult and imprecise balance between 
the  two.  Also  the  civil  and/or  penal  nature  of  the  damaging  facts  evidences  the 
divergence  between  the  existing  conceptions  at  the  National  Law  of  the  Member 
States  of  these  aspects.  Furthermore,  while  some  Member  States  already  have 
mature rules of law in these aspects, others have not. 

The  common  principles  reflected  at  the  Charter  of  Fundamental  Rights  of  the 
European  Union  and  the  Convention  for  the  Protection  of  Human  Rights  and 
Fundamental Freedoms, developed within the European Council, are not sufficient 
for overcoming the problems derived from the divergence at National Laws. 

Such  divergence  fosters  the  importance  of  the  applicable  Law  in  cross-border 
cases.  Determining  the  applicable  Law  in  this  type  of  cases  has  a  vital 
transcendence for implied stakeholders, since the final solution will depend on the 
protection given to the affected Rights, at the national Law of the applicable State. 

In  order to  determine  the  applicable  Law,  the  jurisdictional organ  handling  such a 
case will apply the rules of conflict available within his State. After excluding at the 
Rome  II  Regulation  the  non-contractual  obligations  arising  out  of  violations  of 
privacy and rights relating to personality, we nowadays still have 27 rules of conflict 
at the European Union. 

It is remarkable the divergence existing across such rules of conflict. Furthermore, 
most States do not foresee special rules of conflict for the matter. Most national 
Laws  include,  within  their  general  rules,  the  loci  delicti  commissi  criteria. 
However,  at  the  national  Laws  of  the  common  law,  we  can  still  find  the  double 
actionability rule. On its turn, we can also find substantial differences across the 
rules  of  conflict  of  those  States  that  foresee  the  application  of  the  loci  delicti 
commissi:  we  can  find  a  non-homogeneous  appearance  of  exceptions  to  the 
general rule, based on the residence or common nationality of the implied parties, 
on  the  limited  Free  will,  on  the  usual  residence  of  the  damaged  party  or  on  the 
existence of closer bonds with the Law of a certain State. 

Furthermore, the very interpretation of the general rule of loci delicti commissi at the 
National  Courts  is  not  uniform.  Violations  to  privacy  by  the  press  are,  in  many 
occasions,  distance  violations,  with  damages  occurring  simultaneously  at  several 
States.  This  makes  it  difficult  to  interpret  on  a  uniform  way  the  rule  of  loci  delicti 

6 

Divergence 

 
 
 
Comparative study on the situation in the 27 Member States as 
regards the law applicable to non-contractual obligations arising 
out of violations of privacy and rights relating to personality. 
JLS/2007/C4/028. Final Report 

Convergence 

The Survey 

commissi  and  increases  the  insecurity  of  the  subjects  participating  in  these 
relationships.  

Nevertheless, if there is a point where national rules of conflict do converge is that 
most of them apply the criteria of lex loci delicti commissi, and not the criteria of the 
country in which the editor is established for determining the applicable Law. 

The criteria of locus damni could be a good starting point for the elaboration of a 
unified rule of conflict across the EU. However, during the negotiations of the Rome 
II Regulation the positions presented by the directly affected stakeholders appeared 
as  totally  confronted.  Since  this  subject  was  excluded  from  the  final  Rome  II 
Regulation, at the present Study we have explored the alternative ways forward 
facilitating the overcoming of the current blocked situation, which results in a legal 
void. 

After analysing  the  situation  and  the  various  ways  forward,  our strategy  has  been 
based  on  the  performance  of  an  European  Survey,  addressed  to  National  and 
European  Administrations,  as  well  as  professionals  from  many  judicial  and  non-
judicial  sectors  (lawyers,  media  and  press  associations,  judges,  and  other  public 
servants) across all 27 EU Member States.  

During the drafting of the questionnaire of such Survey, we requested for the input 
and  recommendations  from  several  stakeholders,  making  special  stress  on  the 
ones from Press Associations, as one of the key confronted positions.  

The  final  Survey  was  sent  to  over  10.000  professionals,  obtaining  371  valid 
answers. Detailed results are presented across this Study. 

Cases of violations of privacy involving 
mass media are NOT frequent 

The  results  obtained  clearly  manifest  the  difficulty  of  reaching  a  consensus  on  a 
unified rule of conflict. The hypothetical rule of conflict should not prevail the right to 
privacy against the right to expression and of information, neither vice versa. 

One interesting Survey result is that it evidences that  these cases are really not 
frequent.  When  asked  how  many  of  these  cases,  involving  mass  media,  the 
interviewed knew about, across the last five years,  75,9% answered “none”, and 
the vast majority of the 24,1% left answered ―from 1 to 4‖. 

When deciding on the connexion point that the eventual rule of conflict should use, 
surveyed professionals show divided positions, although the vast majority of them 
show to be in favour of allowing the damaged party to choose on a law based on 
the criteria of locus damni. Nevertheless, Press and Media Associations position 
themselves  clearly  in  favour  of  the  criteria  of  the  country  in  which  the  editor  is 
established. 

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Comparative study on the situation in the 27 Member States as 
regards the law applicable to non-contractual obligations arising 
out of violations of privacy and rights relating to personality. 
JLS/2007/C4/028. Final Report 

Reaching a unified rule of conflict 
will require EC intervention 

It seems really difficult to reach a consensus, among the various existing interests. 
Thus, and in order to measure their feasibility and degree of acceptance as a start 
point for a future unified rule of conflict, we presented various models on the future 
rule of conflict to a subset of specialised stakeholders, in order for the professionals 
to  value  them.  None  of  the  models  reached enough  consensuses  in  order to be 
labelled  a  feasible  option.  The  model  with  more  consensus  was  the  first  model 
presented: it was a set of conflict-of-law rules based on the general criterion of lex 
loci  delicti  commissi.  Although  the  total  amount  of  favourable  feedback  was  only 
51,4% of the received answers, if we would focus on all other answers except those 
from  Press  and  Media  Associations,  we  would  see  that  almost  82%  of  these 
surveyed  professionals  consider  these  conflict-of-law  rules  to  be  acceptable, 
appropriate or very appropriate. 

In any case, the clear difficulty in reaching a common agreement on a unified rule of 
conflict  does  not  mean  that  the  best  solution  is  keeping  the  current  situation. 
Obtained survey results show clearly that the vast majority of professionals consider 
necessary  an  EC  intervention  on  this  subject.  85%  of  those  interviewed  position 
themselves  in  favour  of  the  adoption  of  a  unified  rule  of  conflict  for  all  the 
European Union. 

Recommendation 

Survey  results  show that,  in  the  absence  of a  minimum  harmonization  of  material 
substantive  Laws  of  the  Member  States,  nowadays  it  seems  difficult  to  reach  an 
agreement  acceptable  by  all  stakeholders  on  a  unique  common  rule  of  conflict. 
However,  the  Community  legislator  should  not  avoid  action,  since  there  is  a 
majority voice that requests a normative European action on this subject. 

In order to overcome the current situation of legal void we need to find a feasible 
alternative  for  building  an  agreement  based  on  a  meeting  point  of  the  various 
existing  interests.  The  solution  could  come  through  the  adoption  of  a  Directive 
incorporating,  on  one  hand,  a  material  regulation  of  the  minimum  necessary 
aspects (taking as a reference the justice parameters appearing at the  Charter of 
Fundamental  Rights  of  the  European  Union  and  the  Council‘s  Convention  for  the 
Protection of Human Rights and Fundamental Freedoms), and on the other hand a 
self-limited rule (rule of extension) based on the criteria of the country in which 
the  editor  is  established.  Only  a  minimal  material  harmonization,  ensuring  a 
standard of adequate protection in all Member States to those damaged by some 
mass  media  would  justify  the  adoption  of  the  criteria  of  the  country  in  which  the 
editor  is  established,  which  clearly  favours  the  position  of  the  authors  of  the 
damage.  Nevertheless,  this  solution  would  probably  find  the  obstacle  that  some 
Member  States  would  not  accept  an  EU  intervention  on  the  national  substantive 
rules on freedom of press/defamation, as per the limited competences of the EU in 
this area. 

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Comparative study on the situation in the 27 Member States as 
regards the law applicable to non-contractual obligations arising 
out of violations of privacy and rights relating to personality. 
JLS/2007/C4/028. Final Report 

This  solution  could  have  the  virtue  of  being  in  a  middle  position  between  the  key 
stakeholders. On one side, the law of the country in which the editor is established 
will be the only one that Mass media will need to know and take into account while 
executing their activities. On the other hand, the application of the law of the country 
in  which  the  editor  is  established  will  not  imply  a  manifested  damage  for  the 
plaintiffs, as whatever is finally the applicable law, this one will ensure the standard 
of protection determined by the Directive. 

The  proposed  solution  is  not  presented  here  as  a  definitive  and  final  one.  The 
adoption of a harmonizing Directive that would include an auto-limiting rule, based 
on the criteria of the country in which the editor is established, could be a first step 
that would allow a future fruitful negotiation of a unified rule of conflict based on the 
criteria of locus damni. Both alternatives are not self-excluding, but complementary 
actions that should coexist in a not so far future. 

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Comparative study on the situation in the 27 Member States as 
regards the law applicable to non-contractual obligations arising 
out of violations of privacy and rights relating to personality. 
JLS/2007/C4/028. Final Report 

2  FRAMEWORK OF THE STUDY 

2.1  CONTEXTUAL FRAMEWORK OF THE STUDY.  

The present study forms part of the action to be taken by the Commission under the 
specific  Civil  justice  programme,  which  is  in  the  process  of  being  adopted  by  the 
European Parliament and the Council as part of the general Fundamental rights and 
justice programme (2007-2013). 

On 11 July 2007 the European Parliament and the Council adopted the “Rome II” 
Regulation  on  the  law  applicable  to  non-contractual  obligations  (OJ  L  199, 
31.7.2007,  p.  40).  Under Article  1(2)(g),  “non-contractual obligations arising  out of 
violations  of  privacy  and  rights  relating  to  personality,  including  defamation”  are 
excluded from the Regulation‘s scope. 

As a result, conflict-of-law rules in this field are not harmonised at Community level 
and  the  courts  in  the  Member  States  continue  to  apply  their  own  private 
international law. 

This  situation  differs from  the  Commission‘s initial proposal,  Article 6  of  which  set 
out the following specific conflict-of-law rule: “Violations of privacy and rights relating 
to personality: 1. The law applicable to a non-contractual obligation arising out of a 
violation  of  privacy  or  rights  relating  to  personality  shall  be  the  law  of  the  forum 
where  the  application  of  the  law  designated  by  Article  3  would  be  contrary  to  the 
fundamental  principles  of  the  forum  as  regards  freedom  of  expression  and 
information. 2. The law applicable to the right of reply or equivalent measures shall 
be  the  law  of  the  country  in  which  the  broadcaster  or  publisher  has  its  habitual 
residence.” 

Nevertheless,  Article  30  of  the  Regulation  contains  a  review  clause,  with  Article 
30(2)  stipulating  as  follows:  “Not  later  than  31  December  2008,  the  Commission 
shall submit to the European Parliament, the Council and the European Economic 
and Social Committee a study on the situation  in the field of the law applicable to 
non-contractual obligations arising out of violations of privacy and rights relating to 
personality, taking into account rules relating to freedom of the press and freedom 
of expression in the media, and conflict-of-law issues related to Directive 95/46/EC 
of the European Parliament and of the Council of 24 October 1995 on the protection 
of  individuals  with  regard  to  the  processing  of  personal  data  and  on  the  free 
movement of such data”. 

In  addition,  a  Commission  statement  was  published  with  the  Regulation  in  the 
Official  Journal to the  effect  that:  “The  Commission,  following  the  invitation by  the 
European  Parliament  and  the  Council  in  the  frame  of  Article  30  of  the  “Rome  II” 
Regulation,  will  submit, not  later than  December 2008,  a  study  on  the  situation  in 

10 

 
 
 
 
 
 
 
 
 
Comparative study on the situation in the 27 Member States as 
regards the law applicable to non-contractual obligations arising 
out of violations of privacy and rights relating to personality. 
JLS/2007/C4/028. Final Report 

the field of the law applicable to non-contractual obligations arising out of violations 
of  privacy  and  rights  relating  to  personality.  The  Commission  will  take  into 
consideration  all  aspects  of  the  situation  and  take  appropriate  measures  if 
necessary.” 

The purpose of the Study was: 

(1)  to produce a comparative analysis of the situation in the 27 Member States as 
regards rules on the law applicable to non-contractual obligations arising out of 
violations of privacy and rights relating to personality, taking into account rules 
relating  to  freedom  of  the  press  and  freedom  of  expression  in  the  media  and 
conflict-of-law issues related to Directive 95/46/EC of the European Parliament 
and  of  the  Council  of  24  October  1995  on  the  protection  of  individuals  with 
regard  to  the  processing  of  personal data  and  on  the  free  movement  of  such 
data; and 

(2)  to identify any practical difficulties arising from the national rules in force in the 
Member States or from the absence of harmonisation at Community level and 
to identify any possible solutions to these difficulties. 

11 

 
 
 
 
 
 
 
 
Comparative study on the situation in the 27 Member States as 
regards the law applicable to non-contractual obligations arising 
out of violations of privacy and rights relating to personality. 
JLS/2007/C4/028. Final Report 

2.2   THE LEGAL BACKGROUND 

2.2.1  Introduction 

In accordance with the provisions of article 2 of the Treaty on European Union, one 
of the EU‘s objectives is to maintain and develop the Union as an area of freedom, 
security and justice, in which the free movement of people is assured and European 
citizens can assert their rights, enjoying guarantees equivalent to those they enjoy 
in the courts of their own country.   

In order to create a true European area of justice, in accordance with Articles 61 (c) 
and  65  of  the  Treaty  establishing  the  European  Community,  the  Community  is 
adopting measures for civil judicial cooperation insofar as necessary for the proper 
functioning of the internal market. At its meeting in Tampere on 15 and 16 October 
1999,  the  European  Council  acknowledged  the  mutual  recognition  principle  as  a 
cornerstone  of  the  judicial  cooperation  that  must  be  established  in  the  Union.  It 
called on the Council and the Commission to adopt a programme of measures to 
apply this principle by December 2000.   

the  Council  on  30  November  2000,  states 

The  joint  Commission  and  Council  programme  of  measures  to  implement  the 
principle of mutual recognition of decisions in civil and commercial matters, adopted 
that  measures  relating  to 
by 
harmonisation  of  conflict-of-law  rules  are  complementary,  that  they  facilitate  the 
application of the principle of mutual recognition of civil and commercial judgments. 
The  fact  that  the  courts  of  the  Member  States  apply  the  same  conflict  rules  to 
determine  the  law  applicable  to  a  practical  situation  reinforces  the  mutual  trust  in 
judicial decisions  given  in other Member States and  is a  vital element  in  attaining 
the  longer-term  objective  of  the  free  movement  of  judgments  without  intermediate 
review measures. The future Lisbon Treaty will reinforce this direction, furthering the 
community scope of this sector.  

This initiative relates to the Community harmonisation of private international law in 
civil and commercial matters that began late in the 1960s. On 27 September 1968, 
on  the  basis  of  the  fourth  indent  of  Article  293  (formerly  Article  220)  of  the  EC 
Treaty, the six founding states of the European Economic Community concluded a 
Convention  on  jurisdiction  and  the  recognition  and  enforcement  of  judgements  in 
civil and commercial matters (hereafter the ―Brussels Convention"). This was based 
on  the  idea,  already  described  in  the  EC  Treaty,  that  the  establishment  of  a 
common market implied the possibility of having a judgement given in any Member 
State recognised and enforced as easily as possible in another Member State. To 
facilitate the attainment of that objective, the Brussels Convention began by setting 
out  rules  identifying the  Member State  whose  courts have  jurisdiction  to hear and 
determine a cross-border dispute. 

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regards the law applicable to non-contractual obligations arising 
out of violations of privacy and rights relating to personality. 
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The mere fact that there are rules governing the jurisdiction of the courts does not 
generate reasonable foresee ability as to the outcome of a case being heard on the 
merits. The Brussels Convention and the ―Brussels I‖ Regulation that superseded it 
on 1 March 20011 contain a number of options that potentially make it possible for 
claimants to prefer this or that court. The risk is that parties will opt for the courts of 
one  Member  State  rather  than  another  simply  because  the  law  applicable  in  the 
courts of this state would be more favourable to them. This phenomenon, known as 
―forum shopping‖, is the result of an interaction between the international jurisdiction 
of  State  courts  and  the  issue  of  applicable  law.  Determination  of  international 
jurisdiction  being  an  issue that  takes  precedence  over  determination  of  applicable 
law, the first decision may determine the second insofar as the conflict rules applied 
by the potentially competent courts may be different.  

This is why work began on codifying the rules on conflicts of laws in the Community 
in  1967.  The  Commission  convened  two  meetings  of  experts  in  1969,  at  which  it 
was  agreed  to  focus  initially  on  questions  having  the  greatest  impact  on  the 
operation  of  the  common  market,  that  is,  the  law  applicable  to  tangible  and 
intangible  property,  contractual  and  non-contractual  obligations  and  the  form  of 
legal documents.   

On 23 June 1972, the experts presented a first preliminary draft convention on the 
law  applicable  to  contractual  and  non-contractual  obligations.  Following  the 
accession of the United Kingdom, Ireland and Denmark, the group was expanded in 
1973, and that slowed progress.  

In the end, in March 1978, the decision was taken to confine attention to contractual 
obligations so that negotiations could be completed within a reasonable time and to 
for  a  second  convention  on  non-contractual 
commence  negotiations 
obligations.  

later 

On  19  June  1980  the  Convention  on  the  law  applicable  to  contractual  obligations 
(the ―Rome Convention‖) was opened for signature, and it entered into force on 1 
April 1991.2 As there was no proper legal basis in the EC Treaty at the time of its 
signing, the convention takes the traditional form of an international treaty. But as it 
the 
was  seen  as 
complementarity  being  referred  to  expressly  in  the  Preamble,  it  is  treated  in  the 
same way as the instruments adopted on the basis of Article 293 (ex-220) and is an 
integral part of the Community acquis.  

the  Brussels  Convention, 

indispensable  adjunct 

the 

to 

Article  K.1(6)  of  the  Union  Treaty  (in  the  Maastricht  version)  classified  judicial 
cooperation in civil matters in the areas of common interest to the Member States of 
the European Union. In its Resolution of 14 October 1996 laying down the priorities 
for  cooperation  in  the  field  of  justice  and  home  affairs  for  the  period  from  1  July 

1 Council Regulation (EC) No 44/2001 of 22 December 2000, OJ L 12, 16.1.2001, p. 1, replacing the Brussels Convention of 
1968, of which a consolidated version was published in the Official Journal C 27, 26.1.1998, p. 1.  
2 The consolidated text of the Convention as amended by the various Conventions of Accession, and the declarations and 
protocols annexed to it, is published in OJ C 27, 26.1.1998, p. 34. 

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regards the law applicable to non-contractual obligations arising 
out of violations of privacy and rights relating to personality. 
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1996 to 30 June 1998,3 the Council of the European Union stated that it intended to 
concentrate on certain priority areas, which included in particular the ―launching of 
discussions on  the necessity  and  possibility  of drawing  up  ... a  convention on the 
law applicable to extra-contractual obligations‖. 

In  February  1998  the  Commission  sent  the  Member  States  a  questionnaire  on  a 
draft convention on the law applicable to non-contractual obligations. The Austrian 
Presidency held four working meetings to examine the replies to the questionnaire. 
It was established that all the Member States supported the need for an instrument 
on  the  law  applicable  to  non-contractual  obligations.  At  the  same  time  the 
Commission  financed  a  GROTIUS  project4  presented  by  the  European  Private 
International  Law  Group  (GEDIP)  to  examine  the  feasibility  of  a  European 
Convention on the law applicable to non-contractual obligations, which culminated 
in a draft text.5  

The Council's ad hoc ―Rome II‖ Working Party continued to meet throughout 1999 
under  the  German  and  Finnish  Presidencies,  examining  the  draft  texts  presented 
both by the Austrian Presidency and by Gedip.   

The  Amsterdam  Treaty,  which  entered  into  force  on  1  May  1999,  having  moved 
cooperation  in  civil  matters  into  the  Community  context,  an  Action  Plan  of  the 
Council and the Commission on how best to implement the provisions of the Treaty 
of Amsterdam on creating an area of freedom, security and justice was adopted on 
3 December 1998.6 This text recalls that principles such as certainty in the law and 
equal  access  to  justice  require,  among  other  things  ―clear  designation  of  the 
applicable law‖ and states in paragraph 40 that ―The following measures should be 
taken  within two  years after the entry into force of the  Treaty:  …  b) drawing up a 
legal instrument on the law applicable to non-contractual obligations (Rome II)‖. 

On 3 May 2002, the Commission launched consultations with interested circles on 
an  initial  preliminary  draft  proposal  for  a  ―Rome  II‖  Regulation  prepared  by  the 
Directorate-General  for  Justice  and  Home  Affairs.  The  consultations  prompted  a 
very  wide  response,  and  the  Commission  received  80  or  so  written  contributions 
from  the  Member  States,  academics,  representatives  of  industry  and  consumers‘ 
associations.7 The written consultation procedure was followed by a public hearing 
in Brussels on 7 January 2003, which gave rise to a draft Proposal for a Regulation 
on the law applicable to non-contractual obligations.8 

This  preliminary  proposal  was  replaced  by  a  second  amended  version  in  which, 
among  other  things,  Article  6  -  which  referred  to  violations  of  privacy  and  rights 
relating  to  the  personality  -  was  removed  from  the  scope  of  the  future  Rome  II 
Regulation.  The  final  text  of  the  Rome  II  Regulation,  recently  approved  and 

3 Official Journal C 319, 26 October 1996, p. 1. 
4 Project No GR/97/051. 
5 Accessible at http://www.drt.ucl.ac.be/gedip/gedip_documents.html. 
6 Official Journal C 19, 23.1.1999, p. 1. 
7 The contributions received by the Commission can be consulted at:   
http://europa.eu.int/comm/justice_home/news/consulting_public/rome_ii/news_summary_rome2_en.htm. 
8 COM(2003) 427 final 

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out of violations of privacy and rights relating to personality. 
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published in the Official Journal, therefore replaces Article 6 of the initial Proposal 
with Article 30, which urges the Commission to present a study to the Parliament, 
the  Council  and  the  European  Economic  and  Social  Committee  no  later  than  31 
December 2008 on the situation with regard to the law applicable to non-contractual 
obligations resulting from violations of privacy and rights relating to the personality, 
bearing in mind standards on freedom of the press and freedom of expression in the 
mass  media,  and  issues  on  conflicts  of  law  related  to  Directive  95/46/EC  of  24 
October  1995  on  the  protection  of  individuals  with  regard  to  the  processing  of 
personal data and on the free movement of such data.   

This  latter  task  became  the  specific  objective  of  the  research  project  presented 
below. 

2.2.2  International Legal Juridistion. Regulation 44/2001 

-Material scope of special jurisdiction 

In matters of delict or quasi-delict, there is the potential or option of three paths for 
choosing  the  court  of  jurisdiction:  by  virtue  of  articles  2,  23  and  24  of  Regulation 
44/2001 on   jurisdiction and the recognition and enforcement of judgments  in civil 
and  commercial  matters  (hereinafter  R  44/2001),  the  competent  courts  shall  be 
those of the Member State in which the defendant is domiciled or those to which the 
parties  have  submitted,  under  the  terms  established  in  articles  23  and  24  of  R 
44/2001. Secondly, by virtue of Article 5.3 of  R 44/200,1 the competent courts shall 
be  those  of  the  place  where  the  harmful  event  occurred,  provided  the  defendant 
was domiciled in a Member State.  

Where  it  relates  to  a  civil claim  for damages or restitution  based  on  an  act  giving 
rising to criminal proceedings, the competent court shall be that which was seized of 
those proceedings, to the extent that the court has jurisdiction under its own law to 
entertain civil proceedings (art. 5.4 R 44/2001). 

The choice is that of the plaintiff, when bringing the case. The possibility of choosing 
the  jurisdiction  runs  the  risk  of  forum  shopping  and  consequently  also  of  law 
shopping, as the plaintiff‘s choice may be guided by the law that is most favourable 
to him.   

-Autonomous concept of matters of delict or quasi-delict in Article 5.3. 

Even though the European Court of Justice ruling of 30 November 1976 in Mines de 
Potasse d„Alsace referred implicitly to the need for an autonomous interpretation of 
matters of delict or quasi-delict, it was not until the ECJ ruling of 27 September 1988 
in  Kalfelis  that  this  need  was  explicitly  stated.  The  aim  of  establishing  an 
autonomous  interpretation  of  the  concept  of  delict  or  quasi-delict  is  to  ensure  the 
efficacy  of  the  1968  Brussels  Convention  on  jurisdiction  and  the  enforcement  of 
judgements in civil and commercial matters, and to guarantee a uniform solution in 

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out of violations of privacy and rights relating to personality. 
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this regard, given the significant differences existing between the different Member 
States‘ codes.  

By  virtue  of  an  ECJ  ruling  of  17  June  1992,  in  Jackob  Handte  v.  Mécano-
Chimiques,  the  autonomous  concept  of  matters  relating  to  delict  or  quasi-delict 
includes ―all actions which seek to  establish the liability of a defendant which are 
not  related  to  a  contract",  this  latter  being  a  situation  whereby  there  is  a  freely 
agreed commitment made by one party to another. Article 5.3 is thus of a residual 
nature,  being  applicable  when  an  obligation  is not  included  within  Article  5.1 of R 
44/2001. 

As can be seen, the distinction between liability for contractual and non-contractual 
matters  is  a  fine  one  and  differentiating  between  them  can  cause  difficulties.  The 
ECJ has stated that the residual nature of article 5.3 of  R 44/2001 does not imply 
that  the  contractual  forum  is  applicable  to  actions  related  to  a  contract  but  with  a 
delictual basis.   

-Legal qualification of the place where the harmful event or unlawful action against 
privacy occurred or may occur 

Specifying the ―place of harmful event‖ presents some difficulties in the event of a 
difference  between  the  place  where  the  harmful  event  originates  and  the  place 
where  the  damage  is  sustained  (in  the  case  of  remote  unlawful  acts)  and  in  the 
event of harm occurring in different areas of a number of States (multiple places of 
harm).  

Among  the  cases  of  multiple  location  of  harm  or  where  the  unlawful  act  caused 
harm to the same victim in different places, the ECJ ruling of 7 March 1995 can be 
highlighted,  in  Shevill,  Ixora  Trading  Inc;  Chequepoint  SARL,  Chequepoint 
International  Ltd.  v  Press  Alliance  S.A,  related  to  unlawful  invasion  of  a  person's 
privacy.  In  this  case,  the  place  of  the  harmful  event  was  the  place  where  the 
publisher of  the  newspaper  in  question  was  established,  since that  was  the  place 
where  the  harmful  event  originated,  and  from  which  the  defamation  was  made 
known and circulated, and this court therefore had jurisdiction to hear the action for 
damages for all of the harm sustained due to the unlawful act.   

As this forum generally coincides with that of the domicile of the defendant, in order 
to avoid rendering art. 5.3 of R 44/2100 meaningless the ECJ also recognises the 
jurisdiction of the courts of each of the States in which the defamatory publication 
was  distributed  to  rule  on  the  case,  solely  for  damages  suffered  within  their 
jurisdiction,  given  that  they  would  not  be  competent  to  hear  a  case  for  damages 
suffered abroad either at the place where the harmful event originated or where the 
harm occurred. To avoid fragmentation of the lawsuit, the victim may focus all his 
actions on the court of the defendant‘s domicile (art. 2 R 44/2001) or the courts of 
the State where the harmful event occurred (art. 5.3 R 44/2001). 

With  this  solution,  the  injured  party  loses  the  choice  granted  by  Article  5.3  of    R 
44/2001, and more generally between the defendant‘s forum and the place where 
the  harmful  event  occurred,    as  these  will  in  practice  coincide.  To  avoid  this 

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out of violations of privacy and rights relating to personality. 
JLS/2007/C4/028. Final Report 

inconvenience  to  the  injured  party  and  to  guarantee  him  a  real  option  of  a  favor 
damni  jurisdiction,  the  courts  of  one  of  the  places  where  the  harmful  event  was 
manifested  could  have  also  been  considered  competent  with  regard  to  damages 
suffered in other States, by virtue of the fact that they are all connected to a same 
causal event. The causal relationship between the event and the damage, which is 
not  of  a  geographical  but  rather  of  a  legal  nature,  would  justify  both  the  global 
jurisdiction of the place of the event and that of any of the places of damage. The 
basic problem is that a relaxation of the Article 5.3 R 44/2001 jurisdiction through a 
choice  between  the  place  where  the  event  originated  and  the  places  where  the 
harm  occurred  may  be  an artificial one  in  unlawful violations  of  privacy, given the 
difficulty  of  establishing  the  places  of  origin and harm.  In  a  newspaper libel case, 
the place of origin of the event may be the place where the publisher is established 
but also the place of publication or distribution. This latter, which may be different 
from the publisher's establishment, could also be the place where the harm begins 
to concretely materialise.  

Even  greater  difficulty  arises  when  an  invasion  of  privacy  takes  place  over  the 
Internet,  given  the  incompatibility  between  territoriality  inherent  to  exercise  of 
jurisdiction and a reality in which physical space does not exist. 

The permeability of event/harm categories in invasions of privacy and the artificial 
nature  of  a  location  based  on  these  categories  leads  us  to  seek  solutions  more 
appropriate  to  the  specific  nature  of  what  is  being  protected.  The  proposal  that 
enjoys greatest academic acceptance is that of the habitual residence of the victim, 
insofar as it is the place where the unlawful act took place as a whole, that is, in its 
different  constituent  elements,  regardless  of  the  difference  between  event  and 
harm, or as the place of harm. The place of harm is thus located in the place where 
the  person  suffers  the  harm,  in  the  legal  jurisdiction  in  which  the  victim‘s  moral 
imbalance has taken place. By treating it as intangible damage related to a person, 
it can only be located where the person is located.   

The  forum  actoris,  however,  has been  ruled  out  by  the  ECJ and does  not  always 
result in solutions appropriate to the reality, when the person is not known in their 
State of domicile or the unlawful act has not caused harm there.   

2.2.3  Applicable law 

International standards of law applicable in this regard are marked by the break up 
or  atomization  of  regulatory  responses  with  regard  to  non-contractual  obligations. 
Given  the  difficulties  in  defining  the  material  scope  of  non-contractual  obligations 
and  the  lack  of  any  one  appropriate  solution,  inspired  moreover  by  delictual  and 
quasi-delictual  obligations  for  events  of  such  heterogeneity,  comparative  law 
currently tends to break up the concept and to design a framework of standards of 
private  international  law  for  different  events  which,  within  each  legal  system,  give 
rise  to  and  support  a  legal  relationship  other  than  the  contractual.  Hence  the 

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proposal  for  a  future  Community-level  harmonization  that  offers  greater  legal 
security to cross-border events in this regard.   

Unlawful  acts  form  a  homogeneous  and  coherent  whole  that  give  rise  to  a  single 
status, a delictual status governed by a single law (the law of the place where the 
causal event occurred). But diversification of the role of civil liability has given rise to 
special statuses for different activities that cause harm to economic and social life. 
There has been an atomisation of delictual obligation and a breakdown in the unity 
of the system which means that personal rights (interference in rights relating to the 
personality  or  privacy)  escape  through  conventional  means  or  through  internally 
produced standards for the material jurisdiction of the general regulation.   

i.  The Rome II Regulation 

Regulation  864/2007  of  the  European  Parliament  and  of  the  Council  on  the  law 
applicable 
to  non-contractual  obligations  (Rome  II),  recently  approved  and 
published  in  the  Official  Journal  of  11  July  2007,  was  anticipated  in  the  Vienna 
Action Plan on how best to implement the provisions of the Treaty of Amsterdam on 
an area of freedom, security and justice (paragraph 40b) and in the  Programme of 
Mutual Recognition (paragraph 11B3)9. The Hague Programme10 also urged further 
active work on conflict-of-law rules with regard to non-contractual obligations.  

Rome II is intended to be a natural extension of the unification of the rules of private 
international  law  relating  to  obligations  in  civil  or  commercial  matters  in  the 
Community.  The  main  objective  of  these  measures  is  to  guarantee  that  a  legal 
situation is tried according to the same legislation, regardless of the judge hearing 
the case and the Member State in question, which will contribute to creating a true 
legal European area. With the approval of this Regulation, it is hoped to harmonize 
to 
the  conflict-of-law  rules  with  regard 
complement  the  instruments  already  in  force,  namely  Regulation  44/2001  on 
jurisdiction  and  the  recognition  and  enforcement  of  judgments  in  civil  and 
commercial  matters  and  the  1980  Rome  Convention  on  the  law  applicable  to 
contractual  obligations.  And  thus  to  move  towards  a  harmonization  of  all  private 
international  law  in  terms  of  obligations,  both  contractual  and  non-contractual, 
relating to civil or commercial matters.  

to  non-contractual  obligations  and 

The Rome II Regulation combines both flexible rules establishing the applicable law 
and the material jurisdiction of particular unlawful acts. But the issue of concern to 
us is expressly excluded from its scope by means of art. 1.2.g,:  

1.2. “The following shall be excluded from the scope of this Regulation: 

g)  non-contractual  obligations  arising  out  of  violations  of  privacy  and  rights 

relating to   personality, including defamation” 

9 Official Journal C 12 of 15.1.2001 
10 Official Journal C 53 of 3.3.2005, p. 1 

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out of violations of privacy and rights relating to personality. 
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This exclusion arises from an amendment made to the  Draft Proposal11, article 6 of 
which  addressed  Violations  of  privacy  and  rights  relating  to  the  personality.  The 
Draft  Proposal  followed  the  approach  generally  taken  by  the  law  of  the  Member 
States  nowadays  and  classified  violations  of  privacy  and  rights  relating  to  the 
personality,  particularly  in  the  event  of  defamation  by  the  mass  media,  as  falling 
within  the  category  of  non-contractual  obligations  rather  than  matters  of  personal 
status, except as regards rights to the use of a name. 

But  later,  prior  to  the  presentation  of  amendment  57  to  the  Draft  Proposal  in  the 
amended Proposal dated 21 February 200612, the Commission decided that since it 
was  not  possible  to  reconcile  the  text  of  the  Council  with  that  adopted  at  its  first 
reading by Parliament, the most acceptable solution would be to exclude all press 
and related offences from the amended proposal and delete Article 6 of the original 
Proposal. Another factor in the decision to exclude this matter was undoubtedly the 
different material and conflictual regulations in the EU States. 

For this reason, Article 6 of the Rome II Regulation was substituted by Article 30.2 
in the final approved text, which states that:   

“Not  later  than  31  December  2008,  the  Commission  shall  submit  to  the 
European   Parliament,  the  Council  and  the  European  Economic  and  Social 
Committee a study on  
the situation in the field of the law applicable to non-
contractual obligations arising out of   violations  of  privacy  and  rights  relating  to 
personality, taking into account rules relating to  
freedom  of  the  press  and 
freedom of expression in the media, and conflict-of-law issues  related  to  Directive 
95/46/EC of the European Parliament and of the Council of 24  October 1995 on the 
protection of individuals with regard to the processing of personal  
data  and  on 
the free movement of such data”. 

By excluding these obligations from the scope of the Regulation, events that take 
place  in  the  scope  of  material  application  will  continue  to  be  governed  by 
conventional or internal rules of private international law already in force in the 27 
Member States‘ different codes. Hence the importance of studying their similarities 
and,  essentially,  the  problems  caused  by  existing  differences  in  each  State‘s 
internal regulations.   

ii.  Convention  108  of  the  European  Council  on  the  Protection  of  Individuals  with 
regard to Automatic Processing of Personal Data 

Convention 108 of the European Council was approved on 28 January 1981 for the 
protection of individuals with regard to Automatic Processing of Personal Data13, the 
first  European  convention  to  set  out  guidelines  for  a  common  model  of  data 
protection. The Convention aims to extend the protection of fundamental rights and 
freedoms and, concretely, the right to privacy, bearing in mind the increased cross-
border circulation of computerized personal data14. 

11 Brussels, 22.7.2003. COM(2003) 427 final 
12 COM (2006) 83 final 
13 OSJ 15 November 1985 
14 The status of membership of this convention can be viewed at: 

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Chapter  2  of  this  convention  covers  basic  principles  for  data  protection:    the 
principle  of  fairness,  the  principle  of  accuracy,  of  purpose,  of  ownership,  of  non-
abusive use, of the right to ‗oblivion‘, of publicity, of individual access, of safety, of 
prohibition  of  automatic  processing  of  data  that  reveals  racial  origin,  political 
opinion,  religious  conviction  etc.,  along  with  data  on  health  or  sexual  life,  unless 
domestic law provides appropriate safeguards. 

Plus a system of sanctions that remains in the hands of the States Party. In fact, the 
Convention leaves completely open the issue of not only the type of sanctions that 
may be anticipated but also the legal sector they fall within in each State. 

iii. Directive 95/46/EC 

On  the  basis  of  the  principles  of  the  above  mentioned  Convention,  Directive 
95/46/EC of the Parliament and of the Council was approved on 24 October 1995, 
on the protection of individuals with regard to the processing of personal data and 
on the free movement of such data15. 

Directive 95/46/EC was approved out of a desire to approximate State legislations 
in the area of personal data protection in the Member States. As stated in Recital 
Number  11  of  the  Directive,  the  principles  of  the  protection  of  the  rights  and 
freedoms  of  individuals,  notably  the  right  to  privacy,  that  are  contained  in  this 
Directive,  give  substance  to  and  amplify  those  contained  in  the  previously 
mentioned Convention. 

Directive 95/46/CE on the protection of individuals with regard to the processing of 
personal data and on the free movement of such data contains general provisions 
guaranteeing  that  interested  parties  will  be  informed  of  their  rights  regarding  data 
protection.   

These requirements appear in the following articles: 

•  Article  6(1)(a),  which  establishes  that  personal data must  be  handled  ―fairly and 
lawfully‖; 
• Article 10, which establishes the minimum information that must be provided to the 
data subject when data is collected directly from them. 
• Article 11, which lists the minimum information that must be provided to the data 
subject when the data is obtained from third parties. 
•  Article  14,  which  establishes  the  requirement  to  inform  the  data  subject  before 
communicating their personal data to third parties. 

The  general  requirements  of  the  Directive  differentiate  between  two  types  of 
information: 

http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=108&CM=1&DF=&CL=ENG 
15 Later supplemented by Directive 2002/58/EC on privacy in electronic communications. 

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a)  Essential  information:  the  identity  of  the  information  processor  and,  where 
appropriate,  its  representative,  the  aim  of  the  data  processing,  except  when  the 
data subject already has this information;  
b) Any ―other information‖, relating to the data recipients, the obligation to respond 
and the existence of access and rectification rights insofar as, bearing in mind the 
specific  circumstances  under  which  the  data  was  obtained,  said  additional 
information is necessary to guarantee a fair handling of the data in respect of the 
data subject. 

In  a  Commission  report  entitled  ―First  report  on  the  implementation  of  the  Data 
Protection  Directive  (95/46/EC)‖16,  the  application  of  these  provisions  of  the 
Directive  was  examined  with  regard  to  information.  The  report  concluded  the 
following:  

“The  implementation  of  Articles  10  and  11  of  the  Directive  showed  a  number  of 
divergences.  To  some  extent  this  is  the  result  of  incorrect  implementation,  for 
instance when a law stipulates that additional information must always be provided 
to  the  data  subject,  irrespective  of  the  necessity  test  the  Directive  foresees,  but 
also stems from divergent interpretation and practice by supervisory authorities”.  

In  fact,  the  laws  of  Member  States  differ  considerably  with  regard  to  the  type  of 
information that must be provided, and how and when it must be provided. 

There  are  also  differences  in  terms  of  the  type  of  additional  information  that  may 
need  to  be  provided  to  guarantee  fair  handling.  Some  Member  States  repeat  the 
examples  given  in  the  Directive,  others  give  slightly  different  examples  and  some 
give no examples at all. Although some Member States are adapting substantially to 
the requirements of the Directive, others are straying considerably from them.   

In the technical analysis of the transposition of Directive 95/46 in the Member States 
that is annexed to the First report on its transposition, the Commission offers more 
detailed information on national legislation: 

(http://europa.eu.int/comm/internal_market/privacy/lawreport/data-directive_en.htm) 

For  its  part,  the  Flash  Eurobarometer  2003  survey  came  to  the  following 
conclusions  with  regard  to  measures  on  invasion  of  privacy  and  protection  of  the 
private life of individuals and data circulation.  And ratified:  

 The need to promote conformity throughout the EU   
 The need to improve public awareness with regard to data protection rights 
 The  need  to  present  information  with  significant  and  adequate  content  with 
regard to the situation in which the data collection takes place  
 The need to improve the quality of data protection from the point of view of the 
data subjects 

16 COM (2003) 265 final 

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The interest in making progress on harmonization of the law applicable to invasion 
of privacy and the private life of individuals, as well as personal data protection, has 
also  been  emphasised  in  many  study  days,  such  as  that  held  in  Berlin  in  March 
2004,  which  brought  together  members  of  the  general  public  and  private  sector 
experts  interested  in  taking  as  a  basis  the  Resolution  of  the  25th  International 
Conference  and  the  26th  International  Conference  on  Privacy  and  Personal  Data 
Protection  held  in  Wroclaw  (Poland)  at  which,  in  September  2004,  research  was 
presented that showed the need for more user-friendly information on privacy and 
fair handling. 

2.2.4  An ex-ante approximation of the problems of the rules of 

law applicable.    

There are specific provisions on respect for privacy and freedom of expression and 
information, also covering respect for media freedom and pluralism, in the Charter 
of  Fundamental  Rights  of  the  European  Union  and  in  the  Council  of  Europe 
Convention  on  the  Protection  of  Human  Rights  and  Fundamental  Freedoms.  The 
Community  institutions  and  the  Member  States  are  required  to  respect  these 
fundamental  values.  The  European  Court  of  Human  Rights  has  already  given 
valuable pointers to how to reconcile the two principles in the event of defamation 
proceedings.  

International conventions have helped to approximate the rules governing freedom 
of the press in the Member States but differences remain as regards the practical 
application  of  that  freedom.  Operators  regard  the  foresee  ability  of  the  law 
applicable to their business as of the greatest importance. 

A study of the conflict rules in the Member States shows not only the diversity in the 
solutions adopted but that there is also considerable uncertainty as to the law. In the 
absence of codification, court decisions laying down general rules are still lacking in 
many Member States.   

The  connecting  factors  in  the  other  Member  States  vary  widely:  the  publisher'  s 
headquarters or the place where the product was published (Germany and Italy, at 
the victim' s option); the place where the product was distributed and brought to the 
knowledge  of  third  parties  (Belgium,  France,  Luxembourg);  the  place  where  the 
victim  enjoys  a  reputation, presumed to  be  his habitual residence  (Austria). Other 
Member States follow the principle of favouring the victim, by giving the victim the 
option  (Germany,  Italy),  or  applying  the  law  of  the  place  where  the  damage  is 
sustained  where  the  lex  loci  delicti  does  not  provide  for  compensation  (Portugal). 
The UK solution is very different from the solutions applied in other Member States, 
for  it  differentiates  depending  whether  the  publication  is  distributed  in  the  UK  or 
elsewhere:  in  the  former  case  the  only  law  applicable  is  the  law  of  the  place  of 
distribution;  in  the  latter  case  the  court  applies  both  the  law  of  the  place  of 
distribution  and  the  lex  fori  ("double  actionability  rule").  This  rule  protects  the 

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regards the law applicable to non-contractual obligations arising 
out of violations of privacy and rights relating to personality. 
JLS/2007/C4/028. Final Report 

national press, as the English courts cannot give judgment against it if there is no 
provision for this in English law17. 

Given  the  diversity  and  the  uncertainties  of  the  current  situation,  harmonising  the 
conflict rule in the Community will increase certainty in the law. 

The content of the uniform rule must reflect the rules of international jurisdiction 
in the "Brussels I" Regulation. The effect of the previously mentioned  Mines de 
Potasse  d'Alsace  and  Fiona  Shevill  judgments18  is  that  the  victim  may  sue  for 
damages either in the courts of the State where the publisher of the defamatory 
material is established, which have full jurisdiction to compensate for all damage 
sustained, or in the courts of each State in which the publication was distributed 
and  the  victim  claims  to  have  suffered  a  loss  of  reputation,  with  jurisdiction  to 
award damages only for damage sustained in their own State. Consequently, if 
the victim decides to bring the action in a court in a State where the publication is 
distributed, that court will apply its own law to the damage sustained in that State. 
But if the victim brings the action in the court for the place where the publisher is 
headquartered,  that  court  will  have  jurisdiction  to  rule  on  the  entire  claim  for 
damages: the lex fori will then govern the damage sustained in that country and 
the  court  will  apply  the  laws  involved  on  a  distributive  basis  if  the  victim  also 
claims compensation for damage sustained in other States. 

In view of the practical difficulties in the distributive application of several laws to 
a  given  situation,  the  Commission  proposed,  in  its  draft  proposal  for  a  Council 
Regulation  of  May  2002,  that  the  law  of  the  victim'  s  habitual  residence  be 
applied. But there was extensive criticism of this during the consultations, one of 
the grounds being that it is not always easy to ascertain the habitual residence of 
a  celebrity  and  another  being  that  the  combination  of  rules  of  jurisdiction  and 
conflict  rules  could  produce  a  situation  in  which  the  courts  of  the  State  of  the 
publisher'  s  establishment  would  have  to  give  judgment  against  the  publisher 
under  the  law  of  the  victim'  s  habitual  residence  even  though  the  product  was 
perfectly in conformity with the rules of the publisher's State of establishment and 
no single copy of the product was distributed in the victim' s State of residence.   

In  Fiona  Shevill  mentioned  above,  the  Court  of  Justice  ruled  on  the  actual 
determination  of  the  place  where  the  damage  was  sustained  in  the  event  of 
defamation  by  the  press,  opting  for  the  "State  in  which  the  publication  was 
distributed and where the victim claims to have suffered injury to his reputation". 

The  place  where  a  publication  is  distributed  is  the  place  where  it  comes  to  the 
knowledge  of  third  parties and  a  person'  s  reputation is liable  to  be  harmed.  This 
solution is in conformity with the victim's legitimate expectations without neglecting 

17 Some academic writers in England doubt, however, whether invasions of privacy are also covered 
by this rule. 
18 ECJ, ruling of 7 March 1995, Case C 68/93, Fiona Shevill and others. V Press Alliance S.A. 
p. I - 415 

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regards the law applicable to non-contractual obligations arising 
out of violations of privacy and rights relating to personality. 
JLS/2007/C4/028. Final Report 

those of media firms. A publication can be regarded as distributed in a country only 
if is actually distributed there on a commercial basis 

But the Commission has been sensitive to concerns expressed both in the press 
and  by  certain  Member States  regarding  situations  in  which  a  court in  Member 
State  A  might  be  obliged  to  give  judgment  against  a  publisher  with  its  own 
nationality  A  under  the  laws  of  Member  State  B,  or  even  a  third  country,  even 
though  the  publication  in  dispute  was  perfectly  in  conformity  with  the  rules 
applicable in Member State A. It has been pointed out that the application of law 
B  could  be  unconstitutional  in  country  A  as  violating  the  freedom  of  the  press. 
This emphasises the sensitive nature of this issue, in which the Member States' 
constitutional rules diverge quite considerably. 

The difficulties surrounding this debate increased during the process of drafting the 
Rome II Regulation and finally gave rise to the removal of violations of privacy and 
rights relating to the personality from the Regulation.   

An  analysis  of  the  similarities  and  practical  difficulties  arising  from  the  differences 
between different legislations in this area within the 27 Member States would enable 
us to venture possible solutions and consider the viability of harmonizing the rules 
of  law  applicable  in  this regard  and thus  mitigate  the inconveniences  that arise  in 
cross-border relations. The results of this analysis, together with the analysis of the 
feedback  got  from  hundreds  professionals  involved  are  presented  in  the  coming 
sections of this Study. 

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regards the law applicable to non-contractual obligations arising 
out of violations of privacy and rights relating to personality. 
JLS/2007/C4/028. Final Report 

3  STUDY METHODOLOGY 

3.1  METHODOLOGY 

In order to measure the national differences as well as the different points of view 
from  all  implied  professionals,  we  based  our  Study  in  two  areas:  an  empirical 
analysis and a legal analysis, described below. 

The  first  one  is  mainly  involved  in  gathering  documents  (legal  research)  and 
opinions  (massive  Survey campaigns) on  the  situation,  at  various  levels and  from 
different  sources.  The  legal  analysis  lays on  the  examination  of  the different  legal 
situations,  national  contexts,  and  different  points  of  view,  at  the  light  of  expert 
academics.  

3.1.1  Introduction 

The comparative analysis on the situation in the 27 Member States as regards the 
law applicable to non-contractual obligations arising out of violations of privacy and 
rights  relating  to  personality,  taking  into  account  the  issues  related  to  Directive 
95/46/EC commenced with a documentary analysis, and followed with the gathering 
of  statistical  data  taken  from  interviews  and  questionnaires  involving  persons 
employed in the legal professions associated directly with the subject of the study. 

To  this  end,  an  initial  selection  was  made  of  a  set  of  individuals  and  institutions 
whose expertise and knowledge of the law applicable to non-contractual obligations 
arising out of a violation of privacy or rights relating to personality,  as well as the 
Directive and its application. On this way we ensured that we could gather reliable 
information for carrying out a genuine analysis of the comparative situation in the 27 
Member States and the practical difficulties arising from the application of national 
rules or from the absence of harmonization at Community level.  

The  comparative  analysis  of  the  situation  regarding  the  applicable  law  to  privacy 
and  rights  relating  to  personality  had  to  take  into  account  of  the  degree  of 
compliance  with  the  objectives  pursued  and,  in  this  respect,  we  analyzed  from  a 
comparative perspective: 

- The  law  applicable  to  non-contractual  obligations  arising  out  of  violations  of 
privacy and rights relating to personality, both private national and international 
law. 

- The rules related to the freedom of the press and freedom of expression in the 

media,  

- The conflict-of-law issues related to Directive 95/46, 

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regards the law applicable to non-contractual obligations arising 
out of violations of privacy and rights relating to personality. 
JLS/2007/C4/028. Final Report 

- The  practical  difficulties  arising  from  the  national  rules  or  from  absence  of 

harmonization 

- The possible solutions to these difficulties. 

3.1.2  Methodological summary 

We understood that current Study had two work areas clearly differentiated, as well 
as its objective universe. Therefore, divided the Study in two areas:  

-  an empirical analysis on the current situation in the 27 Member States, and  
-  a legal analysis  including a description of the internal rules of all 27 Member 

States with results and recommendations. 

Empirical Analysis 

-  WP  1  -  Documentary  Analysis:  Collecting  and  analysing  legal  reference 
documents:  on  national  regulations,  Community  law,  case  law  and  legal 
doctrine. 

-  WP  2  -  Quantitative  Analysis:  Gathering  statistical  data  from  courts  and 

judges on the number of related court cases. 

-  WP 3 - Qualitative Analysis: Concerning the practical difficulties arising from 
the  application  of  the  law  as  it  stands.  Addressed  in  the  form  of  Surveys  to 
several types of professions involved. Performed across all the 27 EU Member 
States.  Over  10.000  people  were  invited  to  answer  our  Surveys.  We 
successfully completed over 370 Surveys. 

Legal Analysis 

-  Legal analysis of the working documents, of the quantitative results and of the 

survey conclusions. 

-  Creation  of  a  Synthesis  Report  including  a  description  and  analysis  of  the 
National  situations  in  the  Member  States;  an  identification  of  difficulties  at 
Community level and proposals of solutions for such difficulties 

A further description follows, for the empirical analysis: 

I. Empirical Analysis 

In  order  to  identify  the  current  situation  in  the  Member  States,  we  collected  legal 
reference documents, statistical data and conducted a survey. 

WP 1: Documentary Analysis (Collecting legal reference documents): 

We  gathered  legal  material  related  to  the  privacy  and  the  rights  relating  to 
personality:    regulations  of  private  national  and  international  law  in  each  Member 

26 

 
 
 
 
 
 
 
 
 
 
 
 
 
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out of violations of privacy and rights relating to personality. 
JLS/2007/C4/028. Final Report 

State,  regulations  of  Community  law,  case  law  and  exiting  legal  doctrine  on  the 
subject.  The  search  was  mainly  carried  out  through  the  database  of  Supreme 
Courts in the Member States, as well as other sources of information included in our 
bid to the Commission. Furthermore, our Network of Correspondents across the EU 
played a key role in this WP, providing us the guidelines and necessary references 
in order to optimize the research. 

WP 2: Quantitative Analysis (Collecting Statistical Data): 

We  collected  statistical  data  on  the  issues  set  at  the  Call  text.  We  contacted  the 
competent authorities regarding the privacy and rights relating to personality and 
used our contacts and Network of Correspondents to address those countries that 
have not yet delivered some of the contact data on competent authorities. We made 
all  other  reasonable  efforts  in  order  to  obtain  the  most  complete  set  of  data 
possible.  

WP 3: Qualitative Analysis (Conducting Surveys) 

Surveys  concerning 
interviews with the professions involved in the subject. 

the  personal-data  protection  were  conducted 

through 

Issues: 

The surveys were aimed to define any practical difficulty arisen from the application 
of current law regarding the privacy and rights relating to personality, including the 
application  of  the  Directive  95/46,  as  well  as  the  cause  and  nature  of  these 
difficulties.  

  Selection of persons interviewed: 

The  selection  of  the  persons  interviewed  had  to  be  representative  and  balanced, 
and  was  a  key  aspect  in  the  survey  methodology.  Consequently,  the  professions 
involved  in  the  privacy  and  rights  relating  to  personality  protection  were  covered 
adequately and proportionally. They were: 

  Members of National Administrations 

Attorneys 
Specialized Lawyers 
Judges 
Data protection authorities 
  Media and press associations 

Concerning  this  last  group,  and  taking  into  account  their  special  interest  on  the 
Study subject, we designed ways in order to ensure that their opinion would have a 
proportional impact on the total of Survey answers. Otherwise, the amount of total 
answers from Media and press associations could jeopardize the average opinions 
(e.g.: getting 200 answers from Media and press associations and only 100 from all 
the  rest  of  profiles  combined  -attorneys,  judges,  etc-).  Thus,  we  performed  a 
random selection of Media and press associations across the EU. This means that 

27 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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regards the law applicable to non-contractual obligations arising 
out of violations of privacy and rights relating to personality. 
JLS/2007/C4/028. Final Report 

at  the  list  of  all  existing  associations,  we  gave  a  number  to  each  of  them,  and  a 
random software functionality made the selection of which ones to invite. 

3.1.3  The timing 

A formal kick-off meeting was held at JLS premises in Brussels on April 22nd. We 
started our legal research at mid April, and with the National Reports on mid May. 
By the end of May, the Final Methodology for the project was issued. 

By  the  beginning  of  July  we  already  had  a  global  view  of  the  situation,  and  had 
completed  the  drafting  of  adequate  Questionnaires  for  the  Surveys  to  measure 
qualitative  and  quantitative  aspects.  Apart    than  the  logic  revision  by  the  Project 
Officer,  we  also  sent  the  first  version  of  the  main  Survey  questionnaire  to  the 
European  Data  Protection  Authority,  as  well  as  to  sixteen  Press  and  Media 
Associations  and  entities,  in  order  for  them  to  review  it,  before  launching,  and 
provide feedback and suggested modifications to fit also their point of view. 

We  closed  the  reception  of  all  comments  at  the  end  of  July,  having  received 
comments  from  the  European  Data  Protection  Authority,  and  from  four  Press 
associations  (The    European  Publishers  Council,  the  European  Newspaper 
Publishers'  Association  –ENPA-,  the  Society  of  Editors,  and  The  European 
Federation  of  Magazine  Publishers).  We  analyzed  all  received  feedback  and 
comments,  incorporating  some  of  them  at  our  Final  Questionnaires.  Concerning 
Press Associations‘ feedback, most of them referred to the elimination of a concrete 
question, and the modification of another. Both suggestions were incorporated into 
the Final Questionnaire. 

We created three questionnaires for our Survey: 

Quantitative Survey: http://www.opinion.eu.com/Privacy-Judges (a quantitative 

- 
short survey, addressed to judges mainly) 

Qualitative  Survey:  http://www.opinion.eu.com/Privacy 

- 
qualitative- survey for most users) 

(the  general 

-

- 
Qualitative  Extended  Questionnaire:  http://www.opinion.eu.com/Privacy_VIP 
(the same as the Qualitative one, but also including a special long question and that 
was sent only to expert selected users) 

Then, we translated all Survey questionnaires into 6 European Languages (English, 
German, French, Spanish, Greek and Italian), and programmed the on-line versions 
accordingly,  which  were 
platform 
www.opinion.eu.com by the beginning of September. 

our  Survey 

available 

online 

at 

On  Sept 15th we launched the on-line Surveys, as invitation e-mails (over 10.000) 
having  a  link  to  our  website  for  allowing  easy,  on-line,  answering  of  the 
questionnaires. 

28 

 
 
 
 
  
 
 
 
 
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regards the law applicable to non-contractual obligations arising 
out of violations of privacy and rights relating to personality. 
JLS/2007/C4/028. Final Report 

Furthermore,  on  Sept  25th  we  started  a  telephonic  Survey  campaign,  in  order  to 
increase the amount of completed questionnaires. 

Concerning  the  Quantitative  Survey,  our  plan  was  to  submit  it  only  to  European 
judges, but as per our Project Officer‘s indication, we also submitted it on a second 
phase, to the rest of professional profiles, in order to identify cases which have been 
settled entirely out of the courts (by mediators or attorneys). 

Although the initial deadline for reception of answers to our Surveys was September 
22nd , we received many requests from Media and Press Associations asking for a 
deadline extension. Thus, just for them, we extended the deadline for reception of 
answers  by  October  10th.  This  caused  an  impact  on  our  internal  schedule  for  the 
delivery of the Final Report, but we accepted it for the sake of being able to ―hear all 
the  voices‖.  Also,  some  Media  and  Press  Associations  requested  receiving  the 
questionnaires as a document, instead answering them online, so we made special 
PDF  versions  of  the  questionnaires,  in  several  languages,  in  order  to  ease  their 
answering process. 

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out of violations of privacy and rights relating to personality. 
JLS/2007/C4/028. Final Report 

3.1.4  The Results 

This Study was designed principally around gathering the opinions of professionals 
involved  in  subject  matter.  Opinions  were  gathered  by  means  of  a  questionnaire 
based  on  interviews  of  two  kinds:  self-administered  questionnaires  filled  in  by 
professionals, and one-to-one telephone interviews. 

An  invitation  to  participate  was  sent  to  over  10.000 professionals in  the  Central 
Authorities of Member States, attorneys, judges, Media and Press associations, and 
other professions involved. The Survey was carried out from mid September to mid 
October  2008.  Our  target  was  to  achieve  250  completed  answers.  A  total  of  371 
completed  answers  were  obtained.  The  reader  can  find  raw,  uncommented  
anwers received at Annex II of this Report, and commented & analysed answers at 
Section 4 below. The detail on their distribution is: 

3.1.4.1  Distribution of answers 

Quantitative Survey 

203  valid  answers  (208  in  total,  minus  5  non-valid  ones).  Total  amount  of 
invitations to answer the Survey: 4.958 

Profile of the surveyed professional 

Attorney 

Judge 

Member of national 
administration 

Other professions 

No answer 

P
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30 

60%60%80%80%100%100%20%20%40%40%0%0%55,2%33,5%1,0%9,3%1,0% 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Comparative study on the situation in the 27 Member States as 
regards the law applicable to non-contractual obligations arising 
out of violations of privacy and rights relating to personality. 
JLS/2007/C4/028. Final Report 

Country of origin of the surveyed professional 

Germany 

United Kingdom 

Spain 

France 

Ireland 

Sweden 

Italy 

Finland 

Austria 

Belgium 

Slovenia 

Hungary 

Portugal 

The Netherlands 

Czech Republic 

Estonia 

Lithuania 

Cyprus 

Poland 

Greece 

Romania 

Slovakia 

Luxembourg 

Malta 

31 

60%60%80%80%100%100%20%20%40%40%0%0%27,1%7,9%7,4%5,9%5,9%3,9%3,4%3,4%3,4%2,5%2,5%2,5%2,0%2,0%2,0%1,5%1,5%1,0%5,9%5,4%1,0%1,0%0,5%0,5% 
 
 
 
 
 
 
 
 
Comparative study on the situation in the 27 Member States as 
regards the law applicable to non-contractual obligations arising 
out of violations of privacy and rights relating to personality. 
JLS/2007/C4/028. Final Report 

Qualitative Survey 

168 valid answers (131 in total, minus 4 non-valid ones). 127 valid answers for the 
normal qualitative Survey, and 41 for the Extended Qualitative Survey (14 of them 
by  Media  and  Press  Associations).  Total  amount  of  invitations  to  answer  the 
Survey: 8.288 

Country of origin of the surveyed professional 

Germany 

Spain 

France 

Austria 

Belgium 

Italy 

Slovenia 

United Kingdom 

Estonia 

Greece 

Ireland 

Sweden 

The Netherlands 

Lithuania 

Luxembourg 

Slovakia 

Czech Republic 

Finland 

Bulgaria 

Hungary 

Latvia 

Malta 

Poland 

32 

60%60%80%80%100%100%20%20%40%40%0%0%25,6%17,3%6,5%5,4%4,8%3,6%3,0%3,0%3,0%3,0%3,0%2,4%2,4%2,4%1,8%1,2%0,6%0,6%5,4%3,6%0,6%0,6%0,6% 
 
 
 
 
 
 
Comparative study on the situation in the 27 Member States as 
regards the law applicable to non-contractual obligations arising 
out of violations of privacy and rights relating to personality. 
JLS/2007/C4/028. Final Report 

Profile of the surveyed professional 

Attorney 

Judge 

Press&Media Associations 

Data protection  agency 

Member of national administration 

Other professions 

No answer 

3.1.4.2   Information-gathering procedure 

The following procedure was followed: 

P
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1.  Creation of Questionnaires addressing the relevant aspects to our Study, 
in six languages (English, German, French, Spanish, Italian, and Greek), 
in order to facilitate their answering by the selected professionals. The final, 
on-line  questionnaires  are  available  at  http://www.opinion.eu.com/Privacy  
users); 
(the 
http://www.opinion.eu.com/Privacy-Judges  (the  quantitative  short  survey, 
addressed  to  judges  mainly);  and  http://www.opinion.eu.com/Privacy_VIP, 
the extended version of the qualitative questionnaire, addressed to selected 
experts. Also, samples of the English versions are provided as Annex III to 
this document. 

-qualitative- 

general 

survey 

most 

for 

2.  Sending invitations  to  the  entire  sample for its on-line  completion at our 

website.  

3.  Telephonic survey campaign. A parallel telephonic campaign was made, 
in  order  to  on  one  hand  increase  the  number  of  answers  and  feedback 
obtained, and on the other, been able to get more detailed feedback. Over 
300  telephone  calls  were  made,  and  over  100  telephonic  completed 
surveys done.  

4.  Monitoring  the  submission  of  on-line  answers.  This  was  carried  out 
mainly  via  email,  via  reminders,  and  accessing  our  internal  answers 
encrypted  database,  in  order to  monitor the  daily  evolution  of  answers by 
country and by profile. 

5.  Receipt  and  consolidation  of  data.  This  step  was  carried  out  without 
applying  any  corrective  factor depending  on  the  country or profession.  All 
answers  received  have  contributed  to  the  final  result  having  the  same 
influence or weight on the final result. 

33 

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out of violations of privacy and rights relating to personality. 
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3.1.5  Interactions with Media and Press Associations 

In  such  a  visible  Study,  it  was  extremely  important  for  us  to  make  sure  that  all 
opinions  and  points  of  view  were  taken  into  account,  as  well  as  to  give  special 
relevance to the position of Press & Media Associations, since they represent one 
of the main confronted positions. 

Thus,  we  sent  the  first  version  (non-public)  of  the  main  Survey  questionnaire  to 
sixteen Press and Media Associations and entities, in order for them to review it, 
before launching, and provide feedback and suggested modifications to fit also their 
point of view. We also sent it to the European Data Protection Authority for revision. 

We  closed  the  reception  of  all  comments  at  the  end  of  July,  having  received 
comments  from  the  European  Data  Protection  Authority,  and  from  four  Press 
associations  (The  European  Publishers  Council, 
the  European  Newspaper 
Publishers'  Association  –ENPA-,  the  Society  of  Editors,  and  The  European 
Federation  of  Magazine  Publishers).  We  analyzed  all  received  feedback  and 
comments,  incorporating  some  of  them  at  our  Final  Questionnaires.  We  also 
received more feedback after the deadline given to them, and still analyzed it and 
incorporate  what  we  considered  relevant.  Concerning  Press  Associations‘ 
feedback19, most of them referred to the elimination of a concrete question, and the 
modification  of  another.  Both  suggestions  were  incorporated  into  the  Final 
Questionnaire, as well as the softening of  some concepts and the incorporation of 
new aspects within the formulation of the questionnaire texts. 

Modifications made to the initial questionnaires 

The  main  received  feedback  came  from  The  European  Publishers  Council,  the 
European  Newspaper  Publishers'  Association  (ENPA),  the  Society of Editors,  The 
European Federation of Magazine Publishers, and Lagardère.  

All  of  them  coincided  on  the  need  to  eliminate  the  initial  question  No.  9  from  the 
qualitative  Survey,  that  referred  to  the  possible  creation  of  an  European  Press 
Ethical Code. These Press Associations considered that the possibility outlined in 
this question exceeded the competences of the European Commission and of the 
objectives of our Study. We disagree with this understanding, since an independent 
company like us should explore all possibilities that could improve the quality of our 
Study.  However,  we  eliminated  that  question  from  the  questionnaire.  We  initially 
included  the  question  with  the  aim  of  measuring  the  feasibility  of  harmonizing 
certain general principles on the matter of press and communication across the EU, 
that could have a sensible positive impact on the situation. Going into detail: 

19 We would like to thank the following Press and Media Associations for their participation: 
The  European  Publishers  Council,  the  European  Newspaper  Publishers'  Association 
(ENPA)  and  the  Society  of  Editors,  Union  Española  de  Prensa,  European  Federation  of 
Journalists,  The  European  Federation  of  Magazine  Publishers  (FAEP),  MTV,  Verband 
Deuttscher  Zeitschriftenverleger  (VDZ),  and  the  European  Broadcasting  Union.  We  would 
also like to thank the European Data protection authority for their contribution.  

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  For example The European Federation of Magazine Publishers (FAEP) sent 
us  a  position  against  a  European  harmonization  on  the  subject  of  our  Study. 
They stated that European Press opposes to an EC intervention on this subject, 
and do not recognize any legal capacity on the EC to do so. They conclude that 
our  qualitative  questionnare  was  exaggerated  and 
to 
unacceptable results for the Freedom of Press, as an attack to the principle of 
proportionality. 

that  could 

lead 

  The European Federation of Magazine Publishers suggested the elimination 
of  questions  No.  9  and  11  from  the  qualitative  questionnaire.  Question  9  was 
eliminated, but not 11 (question on Internet), since even accepting that the issue 
of news through Internet is already foreseen in a Directive, we considered that it 
is a specially sensible field in violations of privacy, and a conciliation should exist 
between the Directive and a future rule of conflict on this matter. 

  The European Federation of Magazine Publishers and Lagardère stated that 
question  No.  2  from  the  qualitative  questionnaire  should  be  eliminated,  as  it 
would lead to partial and confusing answers. We did not follow that suggestion, 
since  we  understand  this  question  summarizes  the  dilemma  of  the  situation 
addressed by our Study. 

  Both  the  Society  of  Editors,  the  European  Publishers  Council,  and  the 
European Newspaper Publishers' Association considered that our qualitative 
questionnaire should be drafted in a more ―neutral‖ way. ENPA requested to add 
―alleged‖  after  ―in  case  of‖  at  questions  1,  2  and  3.  Both  the  European 
Publishers Council, The European Federation of Magazine Publishers and 
Lagardère requested to substitute the mentions to ―victim” by the word “plaintiff”. 
Both  requests  were 
final 
into  account  and 
questionnaires. 

implemented  at 

taken 

the 

The European Data Protection Authority (EDPA) also sent us some feedback, and 
we  took  special  notice  of  their  comments,  in  order  to  improve  the  final 
questionnaires. Indeed, one of the Study objectives was to observe the similarities 
and  possible  connections  with  Directive  95/46/CE.  As  we  were  working  on  the 
Study, and after analysing its nature and the state of transposition of this Directive 
at the various Member States, the idea of following a similar path took more weight, 
in order to bring together national Laws at the area of violations of privacy and rights 
relating  to  personality.  Therefore,  and  taking  into  account  EDPA  suggestions,  we 
eliminated  question  No.  10  and  added  a  new  question  (finally  No.  12  at  the  final 
questionnaire), that is more in line with this direction. 

Collection of answers to the final questionnaires 

Apart than  inviting  Media &  Press  Associations to  contribute  to  the drafting  of  the 
final  Survey  questionnaires,  we  analysed  in  depth  the  set  of  survey  answers 
received from  Media  & Press  Associations.  Details appear at  the  answer analysis 
part, in the coming sections. 

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In needs to be stated that, in order to take into account as much as possible Media 
&  Press  Associations‘  opinions,  we  extended  the  period  of  receipt  of  answers 
specially for this group. Although the initial deadline for reception of answers to our 
Surveys was September 22nd , we received many requests from Media and Press 
Associations asking for a deadline extension. Thus, just for them, we extended the 
deadline  for  reception  of  answers  by  October 10th.  This  caused  an  impact  on  our 
internal schedule for the delivery of the Final Report, but we accepted it for the sake 
of  being  able  to  ―hear  all  the  voices‖.  Also,  some  Media  and  Press  Associations 
requested  receiving  the  questionnaires  as  a  document,  instead  answering  them 
online,  so  we  made  special  PDF  versions  of  the  questionnaires,  in  several 
languages, in order to ease their answering process. 

The position of Media & Press Associations 

In  some  cases,  apart  than  receiving  specific  answers  to  the  questionnaires,  the 
position  of  Media  &  Press  Associations  has  been  reinforced  by  reports  and 
documents  submitted  by  them  concerning  their  position  during  the  Rome  II 
negotiations. We have taken into account, among others, the reports submitted by 
FAEP,  ENPA,  European  Publishers  Council,  Verband  Privater  Rundfunk  und 
Telekommunikation  (VPRT),  British  Media,  and  the  European  Federation  of 
Journalists. 

Most of these documents consider that the subject matter of this Study is beyond 
EU competences, that it has not been proved enough the need to take measures by 
European Institutions, and that there is no special mention at the EC Treaty where 
this competence could be based on. Furthermore, they state that basing on Article 
65 on the harmonization of the rules of conflict, the connection of the competence of 
the EU is not enough proved with the subject matter of this Study. 

Despite  this,  they  propose  certain  European  common  criteria,  since  all  of  them 
agree  that  the  regulation  of  the  applicable  law  concerning  non-contractual 
obligations on the subject matter should not lead to a worsening of the conditions 
for  the  execution  of  fundamental  rights  and,  in  particular,  those  rights  related  to 
freedom  of  expression  and  independency  of  journalists  and  Press,  which  is 
obviously  their  concern.  In  this  sense,  they  oppose  to  establishing  the  place  of 
residence of the victim as the point of connection for setting the applicable law in 
violations of personality rights, and support the law of the residence of the publisher. 

Generally,  they  also  consider  that  each  Member  State  has  its  own  traditional 
concept of freedom of the press, often developed within specific press law, and that 
therefore this right should be developed at a national level, in harmony to its specific 
morality,  and  historical  legal,  religious,  political,  and  traditional  values.  In  short, 
journalists prefer to follow their national law, and don´t want to be forced to know 
the press law of any other Member State.  

This was confirmed at the Study of the National Law of all EU States. Indeed, we 
could confirm that there is a different degree of development and protection on this 

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subject by different national laws. That is precisely one of the reasons that led us to 
foresee and conclude that it would be very difficult to reach a consensus on which 
specific rule of conflict would be the most adequate. 

With no doubt, we have listen to, analysed, and tried to fulfil the requirements of all 
stakeholders,  referring  now  to  the  many  interactions  with  European  Media  and 
Press  Associations  across  this  Study.  However,  they  are  not  the  only  implied 
stakeholder. 

Last,  but  not  least,  the  collaboration  with  those  Associations,  as  well  as  their 
opinions  have  lead  us  in  a  significant  way  during  the  elaboration  of  our  final 
conclusions. These conclusions reflect the disparity of opinions, and the difficulty in 
reaching  a  common  agreement.  Therefore,  the  various  proposals  we  have  made 
during the Study come from the need to take into account all existing tendencies. 

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3.2  THE TEAM FOR THE CURRENT STUDY 

For  this  project,  MainStrat  created  a  Legal  Team,  enlisting  the  expertise  of  legal 
specialists  from  the  University  of  the  Basque  Country,  and  the  international 
reputed Law firm CUATRECASAS. 

In  particular,  from  the  University  of  the  Basque  Country,  the  Legal Team  counted 
with  Professor  Juan  José  Alvarez,  supported  by  Ms.  Nerea  Magallón  and  Iñigo 
Iruretagoiena, from the Enterprise Law Department of the University of the Basque 
Country. From CUATRECASAS, the Legal Team counted with Nicolás Morcillo and 
Raquel Salinas, from the Spain (San Sebastian) office, plus punctual collaborations 
from other European branches. 

This  Study  relied  on  their  valuable  expertise,  providing  profound  legal knowledge, 
access to information and professionals across the EU, and most importantly, their 
support  during  the  analysis  of  the  feedback  got,  and  the  provision  of  legal 
conclusions and recommendations at this Study. 

The Study project management and international survey services were provided by 
MainStrat members. 

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4  STUDY FINDINGS 

4.1  ‗CURRENT 

INTERESTS‘: 

PERSONALITY 

RIGHTS 

VERSUS FREEDOM OF EXPRESSION  

Respect  for  private  life,  on  the  one  hand,  and  freedom  of  expression  and 

information, which also covers respect for freedom of the media and its pluralism, 

on  the  other,  are  subject  to  special  provisions  and  regulations  in  a  multitude  of 

international pacts, conventions and agreements.  

Freedom of expression appears, for the first time, in the Constitutions of the s. 

XVIII in the United States and France. And it has now even been included in article 

19  of  the  Declaration  of  Human  Rights  adopted  by  the  General  Assembly  of  the 

UNO. The Council of Europe, in the European Convention on the safeguarding of 

the Rights of individuals and fundamental freedoms, makes provision, in its art 10.1, 

for  freedom  of  expression  and  as  a  part  of  it  freedom  of  opinion  and  freedom  to 

receive  or  to  communicate  information  or  ideas  without  interference  by  the  public 

authorities.  

Alongside the right of freedom of expression there is the right to a private life. In 

fact,  the  majority  of  incidents  of  a  cross-border  nature  that  generate  disputes 

relating to the protection of the private life of individuals occur in or use the vehicle 

of  the  mass  media,  and  therefore  both  rights  frequently  end  up  confronting  one 

another.  Consideration  at  the  international  level  of  these  rights  as  fundamental 

rights on the majority of occasions presents us with the difficult task of establishing 

a hierarchy when deciding which must have precedence. Respect for private life is 

also included in article 2 of the Declaration on the Rights of the individual and of the 

citizen.  

Both  the  right  of  and  respect  for  private  life  and  the  right  of  freedom  of 

expression are included in the Convention on the rights of the individual in arts. 8 

and  9.  At  the  European  level  we  have  the  Charter  of  Fundamental  Rights  of  the 

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European  Union  and  the  Convention  for  the  Protection  of  Human  Rights  and 

Fundamental Freedoms of the Council of Europe. They are therefore fundamental 

rights  which  the  Community  institutions  and  the  Member  States  must  not  only 

respect but promote in each of their actions.  

Sometimes  it  is  not  easy  to  delimit  the  boundaries  between  the  right  of  the 

freedom of the press and crimes of personality such as offences against private life, 

intimacy or defamation. The difficulty consists in promoting protection and achieving 

a balance of interests in such a way that the safeguarding of the one is achieved 

without  undermining  the  other.  The  European  Court  of  Human  Rights  has  had 

occasion to lay down important guidelines with respect to the reconciliation of these 

two principles in the case of a formal complaint for defamation.20 

The  right  to  a  private  life  includes  many  other rights that  either accompany  it 

within the constitutional framework or complement it with various legal instruments 

intended  to  protect  it.  A  compared  analysis  of  the  legal  systems  of  the  Member 

States  demonstrates  to  us  the  considerable  variety  of  existing  aspects  connected 

with the right to a private life. The concept of private life is strongly  linked with the 

cultural and social order of each State and each set of legal provisions establishes 

its own notion in this respect. In principle, we can say that the right to a private life is 

subject to the right to intimacy. And the right to intimacy may be considered to be 

the  most  essential  part  of  personality  rights.  But  together  with  intimacy  there  are 

frequently mixed with the law of private life, inter alia, the right to honour, the right to 

the  protection  of  one‘s  personal  reputation  and  the  right  to  the  inviolability  of  the 

home.  

The different degrees of protagonism and protection provided by the national legal 

systems  of  the  Member  States  in  respect  of  crimes  against  the  personality  are 

reflected in the fact that while many legal systems consider them specifically in their 

Constitutions,  some  do  so  very  generically  and  others  do  not  include  them  in  the 

constitutional text but in rules of a lower ranking. The Constitutions that include the 

right to a private life as a constitutional guarantee provide it with a stable legal basis 

which  facilitates  the  interpretative  task  of  the  Courts  and  their  consequent 

protection.  However,  those  that  do  not  consider  it  explicitly  in  their  Constitutions 

20Conseil  de  l´Europe,  jurisprudence  de  la  Coureuropéenne  des  droits  de  l´homme  concernant  la  protection  des 

donnes de caractère personnel. Strasbourg, December 2006.  

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make it necessary to seek other grounds within the constitutional text with a view to 

ensuring 

its  efficacy.  The  compared  constitutional  panorama  will  serve 

to 

demonstrate the distinct logic with which the Member States approach this type of 

right and its particular evolution.  

The  Spanish  Constitution  mentions  expressly  in  its  article  18.1  the  right  to 

personal and family intimacy; this is combined with the right to honour and the right 

to  the  protection  of  personal  reputation.  In  addition,  sections  2,  3  and  4  of  article 

18.1  of  the  Constitution  develop  the  aforesaid  right  and  include  the  inviolability  of 

the  home,  the  privacy  of  postal,  telegraphic  and  telephone  communications,  and 

restrictions  on  the  use  of  information  technology.  We  observe  that  in  the  Spanish 

Constitution  on  the  notion of  private  life  the  right  to  intimacy  is included and as a 

connected  notion  the  right  to  family  life,  but  other  Constitutions  treat  these 

separately. For its part, the right to freedom of expression appears in article 20 of 

the Spanish Constitution.  

Similarly,  in  Belgium  the  right  to  a private  life  is a  right  that  is recognised  for 

each  individual.  The  relevance  that  the  Belgians  attach  to  this  Right  can  be  seen 

from its introduction as a fundamental right in art. 22 of the Belgian Constitution of 

1994.  The same applies in the case of article 9 of the Greek Constitution which in 

its first section refers to private life and family life as an individual inviolable right. Or 

in the Portuguese Constitution, which also considers [offences against] personality 

rights as fundamental offences. For the Greeks the right to life, the integrity of the 

individual, personal identity and the development of personality, the right to defend 

one's reputation, and the right to privacy are treated as rights protected expressly by 

the Constitution. The Constitution of Latvia includes in its article 96 the protection of 

private life, the home and correspondence.  

In  Denmark  the  Constitution  establishes  the  right  to  intimacy  in  its  article  72 

and  in  its  article  77,  freedom  of  expression.  The  same  applies  to  the  Dutch 

Constitution of 1983 which directly acknowledges the right to intimacy in its article 

10, and the Constitution of Estonia which in its article 26 refers to the inviolability of 

the right to private personal and family life. Article 15 of the Constitution of Estonia 

also includes the right to moral and material compensation caused by an illicit act.  

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In  the  German  Constitution  of  23  May  1949,  there  is  no  precept  directly 

acknowledging  the  right  to  personal  and/or  family  intimacy.  However,  provision  is 

made for the protection of human dignity and the guarantee of the free development 

of 

the  personality; 

the 

inviolability  of 

the  person 

is  also  acknowledged. 

Notwithstanding this, paragraph 10.1 alludes to the privacy of letters and the privacy 

of  communications  and  paragraph  13  establishes  the  inviolability  of  the  home.  In 

regard to the protection of data privacy, it is important to recall the judgment of the 

German Federal Court of 15 December 1983, incorporating the grounds and basic 

elements of the content of the right to the protection of data of a personal nature.  

Based  on  the  cited  constitutional  precepts,  German  jurisprudence  has 

developed the notion of personality rights. A basic decision on the matter was the 

―Leserbrief-Urteil‖  Supreme  Court  judgment  in  the  year  1954.  At  that  time  the 

German  Supreme  Court  defended,  as  the  legal  basis  for  the  judgment,  that  the 

Constitution by means of the express acknowledgement of the right to consider the 

human  dignity  of  art.  1.1  and  the  right  to  the  free  development  of  personality, 

guarantees  personality  rights  as  fundamental  rights.  Since  then  personality  rights 

have been recognised as fundamental rights that can be contested in relation to any 

in  Germany.  The  Supreme  Court  has  also  confirmed  its  existence  repeatedly 

(Soraya case).  

But the content and scope of personality rights is not definitively delimited. It is 

considered as a unitary and indivisible right, from which any individual may obtain 

the protection of the personality in the case of given acts. There are included among 

personality  rights  the  right  to  the  free  development  of  the  personality,  the  right  to 

protection  against  indiscretions  and  the  right  to  the  protection  of  one's  own 

reputation  

Alongside  universal  personality  rights  there  can  also  be  found  the  right  of 

freedom  of  opinion  and  of  the  press  constitutionally  guaranteed  in  art.  5  of  the 

German Constitution, which states that each person has the right to externalise and 

freely  disclose  his  opinion  in  verbal  form,  in  writing  and  in  images  and  to 

communicate  through  general  sources  that  are  freely  accessible.  The  freedom  of 

the  press  and  the  freedom  of  information  via  the  radio  and  the  cinema  are 

guaranteed and censure is not admitted. These rights find their limits in the general 

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laws and in jurisprudence which constantly interprets their meaning. From all of this 

it can be seen that in order to know whether a press publication adversely affects 

the  personality  rights  of  an  individual,  we  have  to  trust  in  the  response  of 

jurisprudence which must seek an interpretation reconciling the interests in play.  

The case is similar in the Italian Constitution of 27 December 1947, in that no 

express  mention  is  made  of  intimacy  as  a  right,  though  it  does  include 

manifestations of the same, acknowledging correlatively the inviolability of the home 

(art. 14) and the privacy of communications (art. 15).  

The  Constitution  of  the  Polish  Republic  of  2  April 1997  refers to  dignity  in  its 

article 30 as something that is inherent in and inalienable from any person, which 

constitutes  a  source  of  rights  and  freedoms  of  the  citizens.  The  Supreme  Court 

Judgment  of  2007  (II  CSK  269/07)  establishes  that  according  to  article  30  of  the 

Polish  Constitution,  the  inherent  and  inalienable dignity  of  the  person  is inviolable 

and the individual‘s respect and protection is an obligation of the public authorities. 

This obligation must be satisfied by the public authorities above all in those cases in 

which the State acts as imperium, by means of repressive actions that cannot lead 

to greater restrictions of human rights and dignity than those resulting from the work 

of  protection.  Furthermore,  art.  41.1  of  the  Polish  Constitution  establishes  that 

inviolability and personal security must be ensured for each individual. Any privation 

or limitation of freedom can be imposed only in accordance with the principles and 

under the procedures  specified  by  the  statute. Art.  42.2  ensures  the  freedom  and 

privacy  of  communications.  And  according  to  art. 51 nobody  is obliged  to  provide 

information on any individual.  

In article 6 of the Magna Carta of Sweden the inviolability of the home and the 

privacy  of  communications  are  also  the  subject  of  an  express  proclamation; 

however, this is not the case in relation to the right to intimacy. The same applies in 

the  Hungarian  Constitution  which  acknowledges,  in  its  Section  54,  that  everyone 

has  the  right  to  life  and  to  the  human  dignity  to  speak,  in  its  Section  59,  on  the 

reputation and privacy of the home and personal data. The Hungarian [Constitution] 

also  acknowledges  freedom  of  expression  and  freedom  to  distribute  public 

information in its Section 61.  

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Neither  does  the  French  Constitution  expressly  contemplate  the  right  to 

intimacy and private life. In France the only national text that refers to the right to 

private  life  is  article  9  of  the  French  Civil  Code  introduced  by  the  Law  of  17  July 

1970: "everyone has the right to a private life‖. This article is oriented more towards 

respect for private life than the ―intimacy of private life‖. In order to differentiate both 

terms in France, it must be emphasised that the right to intimacy does not refer to 

private life but concerns the control of information of a personal nature; based on a 

French  expression  the  Right  to  Intimacy  must  be  understood  as  the  ―secrecy  of 

private  life‖.  In  this  context  the  Constitutional  Council  has  included  in  its 

jurisprudence the notion of privacy which is directly related to the notion of intimacy.  

As we have observed, the level of constitutional protection varies and although 

there  are  countries  where  personality  rights  are  protected  explicitly  through  their 

Constitutions partially or in all aspects, there are others where personality rights are 

not even considered. However, despite the heterogeneity resulting from the various 

constitutional provisions enshrining the protection of private life, one must take into 

account  that  the  systems  of  the  Member  States  are  tending  to  approximate  their 

constitutional  interpretation  techniques  and  are  increasingly  enjoying  greater 

methodological similarities at the time of acting jurisprudentially.  

Thanks  to  the  phenomenon  of  Europeanization  there  is  a  progressive 

establishment  of  own  constitutional  and  common  values  throughout  the  Member 

States.  The  creation  of  a  trans-national  constitutionalism  is  reflected  in  the 

jurisprudence  of 

the  European  Court  which  applies  homogenisation  when 

interpreting  fundamental  rights,  among  which  we  would  emphasise  personality 

rights. 

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out of violations of privacy and rights relating to personality. 
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4.2  COMPARED VISION OF THE PERSONALITY RIGHTS OF 
THE  MEMBER  STATES  OF  THE  EU  (SUBSTANTIVE 
FORMATIVE  REGULATION  IN  THE  LEGAL  SYSTEMS  OF 
THE MEMBER STATES)  

One  of  the  obstacles  connected  with  the  diversity  and  heterogeneity  of 

substantive  provisions  that  arises  when  analysing  offences  against  personality 

rights affecting the intimacy or dignity of individuals, are qualification problems. The 

first  complex  question  is  based  on  their  attribution  to  the  scope  of  actions  of  a 

criminal or civil nature. And the debate hinges on whether it is necessary to ensure 

the legitimacy and protection of personality rights, to consider this class of offences 

as crimes.  

In 

International  Privacy  Law 

the  need 

to  determine  an 

independent 

interpretation  of  the  concept  delinquent  and  quasi-delinquent  is  of  fundamental 

importance  in  order  to  ensure  the  efficacy  of  the  normative  provisions  and  to 

guarantee  a  uniform  solution  that  does  not  entail  qualification  problems  given  the 

differences existing in the material provisions of the Member States. The question is 

not a new one and it was raised in relation to the Brussels Convention of 1968, on 

judicial  competence  and  acknowledgement  and  execution  of  judicial  and  non-

judicial  decisions  in  civil  and  mercantile  cases,  in  the  judgments  of  30  November 

1976,  Mines  de  Potase  d„Alssace  and  in  the  STJCE  [Judgment  of  the  Supreme 

Court of Justice of the European Union] of 27 September 1988 in the Kalfelis case. 

The differences between the national legal systems are clear. In the majority of 

the  legal  systems  of  the  Member  States  there  are  offences  against  personality 

rights that are qualified as crimes and in their system of International Privacy Law 

they  fall  within  the  criminal  statute.  It  is  included  within  the  criminal  statute,  for 

example, by Italian Law and by the Portuguese Civil Code: 

Art.  24.1  LDIP  ”l‟existenza  ed  il  contenuto  dei  diritti  della  personalità  sono  regolati  dalla  lege 
nationale del sogetto...” 

Art. 27.1 Civil Code “Aos directos de personalidade no que respeta à sua existência e tutela e as 
restricoes impostas ao seu exercício é tamben aplicável a lei pessoal”. 

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out of violations of privacy and rights relating to personality. 
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Certainly  there  are  offences  against  the  right  to  a  private  life  that  are  still 

retained in many Criminal Codes of national European legal systems. In the French 

Criminal Code for example offences against the private life of a third party without 

his consent are punished with one year's imprisonment and a fine of 45,000 Euros. 

However,  it  is  often  the  case  that  subsequently  the  concept  of  privacy  is  not 

determined by law, rather it is resolved according to jurisprudence and this tends to 

leave out of this category offences against private life committed by the media. 

In the German Criminal Code (Strafgesetzbuch) chapter 15 is dedicated to the 

sphere  of  personal privacy  and  confidentiality  and,  within  this,  its  paragraph  202a 

carries  the  title  «Data  Espionage».  Within  the  framework  of  illegitimacy,  German 

jurisprudence  normally  refers  to  art.  193  of  the  Criminal  Code  which  removes 

criminal  liability  from  the  press  when  the  press  has  acted  in  the  exercise  of 

legitimate interests.  

Among  the  offences  linked  with  personality  rights  in  the  European  Criminal 

Codes, the crime of defamation is regularly to be found. Among others, in the Greek 

Criminal  Code  the  insult  and  the  offence  are  included  in  article  361.1  and  are 

punished with a  maximum prison sentence of one year and/or a pecuniary fine of 

150  to  15,000  Euros;  and defamation,  by  virtue  of  article  362  with  a  maximum  of 

two years. And in the German Criminal Code insults and defamation are considered 

in Section 185ff, while freedom of expression and opinion are protected by Section 

193.  In  the  Dutch  Criminal  Code  the  Second  Book  of  Title  XVI  is  dedicated  to 

crimes of defamation.  

The  Criminal  Codes  of  the  Czech  Republic,  Denmark,  Finland,  Ireland, 

Hungary,  Italy,  Latvia,  Lithuania,  Luxembourg,  Poland,  Estonia,  Spain  and  Malta 

also include defamation in their clauses.  

In recent years, however, several Member States have taken steps to carry out 

a reform of crimes of defamation with the idea of decriminalising them or making the 

criminal penalties imposed less severe. Many have already started to take specific 

actions  in  this  direction,  aimed  at  decriminalising  defamation  and  reducing  the 

corresponding criminal penalties. 

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out of violations of privacy and rights relating to personality. 
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This is the case, for example, in Bulgaria where, despite the Bulgarian Criminal 

Code including the crime of defamation in articles 146 to148, with the amendment 

of  1998  the  penalty  for  these  crimes  was  changed  from  imprisonment  to  criminal 

fines  determined  by  the  Court  and  which,  in  accordance  with  article  78  of  the 

Criminal  Code,  frequently  become  administrative  fines.  On  22  July  1999  the 

Parliament amended the Criminal Code to eliminate imprisonment as a penalty for 

insult and defamation. Six months later, the Parliament decided to substitute prison 

sentences by fines of 5,000 to 30,000. However, President Petar Stoyanov vetoed 

the levels of these fines, alleging that they were too high considering the salaries of 

the journalists. Consequently, insult and defamation are still crimes, but they are no 

longer punishable with prison sentences.  

In  Cyprus  defamation  was  decriminalised  in  2003,  except  with  reference  to 

foreign heads of state and foreign officials, as well as the National Guard. In Estonia 

it  [defamation]  was  also  decriminalised  in  2002,  except  when  the  offence  takes 

place against state authorities and persons enjoying international immunity and the 

official  symbols  of  the  Republic  of  Estonia,  in  which  case  it  is  punishable  with  a 

maximum  prison  sentence  of  two  years.  In  Portugal  this  type  of  crime  is  in  full 

process  of  decriminalisation  and  in  Czechoslovakia  from  2003  the  penalties  for 

defamation were reduced appreciably.  

In practice, the majority of the Member States do not apply criminal penalties 

for  defamation.  In  some  countries  it  is  stipulated  that  in  relation  to  defamation 

recourse to criminal law may only apply if other appropriate remedies do not exist. 

However,  some  Member  States  still  continue  to  use  criminal  law  regularly  in  the 

area of defamation, in particular against journalists. The European Court of Human 

Rights, in the Judgment  Castells -v- Spain(1992), insists on the importance of not 

adversely  affecting  freedom  of  expression  and  that  the  media  should  not  be 

discouraged from expressing their opinions for fear of criminal sanctions that may 

result from their actions.  

In the United Kingdom defamation is a crime, but it may only be used when it is 

justified in the public interest. A civil lawsuit concerning defamation is very common. 

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out of violations of privacy and rights relating to personality. 
JLS/2007/C4/028. Final Report 

The law stipulates that the truth and the public interest may be assured in a defence 

against accusations of defamation.  

There  are  other  aspects  connected  with  personality  rights  that  are  protected 

through  the  Civil  Codes.  It  is  increasingly  more  common  to  use  this  sphere  in 

offences  against  personality  rights  by  the  media.  In  some  countries,  particularly 

those  that  have  decriminalised  defamation,  journalists  are  faced  with  a  civil 

proceeding and, in certain cases there are also established in this domain very high 

levels of compensation for damages and losses.  

The European Court of Human Rights, in the judgment Tolstoy Miloslavsky -v- 

the  United  Kingdom,  accepts  that  national  laws  concerning  the  calculation  of 

damages  and  losses  for  damage  to  the  reputation  in  the  civil  sphere  contain  a 

considerable variety of situations. It therefore calls for the introduction of a certain 

degree of flexibility that allows judges to evaluate damages and losses based on the 

adaptation of the specific facts to the particular case.  

The Greek Civil Code makes provision, in its article 57, for the right of a person 

to  demand  that  any  infringement  against  his/her  personality  must  cease,  without 

excluding the right to appropriate compensation. And in article 59 of the Civil Code 

[provision is made] for the possible moral redress of the victim.  

The Dutch Civil Code includes defamation in its article 162, and the Civil Code 

of  the  Republic  of  Latvia  (Civillikums)  makes  provision  for  liability  for  offences 

against  morality  in  its  article  1635  and  against  the  reputation  and  dignity  of  an 

individual in its article 2352.  

In Slovakia, defamation, in addition to being a crime regulated by the  Criminal 

Code  (Law  No  140/1961),  is  regulated  in  the  Civil  Code  (Law  No  40(1964).  A 

person whose personal rights have been unjustifiably violated according to art. 13 of 

the Civil Code may request that the said violation cease and that the consequences 

thereof be eliminated, in order to obtain appropriate satisfaction. In those cases in 

which such satisfaction is insufficient, because in the particular case the dignity and 

social  standing  of  the  affected  person  has  been  considerably  diminished,  the 

affected person will be able to demand compensation for non-pecuniary damages.  

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In the German Civil Code the protection of personality rights is contained in its 

article  823,  which  concerns  illicit  activities.  Under  illicit  conduct  or  activities  in  the 

sense  of  article  823  of  the  Civil  Code,  there  is  included  illicit  intervention  in  or 

interference with the protected rights of a third party. The fundamental personality 

right  comes  from  the  decision  ―Leserbrief‖  as  ―another  right‖  according  to  the 

established meaning of the rule. A claim by virtue of Article 823 actually means that 

interference with personality rights is illicit. The illicitness does not occur when the 

externalisation or manifestation has taken place within the framework of art. 5.1 of 

the  Constitution.  Therefore,  here  too  it  is  necessary  to  weigh  up  the  attendant 

interests.  

By virtue of article 823 of the German Civil Code in offences against personality 

rights  committed  by  the  media,  the  claim  that  is  made  most  frequently  is  that  of 

omission. It has the effect of avoiding a repetition of the information that adversely 

affects personality rights. Under strict conditions, accreditation of the danger of the 

commission  is  specified  and  the  prohibition  is  considered  to  be  the  prevention  of 

publication. Only false declarations of facts are susceptible to being prohibited. The 

declarations  of 

facts  are,  according 

to 

repeated 

jurisprudence,  all 

the 

circumstances,  events,  tasks,  situations  or  conditions  that  may  be  accredited  by 

means of evidence.  

In  Poland  article  23  of  the  Civil  Code  of  23  April  1964,  establishes  that  the 

personal interests of an individual, in particular health, freedom, honour, freedom of 

conscience, name or pseudonym, image, privacy of correspondence, inviolability of 

residence, creative, scientific or artistic activity of the inventor are protected by civil 

law  notwithstanding  the  protection  provided  by  other  regulations.  The  Supreme 

Court  judgment  of  11  May  2007,  (I  CSK  47/07)  establishes  that  the  degree  of 

protection of the effects corresponding to the private life of a public person may be 

discussed, if they are connected with his/her public function. For its part the Appeal 

Court  Judgment  in  Katowice  of  4  April  2007,  (I  ACa  139/07)  establishes  that  if  a 

given person violates the personal interests of other individuals, such as the right to 

intimacy,  preserving  his  own  image,  undisturbed  use  of  freedom  and  private 

property,  he  may  not  subsequently  effectively  demand  the  protection  of  his  own 

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out of violations of privacy and rights relating to personality. 
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personal  interests  if  at  the  same  time  he  is  the  perpetrator  of  the  said  violation 

permitting (or coercing) other persons to engage in such behaviour.  

Article 24 of the Polish Civil Code establishes that any person whose personal 

interests  are  threatened  by  another  may  take  appropriate  steps  to  demand  the 

termination of the action, unless the action is not illegal; in the case of a violation, he 

may also demand that the violator take the necessary steps to prevent its effects, in 

particular  a  statement  of  appropriate  content  in  the  proper  form;  he  may  also 

demand  pecuniary  satisfaction  or  that  the  appropriate  sum  be  paid  for  a  stated 

public purpose.  

If,  as  a  result  of  the  violation  of  his  personal  interests,  damage  occurs,  the 

injured party may demand that the damage be remedied in accordance with general 

principles. This was established in the Supreme Court judgment of 24 January 2008 

(I  CSK  338/07)  which  sustained  that  a  defendant  accused  of  the  violation  of 

personal interests cannot rely on the exclusion of the illicit act if the publication is 

based solely on official documents and its author did not intend to enter into contact 

with  the  person  who  was  criticised.  And  the  Supreme  Court  judgment  of  12 

September  2007  (I  CSK  211/07)  […]  based  on  the  justified  action  in  the  public 

interest  or  the  sensationalist  offences  carried  out  by  the  press,  […]  false  facts 

cannot be published.  

In Spain, in addition to the criminal system, in the case of defamation protection 

is provided by Constitutional Law 1/1982 on civil protection of the right to honour, 

personal  and  family  intimacy  and  one's  personal  reputation.  The  said  law  civilly 

protects  this  right  against  illicit  interference.  In  art.  7  the  following  is  mentioned 

specifically: The imputation of value judgements by means of actions or expressions 

that adversely affect the dignity of another person, diminishing his reputation or an 

offence against his self-esteem. According to article 9.2 of the Civil Code, this civil 

protection  consists  of  an  order  to  pay  compensation  for  the  damage  caused  and 

article  9.3  of  the  Civil  Code  states  that  there  is a  presumption  of the  existence of 

damage whenever illicit interference is proven. The compensation will be extended 

to moral damage, according to the circumstances of the case and the seriousness 

of  the  damage  that  has  effectively occurred.  For  this we  will  take  into  account,  in 

any case, the diffusion or the audience of the mass media communication.  

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out of violations of privacy and rights relating to personality. 
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The degree of protection of personality rights in the Member States connected 

with  the  normative  development  of  the  legal systems  in  this sphere also  presents 

notable  differences.  Some  countries  have  special  laws  directly  relating  to  the 

protection of private life (Luxembourg) and others enjoy special laws relating to the 

press (Greece, Austria, Latvia, Poland, Sweden and Malta). 

Thus, for example, in France a  Commission National de l‟informatique et des 

libertes  CNIL  [National  Commission  for  Data  Processing  and  Liberties]  exists,  the 

purpose of which is to ensure the protection of personal data and private life. In fact, 

Germany,  Sweden  and  France  were  the  first  countries  to  establish  a  law  for  the 

protection of private life in the information technology sphere.  

In  Romania  there  is  something  similar  to  the  Consejo  Nacional  Audiovisual 

("CNA")  [National  Audiovisual  Board]  which  functions  in  the  domain  of  the 

audiovisual press and is regulated by Audiovisual Law No 504, as an autonomous 

public  authority  subject  to  the  control  of  Parliament,  an  exclusive  regulating 

authority  operating  in  the  domain  of  audiovisual  programme  services.  For  the 

purpose  of  carrying  out  its  scheduled  functions  the  CAN  issues  decisions, 

instructions and recommendations that have individual or regulatory characteristics. 

The  CAN  acknowledges  infringements  and  ensures  that  penalties  are  met:  fines, 

withdrawal of the audiovisual licence and the obligation of the radio broadcaster to 

broadcast only the content of the penalty decision during certain hours. 

In Luxembourg a special law exists dedicated to the protection of the private life 

of individuals, the Law of 11 August 1982, concerning the protection of private life 

and  a  law  on  Freedom  of  Expression,  the  Law  of  8  June  2004  on  freedom  of 

expression in the media. The law of 8 June 2004 ensures freedom of expression in 

the domain of the media. This law annuls the law of 20 July 1989. According to its 

art. 2 pursuant to art. 10 of the Agreement for safeguarding the rights of individuals 

and fundamental freedoms signed in Rome on 4 November 1950 and approved by 

the law of 29 August 1953, any restriction of or interference in the matter must be 

provided by law.  

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The Belgians also have extensive regulatory and jurisprudential development in 

this connection. On the one hand they have the  Law of 8 December 1992 on the 

protection of private life in connection with processing data of a personal nature (law 

on private life); and on the other we would emphasise the decisions: Royal Decree 

of 13 February 2001 concerning execution of the Law of 8 December 1992 on the 

protection of private life in relation to the processing of data of a personal nature, 

and the Royal Decree of 17 December 2003 which fixes the formalities relating to 

the  composition  and  functioning  of  certain  sectorial  committees  established  within 

the Commission for the protection of private life. 

In Austria 1328a of the Civil Code (ABGB) stipulates that whoever infringes the 

intimacy of another person and does not respect the obligatory diligence, must pay 

compensation as well as supplementary compensation for moral damages. But this 

article does not apply if the infringement is caused by the media, as these cases are 

regulated  according  to  the  Austrian  Communications  Act  (MedienG)  which  is  lex 

specialis. 

Section 6 of the MedienG states that a person who has suffered an offence or 

who  has  been  defamed,  ridiculed  or  insulted  by  the  media,  will  be  entitled  to 

compensation  for  the  offence  suffered,  except  if  the  infringement  occurred  in 

parliamentary, local or national debates, if the content of the publication is true, or 

the public interest in covering the information has precedence.  

In Germany we find the Law of art and authorship which includes the right to 

one's self esteem as part of the constitutionally guaranteed rights. Article 22 of the 

rule  regulates  the  rights  of  the  author  in  respect  of  graphic  artwork  and 

photography, as well as authors‘ rights. The images may be disclosed or published 

for exhibition only with the consent of the subject exhibited in the image.  

The  main  exception  to  the  requirement  for  consent  in  relation  to  damage  to 

personality through press publications is contained in article 23.1.1 of the German 

Law  and  it  affects  images  or  portraits  included  within  the  ―scope  of  contemporary 

history‖. In order for the image of an accused to be published without his consent, 

this depends on whether it is presented as “an image of contemporary history”.  

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out of violations of privacy and rights relating to personality. 
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To simplify the application and treatment of this precept, German jurisprudence 

has  in  the  past  had  recourse  to  the  legal  figure  of  ―the  person  of  contemporary 

history‖.  A  distinction  is  made  between  absolute  persons  of  contemporary  history 

and relative persons of contemporary history. Absolute persons are those persons 

in  public  life  who,  through  their  exposed  social  position  (for  example  relevant 

politics) or their distinguished service or merit are normally presented intentionally 

by the media (scientific, artistic or leading sports persons). These persons normally 

have  the  duty  to  tolerate  the  publication  of  their  images.  The  “relative  persons  of 

contemporary history” are, on the other hand, those persons having a public interest 

exclusively by reason of their relationship with an event in contemporary history (for 

example, the survivors of a catastrophe).  

This  scheme  or schematic  division  of  individuals of  contemporary history has 

become outdated - specifically since the decision of the European Court of Human 

Rights concerning Caroline of Monaco on 24 June 2004. The decision of the Court 

of Human Rights of Strasbourg made a positive pronouncement with respect to the 

violation  of  the  intimacy  of  certain  photographs  of  Caroline  of  Monaco  and  her 

family taken by the press. It established that their publication had no public interest 

justifying the same. The decision contradicts another decision of the Supreme Court 

of Germany in 1993 which, in connection with the same case, established that the 

Princess  of  Monaco  was  a  "contemporary historic  person".  That  condition  obliged 

the  acceptance  of  the  publication  of  photographs  of  her  and  her  family  taken  in 

public places, with the exception of her minor children.  

Another  important  individual  claim  against  reporting  or  information  damaging 

personality rights is the claim of rectification. Rectification is regulated in the laws of 

each Lander. Accordingly each Lander has its own press law. The cause rests on 

the competence in respect of the press held by the Lander, with the consequence 

that  the  16  Lander  have  approved  their  own  press  and  media  laws,  increasing 

German diversity on this subject.  

Poland also has its press law:  Act of 26 January 2004. Article 31 establishes 

that at the request of the natural person the editor in chief of a daily newspaper or 

periodical must publish, free of charge, 1) negation and normal substance relating 

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out of violations of privacy and rights relating to personality. 
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to false or inaccurate news, 2) the normal contesting of a statement that threatens 

personal interests.  

The Supreme Court judgment of 6 October 2006 (V CSK 151/06)  establishes 

that  a  personal  interest  is  violated  solely  by  a  press  publication  if,  according  to  a 

media  receiver  (the  reader)  of  such  material,  the  information  contained  therein 

violates a specific personal interest of the individual. If the injured party referred to 

in  article  39  of  the  Press  Law  has  not  requested  the  editor  in  chief  to  publish  a 

rectification, he may not ask the court to order that the editor in chief publish it. The 

Appeal Court Judgment in Poznań of 27 September 2005 (I ACa 1443/03) refers to 

the obligation of the writer. According to this decision the obligation of the editor in 

chief  and  of  the  author  of  the  press  material  to  apologise  for  violating  personal 

interests caused by the publication of the material is not an obligation according to 

the meaning of article 378.2 of the Civil Procedure Code. The press law does not 

require  that  the  author,  before  publishing  an  article  including  unfavourable 

information on certain people, must contact those who are affected.  

As we have had occasion to observe, the examination of the compared laws of 

the internal legal systems of the Member States indicates to us the different level of 

some  of  them  in  relation  to  others  in  the  area  of  personality  rights  in  all  their 

aspects.  In  the  first  place  the  differences  arise  from  their  consideration  as 

fundamental  rights  and  their  introduction  into  the  Constitutions  of  the  Member 

States. In the second place due to the progressive decriminalisation of crimes such 

as  defamation  and  the  different  treatment  given  to  them  in  the  respective  Legal 

Codes.  And  finally  the  considerable  differences  existing  between  the  Member 

States  re-emerge  when  an  attempt  is  made  to  compare  the  levels  of  normative 

development in this connection. 

We  have  revealed  the  plurality  existing  in  the  legal  systems  of  the  Member 

States in relation to non-contractual civil obligations in connection with personality 

rights.  Now,  this  diversity  is  accentuated  in  terms  of  cross-border  disputes  in 

relation  to  which  each  State  may  apply  different  legal  responses.  In  effect,  the 

material  diversity  leads  to  uneven  and  not  very  satisfactory  results  in  terms  of 

guaranteeing the proper functioning of the internal market. The existing normative 

diversity  carries  with  it  a  high  degree  of  legal  insecurity  and  uncertainty  and  an 

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increase in transaction costs connected with cross-border disputes compared with 

domestic disputes, adversely affecting the proper functioning of the internal market.  

For  the  purpose  of  reducing  these  distortions,  resulting  from  the  diversity, 

different initiatives have been introduced leading to the ―Europeanization‖ of the civil 

liability  law  and  the  idea of  establishing  what  could  be  called  a  ―European  law  on 

non-contractual civil obligations‖.  

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regards the law applicable to non-contractual obligations arising 
out of violations of privacy and rights relating to personality. 
JLS/2007/C4/028. Final Report 

4.3  THE 

PROCESS 

GRADUAL 
HARMONISATION/UNIFICATION  OF  NON-CONTRACTUAL 
OBLIGATIONS IN THE EUROPEAN UNION  

OF 

Faced with normative attempts to establish a ―European law on non-contractual 

civil obligations‖ we are presented with several options. The efforts with a view to 

drawing  together  the  national  legal  systems  in  this  connection  and  reducing  the 

existing level of normative atomisation and heterogeneity developed in recent years 

derives from various initiatives. On the one hand it is appropriate to emphasise the 

action of the Community institutions in the form of harmonising instruments and, on 

the other, the initiatives encouraged by connected organisations and professionals 

mainly in the academic field, with a view to establishing appropriate key integrating 

regulations  and  assisting  the  proper  functioning  of  the  internal  market,  or  at  least 

not disrupting it.  

The actions aimed at harmonising non-contractual civil obligations rights can be 

directed towards two objectives. Taking into account that the ultimate purpose is to 

overcome  the  obstacles  originating  from  the  diversity  existing  in  this  area  in  the 

national  legal  systems  of  the  Member  States,  it  is  a  question  of  measures  of  a 

harmonising  or  even  a  unifying  nature.  Having  established  this  objective,  we  can 

separate  the  types  of  measures  according  to  whether  they  are  directed  towards 

achieving a substantive harmonisation of the legal systems of the Member States or 

a unification of the conflicting rules, i.e. their systems of Private International Law.  

In  recent  years  the  idea  of  harmonising  the  national  legal  systems  from  a 

substantive  viewpoint  has  been  gathering  force,  for  the  purpose  of  establishing  a 

“European  Civil  Non-contractual  Obligations  Law”,  common  for  all  the  Member 

States.  This  purpose,  encouraged  by  various  initiatives  originating  from  academic 

platforms, comes as no surprise to us in that it is a question that could perfectly well 

be included within what would be a hypothetical ―European Civil Code‖. Accordingly, 

within the movement towards establishing a ―European Privacy Law‖ consideration 

is also being given to unification in connection with non-contractual civil obligations. 

The creation of a European Privacy Law would substitute the rules of the national 

legal systems on a Community level. And the non-existence of different regulations 

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would  guarantee  the  concurrence  of  uniform  legal  responses,  at  least  in  intra-

Community situations.  

Among  the  groups  and  measures  directed  towards  creating  a  European 

obligations  law  which  will  include  non-contractual  civil  liability,  it  is  appropriate  to 

emphasise the initiatives of the Study Group on a European Civil Code and of the 

European Group on Tort Law, known as the ―Gandolfi Project‖, the group ―Common 

Nucleus of European Private Law‖, the Society for European Contract Law (Secola) 

or the Acquis Group. There must also be taken into account the work undertaken 

within the framework of the UNIDROIT, where the ―Principles of European Law of 

Contracts‖ of 2001 were prepared, established by the Lando Commission. 

However, creating a complete European Privacy Law is not easy and, despite 

the  efforts  on  the  part  of  the  Court  of  Justice  of  the  European  Communities,  the 

legislative approach is complex in relation to matters which the States consider to 

be  closely  connected  with  their  national  and  cultural  identity.  This  is  where  the 

second  possibility  is  gaining  support,  oriented  towards  preparing  a  set  of  uniform 

rules of conflict and unifying the systems of Private International Law of the Member 

States in relation to non-contractual civil liability. By means of this type of conflictual 

unification technique more legal security is given to cross-border relations and there 

is a foresee ability of solutions to cross-border litigation allowing individuals to cope, 

in  better  conditions,  with  the  difficulties  originating  from  the  diversity  of  the  legal 

systems in this connection.  

This  was  the  objective  of  Regulation  (EC)  No  864/2007,  concerning  the  law 

applying to non-contractual obligations (which we will refer to hereinafter as Rome 

II).  This  is  in  fact  a  text  that  is  connected  with  article  61.  c)  of  the  Treaty  of  the 

European  Community  prepared  for  the  purpose  of  creating  a  ―European  area  for 

justice in civil matters‖ which ensures the correct functioning of the internal market.  

We therefore find ourselves with two possible approaches oriented towards the 

objective of mitigating the obstacles to the proper functioning of the internal market 

connected  with  the  legislative  diversity  of  the  Member  States.  It  is  a  case  of  two 

options which, despite the fact they have come to be considered as incompatible  - 

given that substantive unification would clearly achieve equality of legal responses 

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and would regulate the function of the rules of Private International Law - we must 

consider as complementary.  

It  is  complex  and  difficult  to  achieve  the  objective  of  a  non-contractual  Civil 

Liability  Law  that  is  uniform  and  unique  for  all  participants  of  the  EU.  We  are  far 

from  achieving  such  an  objective.  Furthermore,  a  definitive  and  complete 

substantive  unification  of  the  area  of  non-contractual  civil  liability  in  the  national 

legal  systems  would  bring  about  the  diminished  flexibility  of  the  system,  which 

would  eliminate  the  underlying  positive  elements  and  the  diversity,  and  for  the 

present  it  does  not  appear  to  be  viable.  However,  given  that  both  approaches 

converge  in  a  related  purpose,  it  would  be  more  convenient  to  use  them 

alternatively by means of a procedure that coordinates their potential joint benefits 

for the internal market. Therefore, when we consider the possibility of applying the 

technique  of  conflictual  standardisation,  we  think  of  combining  the  conflictual  and 

material approach by seeking concordance.  

In  this  connection  we  can  take  as  a  model  the  Communication  of  the 

Commission of 11 July 2001, concerning European Contractual Law, which opts for 

combining the material and conflictive legislative solutions21.  

The combination of both techniques: substantive harmonisation and conflictive 

harmonisation, in a key integrator has already been used in specific areas of non-

contractual civil liability. A good example of the combination of both techniques in 

different stages is Directive 85/374/EC on liability for damage caused by defective 

products constituting the principle of a series of measures aimed at harmonisation, 

which at the present time is culminating in the introduction of this subject matter in 

article 5 of Rome Regulation II.  

The limits inherent in substantive harmonisation are substituted by techniques 

of  International  Privacy  Law.  However,  in  turn,  we  must  recall  that  the  correct 

21COM  (2001)  398,  DOCE  [Official  Journal  of  the  European  Communities]  No  C  255,  of  13 
September. The same approach is taken by the plan of action of 2003, Communication ―European 
contractual  law  and  review  of  the  heritage:  perspectives  for  the  future  of  2004‖,  and  ―first  annual 
report  on  progress  made  in  relation  to  European  contractual  law  and  review  of  the  heritage‖;  the 
Commission issued its resolution of 2003 on ―A more coherent European contractual law‖. And the 
Parliament,  the  Resolution  of  the  European  Parliament  of  2005,  concerning  the  European 
contractual law and review of the heritage: perspectives for the future‖. 

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functioning  of  the  techniques  of  International  Privacy  Law  requires  a  minimum 

convergence of the substantive rules. Both techniques must be used as two parallel 

processes, each necessary for the other.  

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4.4  EUROPEAN  INTERNATIONAL  PRIVACY  LAW  IN  THE 
INFRINGEMENT  OF 

CASE  OF  POSSIBLE  ALLEGED 
PERSONALITY RIGHTS  

4.4.1 

International judicial competence of the courts of the Member States  

4.4.1.1  Substantive Scope of the jurisdiction of special competence 

When  we  consider  the  question  of  which  courts  are  competent  in  a  case  of 

non-contractual civil liability, the first point we encounter is the substantive scope of 

the  jurisdiction.  In  the  case  of  non-contractual obligations,  it  will  be appropriate  to 

employ alternatively three ways of electing the competent court.  

By  virtue  of  articles  2,  23  and  24  of  Regulation  44/2001  concerning  judicial 

competence  and  acknowledgement  and  execution  of  judicial  and  extra-judicial 

decisions in civil and mercantile matters (R 44/2001) the Courts of the domicile of 

the defendant or those to which the parties have submitted in the terms established 

in articles 23 and 24 R 44/2001 will be competent. In the second place, by virtue of 

article  5.3  of  R  44/2001  the  Courts  of  the  place  where  the  damaging  act  has 

occurred will be competent, provided that the defendant is domiciled in a Member 

State.  

In  the  case  of  actions  for  damages  and  losses  or  actions  for  well-  founded 

restitution  in  relation  to  an  act,  taking  place  in  a  criminal  proceeding,  the  Court 

hearing the said proceeding will be competent to the extent that, in accordance with 

its law, the same court is able to hear the civil action (art. 5.4 R 44/2001) 

The  election  of 

the 

jurisdiction 

from  among 

the  possible 

jurisdictions 

corresponds to the plaintiff when the claim is lodged. The possibility of electing the 

domicile  which  acknowledges  the  plaintiff  entails  the  risk  of  forum  shopping  and 

consequently  also  law  shopping,  as  the  plaintiff  in  its  election  of  domicile  may  be 

guided by the law that is most favourable to it.  

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4.4.1.2  Autonomous  concept  of  criminal  or  quasi-criminal  subject  matter  of 

art. 5.3. R 44/2001 

Even though in the STJCE of 30 November 1976, Mines de Potase d‟Alssace, 

explicit reference is made to the need to provide an autonomous interpretation for 

the  criminal  or  quasi-criminal  subject  matter,  it  is  in  the  STJCE  of  27  September 

1988, Kalfelis, where explicit mention is made of such a necessity. The objective of 

determining an autonomous interpretation of the criminal and quasi-criminal concept 

is to ensure the efficacy of the Brussels Convention of 1968 on judicial competence 

and acknowledgement of judicial and extra-judicial decisions in relation to civil and 

commercial  matters,  guaranteeing  a  uniform  solution  in  this  respect  given  the 

differences existing between the legal systems of the Member States. 

By  virtue  of  the  STJCE  of  17  June  1992,  Jackob  Handte  –v-  Mécano-

Chimiques,  the  autonomous  concept  of  criminal  or  quasi-criminal  subject  matter 

includes “all claims lodged demanding liability on the part of a defendant and which 

are  not  related  to  contractual  subject  matter”,  this  being  a  situation  in  which  an 

obligation  exists  freely  assumed  by  one  party  vis-à-vis  the  other.  Accordingly,  art 

5.3 is residual in nature as it is applicable when an obligation is not included in that 

of art. 5.1 R 44/2001.  

As we can observe, the line of distinction between liability for contractual and 

non-contractual  substance  is  very  fine  and  its  differentiation  sometimes  presents 

serious  difficulties.  The  TJCE  has  declared  that  the  residual  nature  of  art.  5.3  R 

44/2001 does not imply that the contractual jurisdiction applies to claims relating to 

a contract but on the basis of a crime.  

4.4.1.3  Legal  qualification  of  the  place  where  the  damaging  act  occurs  or 

could occur and illicit acts against private life  

The confirmation of the jurisdiction of the ―place of the damaging act‖ throws up 

certain difficulties in cases of dissociation in the space of the place of the generating 

act and of the place of the damage (in the case of illicit acts at a distance) and in 

cases of damage located in different territories of various States (various locations 

of damage). 

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Among  cases  involving  various  locations  of  damage  or  where  the  illicit  act 

causes  damage  to  the  same  victim  in  various  places,  we  would  emphasise  the 

STJCE of 7 March 1995, Shevill, Ixora Trading Inc; Cheqepont SARL, Chequepoin 

Internacional  Ltd.  -v-  Presse  Alliance  S.A,  relating  to  illicit  interferences  in  the 

private  life  of  an  individual.  In  this  case  the  place  of  the  causal  act  is  that  of  the 

place of the establishment of the publisher of the disputed publication, to the extent 

that  it  constructs  the  place  of  origin  of  the  damaging  act,  where  the  defamation 

manifested  itself  and  was  published,  and  this  court  is  also  competent  to  hear  the 

action for reparation of all the damage caused by the illicit act.  

As the said jurisdiction generally coincides with the domicile of the defendant, 

in  order  not  to  detract  from  the  content  of  art.  5.3  R  44/2001,  the  TJCE 

acknowledges  the  competence  of  the  Courts  of  each  of  the  States  where  the 

defamatory  publication  was  published,  in  order  to  hear  exclusively  the  damage 

caused within the territory of their jurisdiction, as the damage suffered abroad is not 

connected with their jurisdiction or the place of the damaging act. In order to avoid 

the atomisation of the litigation, the victim may concentrate all his/her claims against 

the Court of the domicile of the defendant (art. 2 R 44/2001) or before those of the 

State of the place of the damaging act (art. 5.3 R 44/2001). 

With this solution the injured party loses the option facilitated by 5.3 R 44/2001 

as well as the most general between the jurisdiction of the defendant and that of the 

place  of  the  damaging  act,  given  that  in  practice  these  will  coincide.  In  order  to 

avoid these inconveniences to the injured party and to assure for the injured party a 

real option of competence a favor damni there could be considered as competent 

the  courts  of  one  of  the  places  where  the  damaging  act  was  manifested  also  in 

relation  to  the  damage  sustained  in  the  other  States,  given  that  they  are  all 

connected with the same generating act. The relationship of causality between the 

act and damage that is not geographical but juridical in nature, would justify both the 

global  competence  of  the  place  of  the  act  and  that  of  any  of  the  places  of  the 

damage. The root problem is that the flexibility of the jurisdiction provided by art 5.3 

R 44/2001 by means of the option between the place of the causal act and those of 

the  place  of  the  damage  could  be  complicated  in  the  case  of  illicit  acts  against 

private  life,  due  to  the  difficulty  of  determining  the  places  of  the  act  and  of  the 

damage.  In  the  case  of  defamation  through  the  press  the  place  of  the  causal act 

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can be that of the establishment of the publisher, but also the place of publication or 

diffusion. This latter place, which can be different from that of the establishment of 

the publisher, could also be the place where the damage begins to materialise.  

However,  greater  difficulty  arises  when  the  interference  in  private  life  takes 

place  via  the  Internet,  due  to  the  incompatibility  between  the  consubstantial 

territoriality exercising jurisdiction and a reality in which the physical space does not 

exist.  

The  permeability  of  the  categories  act/damage  in  interferences  in  private  life 

and the artificial nature of a location based on those categories lead us to search for 

more adequate solutions to the singularity of the protected asset. The proposal that 

enjoys the greatest doctrinal acceptance is that of the  usual place of residence of 

the  victim,  while  the  place  of  realisation  of  the  illicit  act  as  a  whole,  i.e.,  in  its 

different  constitutive  elements,  notwithstanding  the  differentiation  between  the  act 

and  the  damage,  or  the  place  of  the  damage  […].  The  place  of  the  damage  is 

therefore the place where the person suffers the damage, in the legal space where 

the moral imbalance of the victim occurred. As this is a case of intangible damage 

connected with the individual, it may only be located where that individual is located.  

The forum actoris, however, has been laid aside by the TJCE and this does not 

always  lead  to  solutions  adapted  to  reality,  when  the  person  is  not  known  in  the 

State of his domicile or the illicit act has not caused damage to him.  

4.4.2  The  law  applying  to  non-contractual  obligations  deriving  from  acts 
against personality rights. The conventional European and Community 
rules in the area of non-contractual civil liability 

Non-contractual  civil  liability  is  a  normative  area  that  has  had  less  regulatory 

weight in Community Law than in the contractual sphere.  

The  Founding  Treaty  of  the  European  Community  refers  to  non-contractual 

obligations in article 288 TCE, paragraph 2.  

“In matters of non-contractual obligations the Community must redress damages caused by 
its  institutions  or  agents  in  the  exercise  of  their  duties  in  accordance  with  the  general  principles 
common to the Laws of the Member States” 

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Accordingly, the TCE refers us to the common principles of the Member States 

and their coordination by the European institutions.  

In the search for these common principles for all the Member States the Court 

of Justice of the European Communities plays a prominent role. In the STJCE of 29 

September 1982, in the matter 26/82, Olecifici Mediterranei c. EEC, it was provided 

that: 

“Non-contractual  obligations  of  the  Community  for  the  damage  caused  by  Institutions 
pursuant  to  paragraph  2  of  article  215  of  the  Treaty  (now  288),  may  only  arise  if  a  number  of 
requirements are met in relation to the illegality of the imputed behaviour, the reality of the damage 
and the requirement for a relationship of causality between the illicit behaviour and of the damage 
caused” 

This  decision  has  subsequently  been  complemented  by  other  decisions  that 

progress  to  the  establishment  of  a  Community  jurisprudence  in  the  area  of  non-

contractual civil obligations, fixing uniform criteria of interpretation. Among these we 

would emphasise the STJCE of 14 October 1999, in the matter C-104/97, P. Atlanta 

-v- Commission; the STJCE of 9 September 1999, matter C-257/98, P. Lucaccioni -

v- Commission, STJCE of 4 July 2000, matter C-352/98, Bergardem and Goupil -v- 

Commission and STJCE of 8 October 1996 in the cumulative matters C-178, C-179, 

C-1184, Dillenkofer; STJCE, of 5 March 1996, cumulative matters 46/93 and 48/93, 

Brasserie du pecheur SA.  

Alongside the timid steps of the Court of Justice of the European Communities 

there  is  a  scant  but  not  inexistent  development  of  the  Community  rules.  The  first 

question  that  arises  when  speaking  of  the  legislative  action  of  the  Community 

institutions  within  the  sphere  of  non-contractual  civil  obligations  is  the  legal  basis 

that  sustains  it.  In  the  TCE  various  precepts  exist  that  can  be  chosen  for  this 

purpose,  which  can  be  referred  to  for  the  purpose  of  unifying  or  harmonising  the 

subject matter. These are articles 61 and 65, 94 and 95, 153 or 308 TCE.  

The normative activity carried out up until the present time consists of a set of 

sectorial measures governed by a series of Directives dedicated to very particular 

aspects of non-contractual civil obligations. Accordingly, prior to the promulgation of 

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Rome Regulation II we had a fragmented and incomplete panorama of very limited 

scope.  

The  first  field  approached  by  the  Community  institutions  through  Directive 

85/374/EEC,  of  28  July  1985,  was  the  approximation  of  legal,  regulatory  and 

administrative  provisions  of  the  Member  States  in  relation  to  liability  for  damage 

caused  for  defective  products22.  The  TJCE  has  had  occasion  to  pronounce  with 

respect  to  its  content  in  the  cases  Commission  of  the  European  Communities  -v- 

French  Republic,  Commission  of  the  European  Communities  -v-  Greek  Republic 

and Maria Victoria Gonzañez Sánchez -v- Medicina Asturiana SA, by means of their 

respective judgments of 25 April 2002. It is appropriate to mention the more recent 

TJCE Judgment of 10 January 2006, in the case Skov AEg -v- Bilka Lavprisvarehus 

A/S  and  that  between  Bilka  Lavprisvarehus  A/S  -v-  Jette  Mikkelsen,  Michael  Due 

Nielsen. 

It is also appropriate to cite the Directive relating to the environment: Directive 

2004/35/EC of 21 April 2004, concerning environmental responsibility in relation to 

the  prevention  and  reparation  of  environmental  damage23  complemented  by  the 

Decision  of  the  Council  2002/762/EC,  of  19  September  2002  and  Directive 

2005/35/EC  of  7  September  2005  relating  to  contamination  from  ships  and  the 

introduction of penalties for infringements.  

In  connection  with  consumer protection  one  finds  Directive  2005/29/EC of  11 

May 2005, relating to unfair commercial practice on the part of companies in their 

relations  with  consumers  in  the  internal  market;  and  together  with  this,  Directive 

98/27/EC of 19 May 1998 relating to acts of cessation in connection with protection 

of the interests of consumers24. 

And  in  relation  to  damage  caused  by  means  of  transport,  mention  should  be 

made  of  Regulation  2027/97  of  9  October  1997  concerning  the  liability  of  airline 

companies in the case of an accident25, modified by Regulation (EC) No 889/2002, 

of 13 May 200226.  

22  DOCE  No  L  210  of  7  August  1985.  Modified  by  Directive  1994/34/CE,  of  10  May  1999  DOCE  No  L  283  of  6 

November.  

23 DOCE No L143/56, of 30 April 2004.  
24 DOCE No L 166 of 11 June 1998.  
25 DOCE No L285, of 17 October 1997. 
26 DOCE No L140 of 30 May 2002.  

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Together  with  these  instruments  it  is  appropriate  to  emphasise  Directive 

2000/31/EC of 8 June 2000 relating to certain aspects of the information Society, in 

particular  electronic  commerce27.  Also  Directive  2006/123/EC  concerning  services 

in the internal market28 which relates to articles 43 and 49 of the Founding Treaty of 

the European Community.  

But  civil  obligations  concerning 

the  processing  of  personal  data  has 

undoubtedly been the subject matter that appears to have awakened most interest 

in  the  normative  exercise  of  the  Community.  This  is  a  sector  that  has  evolved  in 

parallel with technological advances and which can be taken as an example when 

considering non-contractual civil obligations in relation to personality rights. We will 

therefore  consider  a  little  further  the  instruments  prepared  in  this  connection.  We 

emphasise below Agreement 10 of the Council of Europe and Directive 96/46/EC.  

4.4.2.1  Agreement 108 of the Council of Europe 

That  of  28  January  1981  approving  Convention  No  108  of  the  Council  of 

Europe on the protection of individuals in relation to the computerised processing of 

data of a personal nature, the first European conventional norm that laid down the 

standards  of  the  common  model  of  data  protection.  The  Convention  sought  to 

extend the protection of fundamental rights and liberties, and, specifically, the right 

to  respect  for  private  life,  taking  into  account  the  intensification  of  cross-border 

circulation of data of a personal nature subject to computer processing29. 

The  said  Convention  includes  in  its  second  chapter,  basic  principles  on  data 

protection: Principle of loyalty, principle of accuracy, principle of purpose, principle 

of  relevance,  principle  of  non-abusive  use,  principle  of  the  right  to  oversight, 

principle of publicity, principle of individual access, principle of security, principle of 

prohibition  of  automatic  processing  of  data  that  reveals  racial  origin,  political 

opinions,  religious  convictions  or  of  any  other  type,  or  data  relating  to  health  or 

sexual life, unless the internal law provides for adequate guarantees.  

27 DOCE No L178 17 July 2000 
28 DOCE No L376 of 27 December 2007.  
29 The state adhesions to the convention can be found at the following link: 
:http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=108&CM=1&DF=&CL=ENG 

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And a penalty system that is in the hands of the Participating States. In effect, 

the Convention leaves completely open the question relating not only to the type of 

penalties for which provision may be made, but also the legal sector in which they 

may be included in each State.  

4.4.2.2  Directive 95/46/EEC 

In  pursuance  of  the  principles  established  in  the  aforementioned  convention, 

Directive 95/46/EC, of the European Parliament and of the Council, of 24 October 

1995, on the protection of individuals with regard to the processing of personal data 

and on the free circulation of such data was passed30. 

Directive  95/46/EC  was  passed  to  approximate  the  national  legislation  of  the 

member states of the Union on the personal data protection into line. As Recital 11 

of the Directive states, the principles of the protection of the rights and freedoms of 

individuals,  notably  the  right  to  privacy,  which are  contained  in this Directive,  give 

substance to and amplify those contained in the previous convention.  

Recital 10 states that the purpose of the Directive is to harmonise the level of 

protection offered by the member states in their various legislation on the protection 

of  privacy  and  thus  to  ensure  "a  high  level of  protection  in  the  Community" or an 

―adequate level‖. Pursuant to this objective, and Article 32 of the Directive, member 

states  had  three  years  to  transpose  the  Directive  into  their  national  legislation 

(before 2008).  

Directive  95/46/EC  on  the  protection  of  individuals  with  regard  to  the 

processing  of  personal  data  and  on  the  free  circulation  of  such  data  contains 

general provisions to ensure that interested parties are informed of their rights with 

regard to data protection.  

These requirements are set out in the following articles: 

• Article 6(1)(a), which establishes that personal data shall be processed "fairly and lawfully"; 

30 OJEC L281, of 23 November 1995. Subsequently complemented by Directive 2002/58/EC on privacy and electronic 

communications. OJEC Num. L 201 of 31 July 2002  

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• Article 10, which establishes the minimum information that must be provided to the data subject 
when the data has been obtained directly from said individual. 
• Article 11, which  sets forth the minimum information that must  be provided to the data  subject 
when the data has not been obtained directly from said individual. 
• Article 14, which establishes the requirement to inform the data subject before personal data are 
disclosed to third parties. 

The general provisions of the Directive draw a distinction between two types of 

information: 

a)  Essential 

information: 

the 

identity  of 

the  controller  and  of  his 

representative,  if  any,  the  purposes  of  the  processing  for  which  the  data  are 

intended, except where the data subject already has said information;  

b)  Any  "further  information"  relating  to  the  recipients  of  the  data,  whether 

replies to the questions are obligatory or voluntary, the existence of the right of 

access to and the right to rectify the data in so far as such further information is 

necessary,  having  regard  to  the  specific  circumstances  in  which  the  data  are 

collected, to guarantee fair processing in respect of the data subject. 

A report from the Commission entitled ―First report on the implementation of the 

Data  Protection  Directive‖31examined  application  of  the aforementioned  provisions 

of the Directive relating to information. The report concluded that:  

The implementation of Articles 10 and 11 of the Directive showed a number of divergences.. 
To  some  extent  this  is  the  result  of  incorrect  implementation,  for instance  when  a  law  stipulates 
that  additional  information  must  always  be  provided  to  the  data  subject,  irrespective  of  the 
necessity test the Directive foresees, but also stems from divergent interpretation and practice by 
supervisory authorities”.  

Indeed, the laws of the member states differ considerably regarding the type of 

information that must be provided and how and when it must provided. 

There  are  also  differences  regarding  the  type  of  additional  information  that  it 

may  be  necessary  to  provide  in  order  to  ensure  fair  processing.  Some  member 

states  repeat  the  examples  given  in  the  Directive,  others  give  slightly  different 

examples  and  some  provide  no  example  whatsoever.  Although  some  member 

states  meet  the  requirements  of  the  Directive  to  a  large  extent,  others  are  a 

considerably way from fulfilling them. The technical annex to the commission's first 

31 COM (2003) 265 final] 

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report  analysing  implementation  of  Directive  95/46/EC  in  the  member  states 

provides more detailed information on national legislation32: 

For  its  part,  the  2003  Flash  Eurobarometer  survey  came  to  the  following 

conclusions regarding measures on violation of privacy and protection of the private 

life of the people and data circulation. And it ratified: 

  The need to facilitate conformity throughout the EU  

  The need to improve public awareness regarding issues of data protection 

  The need to give information with meaningful and adequate content regarding 

the situation in which the data gathering takes place 

 The  need  to  improve  the  quality  of  data  protection  from  the  point  of  view  of 

data subjects 

The  importance  of  increased  harmonisation  of  applicable  legal  regulation  on 

violation  of  individual privacy  and  private  life  and  on  personal data  protection  has 

also been raised at a number of symposia, such as the workshop held in Berlin, in 

March 2004, which brought together public and private sector experts interested in 

building  on  25th  International  Conference  Resolution,  and  the  26th  International 

Conference on Privacy and Personal Data Protection, held in Wroclaw (Poland), at 

which,  in  September  2004,  research  was  presented  demonstrating  the  need  for 

warnings on privacy and fair processing to be readily understandable. 

Its area of application is delimited by Article 3. Section 1 of this article states 

that its provisions shall apply ―to the processing of personal data wholly or partly by 

automatic  means,  and  to  the  processing  otherwise  than  by  automatic  means  of 

personal data  which  form  part of a  filing  system  or are  intended  to  form  part  of  a 

filing system‖.  

Article  4  of  Directive  95/46/EC  deals  with  the  applicable  law.  The  first 

paragraph  refers, by  way of  a  self-limiting  choice of  law rule,  back  to  the  national 

provisions  adopted  by  the  member  states  in  order  to  transpose  and  apply  the 

content of this Directive. The member states shall therefore enact the law they have 

passed  after  implementing  the  Directive  into  their  national  legislation,  when  the 

32 http://europa.eu.int/comm/internal_market/privacy/lawreport/data-directive_en.htm 

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processing is carried out in the context of the activities of an establishment of the 

controller on the territory of the member state 

In accordance with Directive 95/46/EC, we can say that the applicable law shall 

be that of the country in which the controller of the personal data is established; that 

is to say the country of residence of the controller of the file regardless of the place 

of  processing  of  the  data  (lex  loci  delicti  commissi)  and  of  the  nationality  or 

residence  of  the  victims  of  said  processing.  The  connecting  factor  chosen  is 

therefore the ―country of location of the controller of the file‖ and, obviously, it may 

not be the case, in an international event, that it is the court of said country that is 

hearing the matter. 

As  can  be  seen,  Directive  95/46/EC does  not  apply  the  general  rule  on  non-

contractual  responsibility  which  is  the  lex  loci  Delicti  Commissi  or  the  law  of  the 

country where the illicit processing of the data takes place. In this way it avoids the 

problems  derived  from  data  processing  in  different  countries  and  the  consequent 

concurrence  of  various  national  laws,  as  frequently  happens  with  companies  that 

process  personal  data  using  information  technology.  This  demonstrates  that  it  is 

intended to facilitate the activity of this type of company and promote free circulation 

of data within the community area. 

The law of the country of establishment is a criterion of application intended to 

reduce costs for companies and thus the choice of this connecting factor is marked 

by an ―economic argument‖ which does not take into account the law of the country 

with the closest ties, but rather pursues a given material result that is favourable to 

IT  companies  operating  in  the  industry,  regardless  of  the  country  in  which  the 

company  performs  its  activities.  It  does  not  take  into  account  the  principle  of 

proximity that supposedly underlies any choice-of-law rule and rejects criteria such 

as  that  of  the  nationality  or  residence  of  the  subject  affected  or  the  nationality  or 

residence  of  the  controller of  the  file  or the  country of  the  physical  location of  the 

file.  

By doing so, Directive 95/46/EC (Recital 18), seeks to ensure  that individuals 

are not deprived of the protection to which they are entitled under this Directive, by 

submitting any processing of data by any person (regardless of his nationality or the 

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place  in  which  the activity  is  carried  out) acting  under the authority  of  a  controller 

who is established in a member state to the law of that country. This also ensures 

that companies do not have to inform themselves on the contents of all the laws of 

the community countries where they might carry out their activity.  

Individuals whose rights are violated, are obliged to litigate in accordance with 

the law of the place of establishment of the controller of the file and in accordance 

with  a 

jurisdiction  with  which 

they  are  probably  not 

familiar.  Economic 

considerations  and  free  circulation  of  data  in  the  European  area  therefore  take 

precedence  over protection  of  individual privacy.  In  order  to  prevent  distortions  in 

the domestic market a balance must be struck between all participants.  

However, to prevent companies' getting round the applicable legislation of the 

countries  in  which  they  operate  and  to  guarantee  the  suitable  framework  of 

protection pursued by the Directive, if the controller of the file is established, either 

by way of a branch or a subsidiary, in various member states, he must guarantee 

that each of his establishments complies with the legislation of the country in which 

it  is  located.  Likewise  the  activities  carried  out  in  each  establishment  shall  be 

governed  by  the  law  of  the  country  of  residence  of  the  establishment  (Recital  18 

and Art. 4.1 of the Directive) 

in  turn,  when  the  establishment  responsible  for  the  file  is  not  located  in  a 

community  member  state  but  in  a  country  in  which  the  law  of  a  member  state  is 

applied, in accordance with the standards of International Public Law, the legislation 

of said country will likewise apply ( Art. 4 b. Directive 95/46/EC) 

Along  the  same  lines,  with  the  aim  of  ensuring  that  all  activities  carried  out 

within the framework of the European area observe the same level of protection to 

the  persons  included  in  the  Directive;  when  the  controller  is  not  established  in  a 

member  state  but  for  purposes  of  processing  personal  data  makes  use  of 

equipment  situated  on  the  territory  of  a  Member  State,  unless  such  equipment  is 

used only for purposes of transit, the law of said country shall apply (Recital 20 and 

Art. 4 c) Directive 95/46/EC) 

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Likewise,  in  order  to  ensure  the  protection  established  in  the  Directive  the 

transfer  of  personal  data  of  community  citizens  to  non-community  third  countries 

(insofar as lex loci delicti commissi would apply) the national authorities may reject 

that transfer when it considers that the country does not offer ―an adequate level of 

protection‖ of privacy (Art. 25 Directive 95/46/CE). 

And,  finally,  when  data  processing  is  carried  out  by  a  third  country  in  an  EU 

member state, the criterion of location of the file is not used, but Art. 4.1 c) of the 

Directive might apply, referring to the applicable law of the member state in which 

the processing has been carried out (law of the place of gathering of the data, law of 

the place of its classification, dissemination, etc.). Therefore in the case of a third 

country  making  use  of  a  member  state  for  processing  data,  the  lex  loci  delicti 

commissi does apply. 

Finally,  the  Judgment  of  the  Court  of  Justice  in  Case  C-73/07,  16 

December 2008, defines the relationship between Data protection and the freedom 

of  the  press,  and  notes  that  the  Member  States  should,  while  permitting  the  free 

flow  of  personal  data,  protect  the  fundamental  rights  and  freedoms  of  natural 

persons  and,  in  particular, their  right  to  privacy,  with  respect  to  the  processing  of 

those data. In order to reconcile the protection of privacy and the right to freedom of 

expression, the Member States are required to provide for a number of derogations 

or  limitations  in  relation  to  the  protection  of  data  and,  therefore,  in  relation  to  the 

fundamental right to privacy. Those derogations must be made solely for journalistic 

purposes or for the purposes of  artistic or literary expression, which fall within the 

scope of the fundamental right to freedom expression, in so far as it is apparent that 

they are necessary in order to reconcile the right to privacy with the rules governing 

freedom of expression. 

In order to take account of the importance of the right to freedom of expression 

in every democratic society, it is necessary, first, to interpret notions relating to that 

freedom, such as journalism, broadly. Secondly, the protection of the fundamental 

right  to  privacy  requires  that  the  derogations  and  limitations  in  relation  to  the 

protection of data must apply only insofar as is strictly necessary. 

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4.4.2.3  Rome II Regulation  

Article  2  of  the  Treaty  on  European  Union  states  that  one  of  the  aims  of 

European  Union  is  to  maintain  and  develop  the  Union  as  an  area  of  freedom, 

security  and  justice  in  which  the  free  movement  of  persons  is  ensured  and 

European  citizens  can  assert  their  rights,  enjoying  the  same  guarantees  as  they 

have before the courts of their own country.  

In order to constitute a true European area of justice , Articles 61 c) and 65 of 

the  Treaty  Establishing  the  European  Community  adopt  measures  in  the  field  of 

judicial cooperation in civil matters, in so far as necessary for the proper functioning 

of the internal market. At its meeting in Tampere on 15 and 16 October 1999, the 

European Council concluded that the principle of mutual recognition should become 

the cornerstone of the judicial cooperation that must be established in the Union. It 

asked the Council and the Commission to adopt, no later than December 2000, a 

programme of measures to implement this principle.  

The joint programme of the Commission and the Council defining the measures 

for implementation of the principle of mutual recognition of judicial decisions in civil 

and commercial matters, adopted by the Council on 30 November 2000, states that 

the measures on harmonisation of the rules of conflict of laws are complementary, 

that  they  facilitate  implementation  of  the  principle  of  mutual  recognition  of  judicial 

decisions in civil and commercial matters. Knowing that the courts of the member 

states apply the same rules of conflict to determine which law governs a situation 

reinforces reciprocal trust in the judgements passed down in other member states 

and is an indispensable factor in achieving the longer-term goal of free circulation of 

judicial decisions without intermediary measures of supervision. The future Treaty of 

Lisbon  further  reinforces  this  trend,  moving  this  sector  further  into  the  community 

context. 

The  initiative  of  the  present  study  lies  forms  part  of  the  work  of  harmonising 

international private law in civil and commercial matters at EU level, which began in 

the 1960s. On 27 September 1968, in order to implement the provisions of Article 

220, Section 4 (now Article 293-4) of the EEC Treaty, the six founding states of the 

European  Economic  Community  entered  a  convention  on 

the 

jurisdiction, 

recognition and execution of judicial decisions in civil and commercial matters (the 

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"Brussels Convention"). This convention was based on the idea, already contained 

in  the  EC  Treaty,  that  the  creation  of  a  common  market  implies  the  possibility  of 

obtaining in any member state, as easily as possible the recognition and execution 

of a judicial decision passed in another member state. To facilitate achievement of 

this  aim,  the  Brussels  Convention  began  by  setting  out  the  rules  that  identify  the 

member state whose courts are competent to judge a crossborder dispute. 

However, the mere existence of rules governing the competence of the courts 

does not make it possible to make a reasonable prediction as to the solution of the 

underlying dispute. In effect, the Brussels Convention, and the regulation known as 

"Brussels I" which has replaced it since 1 March 200133, contains a series of options 

that  potentially  allow  for  a  choice  of  jurisdiction.  The  risk  is  that  one  party  might 

select  the  courts of  a  member state  for the  sole  reason  that  the  applicable  law  is 

more favourable than that of the other member state. This phenomenon, known as 

―forum  shopping‖,  is  a  consequence  of  the  interaction  between  the  international 

jurisdiction of the national courts and the question of applicable law. Given that the 

determination  of  international  jurisdiction  comes  prior  to  the  determination  of  the 

applicable legislation, the first decision may condition the second one in so far as 

the rules of conflict that the potentially competent courts must apply are different. 

That  is  why  work  began  on  codifying  the  rules  on  conflicts  of  laws  in  the 

Community in 1967. The Commission convened two meetings of experts in 1969, at 

which it was agreed to focus initially on questions having the greatest impact on the 

operation  of  the  common  market  the  law  applicable  to  tangible  and  intangible 

property,  contractual  and  non-contractual  obligations  and  the  form  of  legal 

documents.  

On 23 June 1972, the experts presented a first preliminary draft convention on 

the  law  applicable  to  contractual  and  non-contractual  obligations.  Following  the 

accession of the United Kingdom, Ireland and Denmark, the group was expanded in 

1973, and that slowed progress.  

33 Regulation (EC) No. 44/2001 of the Council of 22 December 2000, OJ L 12 of 16.1.2001, p. 
1, which replaces the Brussels Convention of 1968 whose consolidated version was published in the 
OJ No. C 27 of 26.1.1998, p. 1. 

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In  March  1978,  the  decision  was  taken  to  confine  attention  to  contractual 

obligations so that negotiations could be completed within a reasonable time and to 

commence  negotiations 

later 

for  a  second  convention  on  non-contractual 

obligations. 

On  19  June  1980  the  Convention  on  the  law  applicable  to  contractual 

obligations (the "Rome Convention") was opened for signature, and it entered into 

force on 1 April 1991.34. As there was no proper legal basis in the EC Treaty at the 

time  of  its  signing,  the  convention  takes  the  traditional  form  of  an  international 

treaty.  However,  as  it  was  seen  as  the  indispensable  adjunct  to  the  Brussels 

Convention, the complementarity being referred to expressly in the Preamble, it is 

treated in the same way as the instruments adopted on the basis of Article 293 (ex-

220) and is an integral part of the Community acquis. 

Article  K.1(6)  of  the  Union  Treaty  in  the  Maastricht  version  classified  judicial 

cooperation in civil matters in the areas of common interest to the Member States of 

the European Union. In its Resolution of 14 October 1996 laying down the priorities 

for  cooperation  in  the  field  of  justice  and  home  affairs  for  the  period  from  1  July 

1996 to 30 June 1998,35, the Council stated that, in pursuing the objectives set by 

the European Council, it intended to concentrate during the above period on certain 

priority  areas,  which  included  the  "launching  of  discussions  on  the  necessity  and 

possibility  of  drawing  up  ...  a  convention  on  the  law  applicable  to  non-contractual 

obligations". 

In February 1998 the Commission sent the Member States a questionnaire on 

a draft convention on the law applicable to non-contractual obligations. The Austrian 

Presidency held four working meetings to examine the replies to the questionnaire. 

It  was  established  that  all  the  Member  States  supported  the  principle  of  an 

instrument  on  the  law  applicable  to  non-contractual  obligations.  At  the  same  time 

the  Commission  financed  a  Grotius  project  36presented  by  the  European  Private 

International  Law  Group  (Gedip)  to  examine  the  feasibility  of  a  European 

34For  the  consolidated  text  of  the  Convention  as  amended  by  the  various  Conventions  of 
Accession, and the declarations and protocols annexed to it, see the version published in OJ C 27, 
26.1.1998, p. 34. 

35 OJ C 319, 26 October 1996, p. 1. 
36Project No GR/97/051. 

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Convention on the law applicable to non-contractual obligations, which culminated 

in a draft text. 37. 

The  Council's  ad  hoc  "Rome  II"  Working  Party  continued  to  meet  throughout 

1999  under  the  German  and  Finnish  Presidencies,  examining  the  draft  texts 

presented by the Austrian Presidency and by Gedip.  

The Amsterdam Treaty, which entered into force on 1 May 1999, having moved 

cooperation  in  civil  matters  into  the  Community  context,  on  3  December  1998  an 

Action  Plan  of  the  Council  and  the  Commission  was  adopted  on  how  best  to 

implement  the  provisions  of  the  Treaty  of  Amsterdam  on  an  area  of  freedom, 

security  and  justice.  38.  This  text  highlights  that principles  such  as  certainty  in the 

law and equal access to justice require among other things "clear designation of the 

applicable law" and states in paragraph 40 that "The following measures should be 

taken within two years after the entry into force of the Treaty: … ... b) drawing up a 

legal instrument on the law applicable to non-contractual obligations (Rome II)".". 

On 3 May 2002, the Commission launched consultations with interested circles 

on an initial preliminary draft proposal for a "Rome II" Regulation prepared by the 

Directorate-General  for  Justice  and  Home  Affairs.  The  consultations  prompted  a 

very  wide  response,  and  the  Commission  received  80  or  so  written  contributions 

from  the  Member  States,  academics,  representatives  of  industry  and  consumers' 

associations 39. The written consultation procedure was followed by a public hearing 

in Brussels on 7 January 2003 which led to the First Proposal for a Regulation on 

the Law Applicable to Non-Contractual Obligations.40. 

The  first  proposal  was  replaced  by  a  second  amended  text  which,  inter  alia, 

removed  from  the  scope  of  the  future  Rome  II  Regulation  Art.  6  referring  to  the 

violation of privacy and rights relating to personality. Thus the final text of the Rome 

37Accessible at http://www.drt.ucl.ac.be/gedip/gedip_documents.html.  
38OJ C 19, 23.1.1999, p. 1. 
39The contributions received by the Commission can be consulted at:  
http://europa.eu.int/comm/justice_home/news/consulting_public/rome_ii/news_summary_rome

2_en.htm.  

40 COM (2003) 427 final 

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II Regulation, recently passed and published in the OJEC leaves out Article 6 of the 

initial proposal.  

Nonetheless, Article  30  calls  on  the  Commission  to  submit  to  the  Parliament, 

the  Council  and  the  European  Economic  and  Social  Committee,  no  later  than  31 

December 2008, a study on the situation in the field of the law applicable to non-

contractual  obligations  arising  out  of  violations  of  privacy  and  rights  relating  to 

personality, taking into account rules relating to freedom of the press and freedom 

of expression in the media, and conflict-of-law issues related to Directive 95/46/EC 

of the European Parliament and of the Council of 24 October 1995 on the protection 

of  individuals  with  regard  to  the  processing  of  personal  data  and  on  the  free 

movement  of  such  data.  It  is  precisely  this  last  undertaking  that  has  become  the 

subject of the present study. 

With regard to the content of the Rome II Regulation two specific aspects need 

to be highlighted. Firstly, the community legislator has deemed that the general rule, 

as it is traditionally reflected in the member states, must follow the criterion of the 

lex  loci  delicti  commissi,  and  specifically  the  law  of  the  place  where  the  damage 

occurs (regardless of the country in which the operative event of the damage has 

occurred or in which the indirect consequences might occur). We are therefore left 

with the rule of ubiquity arising out of the general rule of the lex loci delicti commissi, 

establishing this criterion in the place of the damage and not where the operative 

event of the damage may have taken place. 

Secondly, the Rome II Regulation clearly reflects a shift towards specialisation 

of the rules of conflict in International Private Law. In contrast to the option of the 

broad  legal  categories  that  were  used  to  cover  all  types  of  non-contractual 

obligations,  the  Regulation  sets  out  special  rules  for  the  non-contractual  civil 

obligations arising out of damage caused by defective products, unfair competition 

and  acts  restricting  free  competition,  environmental  damage,  infringements  of 

intellectual  property  rights,  industrial  conflicts,  etc.  Experience  has  led  the 

community 

legislator 

to 

take 

into  consideration 

the  special  nature  of 

the 

aforementioned  cases,  providing  particular  rules  of  conflict  suitable  in  accordance 

with that special nature. As such, obligations arising out of violations of privacy and 

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other rights relating to the personality via the press, could be considered a particular 

case that requires a special choice-of-law rule to meet its own needs. 

4.4.2.4  Exclusion of the issue of defamation from Rome II 

i.  Legislative proposals prior to the adoption of Rome II 

Within the process of drafting the Rome II Regulation, the specific provision on 

the  non-contractual  obligations  arising  out  of  damages  to  rights  relating  to  the 

personality  via  the  mass  media  has  followed  a  truly  tortuous  path.  Neither  of  the 

proposals of the Commission and the European Parliament ultimately managed to 

achieve the required consensus. 

The  Commission's  proposal,  in  the  preliminary  draft  of  the  proposal  for  the 

Council Regulation of May 2002, provided for the introduction of a special rule for 

non-contractual  civil  obligations  arising  out  of  violations  of  private  life  and  rights 

relating  to  the  personality.  According  to  this  initial  proposal  the  applicable  law 

should be  that  of  the  habitual residence  of  the  person  harmed.  This  criterion  was 

intended  to  answer  the  practical  problems  created  by  a  distributive  application  of 

various  laws  to  a  specific case,  arising  out  of  the  forum‘s interpretation  of  special 

competence by reason of the issue of the Brussels Convention I made by the CJEC 

in the Fiona Shevill case. 

However, the Commission's solution met with criticism. Among the arguments 

levied against use of the habitual residence of the victim as a connecting factor, it 

was said that it is not always easy to determine the habitual residence of celebrities, 

and that the combination of rules of competence and rules of conflict could lead to a 

situation  in  which  the  courts  of  the  country  of  the  publisher's  head  offices  would 

have to sentence the publisher in application of the law of the habitual residence of 

the person harmed, even if the publication or broadcast met the rules of the country 

of the publisher's head office and no copies of same had been disseminated in the 

country of the victim's habitual residence41. 

41 Commission, Proposal for a Regulation of the European Parliament and of the Council on the 
law applicable to non-contractual obligations ("ROME II"), COM(2003) 427 final, 2003/0168 (COD), 
p. 20. 

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Taking these submissions into consideration, the Commission submitted a new 

proposal  in  the  Proposal  for  a  Regulation  of  the  European  Parliament  and  the 

Council on the Law Applicable to Non-Contractual Obligations ("Rome II"). Art. 6 of 

this proposal for a Regulation stated as follows: 

―Violations of privacy and rights relating to the personality 
1. The law applicable to a non-contractual obligation arising out of a violation of privacy or rights relating 
to the personality shall be the law of the forum where the application of the law designated by Article 3 
would  be  contrary  to  the  fundamental  principles  of  the  forum  as  regards  freedom  of  expression  and 
information. 
2. The law applicable to the right of reply or equivalent measures shall be the law of the country in 
which the broadcaster or publisher has its habitual residence.‖ 

Based  on  this  precept,  for  determining  the  law  applicable  to  violations  of 

privacy  and  rights  relating  to  the  personality  it  is  necessary  to  refer  back  to  the 

general  rule  of  Article  3,  whereby  the  law  of  the  place  of  the  direct  damage  shall 

apply, unless the parties do not live in the same country or the conflict as closer ties 

with  another  country.  The  solution  therefore  involved  applying  the  general  rule  of 

Article  3  and  application  of  the  lex  loci  delicti  commissi.  in  this  case  the  decisive 

factor is the place where the damage occurred, regardless of the country where the 

operative event of the damage occurred and whatever be the countries in which the 

indirect  consequences  of  the damage occur. According  to the  CJEC,  in  the  Fiona 

Shevill case, the place of the damage in the event of defamation via the press shall 

be that of the "contracting state where the publication has been disseminated and 

where  the  victim  claims  to  have  suffered  an  attack  upon  her  reputation"42. 

Dissemination  is  considered  to  exist  when  the  publication  has  been  commercially 

distributed. This connecting factor answers both the legitimate expectations of the 

person harmed and those of the author of the defamatory action. It is worth noting 

that  a  publication  is  only  considered  to  be  disseminated  in  a  country  when  it  is 

subject to commercial distribution. 

To answer the concerns expressed by the industry, the media and some of the 

member states in criticisms expressed with regard to the initial proposal (notably the 

―risk‖  that  the  courts  of  the  country  of  the  publisher's  head  offices  would  have  to 

sentence  the  publisher  in  application  of  a  foreign  law,  even  if  the  publication  or 

broadcast  conformed  to  the  rules  of  the  country  of  the  publisher's  head  office) 

42 CJEC, judgement of 7 March 1995, Case C 68/93, Fiona Shevill and others. c/Press Allianza S.A., Rec. p. I - 415 

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Article  6  had  provided  a  special  rule,  whereby  the  law  of  the  forum  would  apply 

wherever  application  of  the  law  designated  by  Article  3  would  be  contrary  to  the 

fundamental  principles  of  the  forum  as  regards  freedom  of  expression  and 

information.  Nonetheless,  this  provision  is  unnecessary  given  the  existence  of  a 

general rule of public order in the Rome II Regulation itself.  

In light of the Proposal for a Regulation of the European Parliament and of the 

Council on the law applicable to non-contractual obligations ("Rome II") submitted 

by  the  Commission,  the  European  Parliament  in  the  first  reading  presented  an 

amendment  to  Article  643.  The  new  Article  5  -―Violations  of  privacy  and  rights 

relating to the personality- proposed by the parliament established as follows: 

1.  As  regards  the  law  applicable  to  a  non-contractual  obligation  arising  out  of  a  violation  of 
privacy  or  rights  relating  to  the  personality,  the  law  of  the  country  in  which  the  most  significant 
element or elements of the loss or damage occur or are likely to occur shall be applicable.  

Where the violation is caused by the publication of printed matter or by a broadcast, the country 
in which the most significant element or elements of the damage occur or are likely to occur shall be 
deemed to be the country to which the publication or broadcasting service is principally directed or, if 
this is not apparent, the country in which editorial control is exercised, and that country's law shall be 
applicable.  The  country  to  which  the  publication  or  broadcast  is  directed  shall  be  determined  in 
particular  by  the  language  of  the  publication  or  broadcast  or  by  sales  or  audience  size  in  a  given 
country as a proportion of total sales or audience size or by a combination of those factors.  

This provision shall apply mutatis mutandis to publications via the Internet and other electronic 

networks. 

2.  The  law  applicable  to  the  right  of  reply  or  equivalent  measures  and  to  any  preventive 
measures  or  prohibitory  injunctions  against  a  publisher  or  broadcaster  regarding  the  content  of  a 
publication or broadcast shall be the law of the country in which the publisher or broadcaster has its 
habitual residence. 

3. Paragraph 2 shall also apply to a violation of privacy or of rights relating to the personality 

resulting from the handling of personal data.” 

The amendment was justified, according to the Parliament, because it was in 

line with the ruling of the CJEC in the Fiona Shevill case. Furthermore, considering 

that  the  closest  ties  are  with  the  country  of  the  principal  place  of  publication  or 

broadcast, favours the legal certainty of the publishers and provides a simple rule 

for all publications, including those made via the Internet. 

There  are  therefore  notable  differences  between  the  Commission's  proposal 

and that of the European Parliament. In general terms, whereas the Commission's 

choice-of-law  rule  is  based  on  application  of  the  law  of  the  country  of  the  direct 

damage (which tends to result in application of the law of the country of the habitual 

43 A6-0211/2005. 

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residence of the harmed person), the choice-of-law rule submitted by the Parliament 

favours application of the law of the country in which editorial control is exercised. 

Although  it  is  true  that  the  reference  to  the  law  of  the  country  ―in  which  the  most 

significant element or elements of the loss or damage occur or are likely to occur‖, 

appears to refer to the law of the country of locus damni, the rule itself indicates that 

those  should  be  considered  to  be  the  country  ―to  which  the  publication  or 

broadcasting service is principally directed‖ which would coincide with the country of 

the publisher's head office. Moreover, in cases involving a disseminated publication 

where  there  does  not  clearly  exist  a  country  ―to  which  the  publication  or 

broadcasting  service  is  principally  directed‖  the  law  of  the  country  where  the 

editorial control is exercised shall apply. the Parliament's proposal, therefore, quite 

clearly favours the position of the media.  

The  amendment  submitted  by  the European  Parliament  was  not  accepted  by 

the Commission. In the opinion of the Commission the new text of Article 5 came 

down excessively in favour of the publisher. Furthermore, the Commission argued 

that  the  solution  did  not  coincide  with  that  adopted  by  most  member  states.  The 

Commission  believes  that  its  initial  proposal  and  that  of  the  Parliament  are 

irreconcilable. For this reason, it considers that the most acceptable solution would 

be  to  exclude  the  issue  of  press  offences  and  similar  from  the  scope  of  the 

Regulation and, thus to remove Article 6 from its initial proposal. Nonetheless, this 

exclusion  would  only  affect  violations  by  the  press  and  similar,  with  Art.  5  of  the 

amended proposal applying to other violations of private life44. 

In  this  situation,  on  25  September  2006  the  Council  adopted  its  common 

position45,  with  regard  to  the  Rome  II  Regulation.  In  an  attempt  to  reconcile  the 

conflicting views, the text adopted in the Council's Common Position excludes the 

issue  of  violations  via  the  press  and  similar  from  the  scope  of  Rome  II.  It  goes 

further, however. The Council, not limiting the exclusion to the matters suggested by 

the  Commission,  in  Art.  1.2  provided  that  this  exclusion  should  affect  ―non-

contractual  obligations  arising  out  of  violations  of  privacy  and  Rights  relating  to 

44 Commission, Amended proposal for a European Parliament and Council Regulation on the Law Applicable to Non-

contractual Obligations (“Rome II”) , COM(2006) 83 final, 2003/0168 (COD), p. 7. 

45Common Position (EC) No 22/2006 (OJ C 289 E, 28.11.2006, p. 68-83). 

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personality,  including  defamation‖.  The  exclusion  thus  includes  not  only  violations 

by the media, but any violation of rights relating to personality46. 

Nonetheless,  this  exclusion  must  be  considered  together  with  the  revision 

clause  of  Art.  30,  which  requires  the  Commission  to  submit  to  the  European 

Parliament, the Council and the European Economic and Social Committee a report 

on  implementation  of  the  Regulation.  This  report  must  be  accompanied,  where 

applicable,  by  proposals for adapting  the  Regulation. In  particular the  report must 

consider,  among  other  issues,  the  non-contractual  obligations  arising  out  of 

violations of privacy and rights related to personality. 

At the second reading of the codecision procedure, the European Parliament, 

ignoring the amendments proposed by the Commission and the Council with regard 

to violations of privacy and rights related to personality, again submitted the same 

text (now Art. 7) it had submitted in its first reading47.  

In this situation, the Commission's opinion on the amendments of the European 

Parliament to the Common Position of the Council on the proposal of the Rome II 

Regulation  stated  that the Commission  could  not  accept  the  special  choice-of-law 

rule relating to the violation of privacy and infringement of the rights of the person 

submitted  by  the  European  Parliament.  It  also  reiterated  that  the  rule  had  been 

rejected  at  the  first  reading.  Thus,  ―given  the  political impasse  in  the  Council,  the 

Commission would now prefer to exclude this tricky question from the scope of the 

Regulation,  as  in  its  amended  proposal,  especially  since  there  is  very  little 

international litigation in this area.‖ 

ii. The end result: exclusion of the issue 

46 This is highlighted in the Communication from the Commission to the European Parliament concerning the common 
position of the Council on the adoption of the "Rome II" Regulation, COM/2006/0566 final - 2003/0168 (COD), p. 3: ―Article 1, 
2, g) reflects the Commission's amended proposal (Article 1, 2, h) where the Commission suggested excluding violations of 
private life or rights relating to personality committed by the media. The Common Position, however, goes further. It does not 
restrict this exclusion to the non-contractual obligations assumed by the media, but extends it to all non-contractual obligations 
of this type. Ultimately, the primary reason for this approach was the inability to agree on the scope (definition) of media in this 
context‖. 

47  European  Parliament,  P6_TA(2007)0006  Law  applicable  to  non-contractual  obligations 
("ROME II") ***II European Parliament legislative resolution on the Council common position with a 
view  to  the  adoption  of  a  regulation  of  the  European  Parliament  and  of  the  Council  on  the  law 
applicable 
(9751/7/2006  –  C6-0317/2006  – 
2003/0168(COD)). 

to  non-contractual  obligations 

("ROME 

II") 

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The  impossibility  of  reconciling  the  different  interests  involved  in  this  type  of 

controversy —caused especially by the difficult balance between the right to private 

life  and  the  right  to  freedom  of  speech—  and  the  impossibility  of  reconciling  the 

texts  proposed  by  the  Commission  and  the  amendments  submitted  by  the 

European Parliament, has finally led to the exclusion of the issue of non-contractual 

obligations arising out of violation of privacy or of rights related to personality from 

the scope of the Rome II Regulation. This exclusion is expressly stated in Art. 1.2.g) 

of the Regulation. 

The  regulation  also  includes  a  review  clause  in  Art.  30.2  –the  basis  of  this 

study- which states that, 

―Not later than 31 December 2008, the Commission shall submit to the European Parliament, 
the Council and the European Economic and Social Committee a study on the situation in the field 
of the law applicable to non-contractual obligations arising out of  violations of privacy and rights 
relating to personality, taking  into account rules relating to freedom of the press and freedom of 
expression in the media, and conflict-of-law issues related to Directive 95/46/EC of the European 
Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the 
processing of personal data and on the free movement of such data (1)‖. 

It should be noted that in this age of new forms of electronic communication, 

this exclusion has failed to satisfy case law. This exclusion may to some extent be 

considered surprising, especially if one considers that damages to the rights relating 

to personality via the press was and is one of the areas most in need of clear and 

uniform  regulation,  given  that  it  is  a  field  in  which  the  international  nature  of  the 

controversy is particularly relevant48. 

48 M. Amores Conradi and E. Torralba Mendiola: ―Difamación y ―Roma II‖, AEDIPr, t. VII, 2007, p. 252. 

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4.5  COMPARATIVE ANALYSIS OF THE INTERNAL RULES OF 
CONFLICT  IN  THE  NATIONAL  LAW  OF  THE  RESPECTIVE 
EU STATES  

4.5.1  An overview 

The  result  of  excluding  the  issue  of  non-contractual  obligations  arising  out  of 

violations  of  privacy  and  other  rights  related  to  personality  caused  by  the  media 

from the scope of Rome II is that there continue to be as many rules of conflict as 

there are member states in the European Union. The existence of 27 different rules 

of conflict makes it difficult to predict what law will be deemed applicable in cases of 

privacy infringements.  

The national rules of conflict of the member states differ. The European area is 

home  to different  legal traditions  and  this diversity is also  reflected  in  the  rules of 

conflict. 

One  of  the  notable  features  is  that  most  of  the  national  legal  systems  of  the 

member  states  do  not  provide  special  rules  governing  the  issue  of  the  law  that 

applies  in  the  area  of  non-contractual  responsibility  for  damage  caused  to  rights 

relating to personality by the media.  

Only  a  few  provide  special  rules:  Hungary,  Lithuania,  Belgium,  Bulgaria  and 

Romania.  The  other  states  apply  the  general  rules  of  conflict  referring  to  the 

category of non-contractual obligations. Given the trend in international private law 

towards  specialisation  of  rules  of  conflict,  it  is  all  the  more  disappointing  that  the 

regulation of this issue lies, at present, in rules of conflict designed for categories or 

cases as broad as non-contractual obligations.  

For its part, contrary to the situation in the majority of member states, some of 

the  legal  systems  of  the  member  states  incorporate  a  choice-of-law  rule  that  is 

materially  oriented  towards  protection  of  the  harmed  person.  This  is  the  case  of 

Slovenia, Estonia, Hungary, Italy, Lithuania, Germany and Bulgaria.  

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Some of the legal systems of the member states draw a distinction between the 

law applicable to the existence and contents of rights relating to personality and the 

protection  of  these  rights  from  possible  violation.  This  is  the  case  in  Italy  and 

Portugal. 

In  Italy,  Article  24.1  of  the  1995  International Private  Law  Act  (Act  218  of  31 

May  1995),  establishes  different  connection  points  for  determining  the  law 

applicable  to  the  existence  and  contents  of  such  rights,  by  one  party,  and  for the 

consequences arising out of its violation, by another: 

 "1.  L'esistenza  ed  il  contenuto  dei  diritti  della  personalità  sono  regolati  dalla  legge  nazionale  del 
soggetto; tuttavia i diritti che derivano da un rapporto di famiglia sono regolati dalla legge applicabile 
a tale rapporto.  
2. Le conseguenze della violazione dei diritti di cui al comma 1 sono regolate dalla legge applicabile 
alla responsabilità per fatti illeciti". 

Thus,  while  the  existence  and  contents  of  the  rights  relating  to  personality  are 

regulated  by  the  subject's  national  law,  in  identifying  the  law  applicable  to  the 

consequences arising out of the violation of these rights reference is made to the 

law that applies to the responsibility for illicit acts. Thus, in the case of an alleged 

violation  of  rights  relating  to  personality,  the  liability  of  the  author  of  the  damage 

shall be established in accordance with the general rule applicable to the issue of 

liability for illicit acts. This leads to application of Article 62 of the Italian International 

Private  Law  Act,  i.e.,  the  choice-of-law  rule  applicable  to  situations  of  liability  for 

illicit acts. 

Article 27.1 of the Portuguese Civil Code contains a similar provision, stating that, 

―Aos direitos de personalidade, no que respeita à sua existência e tutela e às restrições impostas ao 
seu exercício, é também aplicável a lei pessoal‖. 

The law that determines the awarding of rights relating to personality, the contents 

of each of those rights and the restrictions on their exercise, is therefore the national 

law of the subject who enjoys such rights. However, it is the general rule of Article 

45 of the Civil Code that determines which law is applicable to the non-contractual 

responsibility arising out of the infringement of the rights relating to personality. 

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4.5.2  General rules. 

4.5.2.1  Rule of “Lex loci delicti commissi” 

In national legal systems that do not contain special rules for cases of violations 

of privacy and other rights relating to personality, the general rule used in the great 

majority  of  member  states  is  that  of  lex  loci  delicti  commissi.  Under  this  rule  the 

applicable law is that of the place where the illicit act was committed. 

However,  the  connecting  factor  of  the  lex  loci  delicti  commissi,  despite  its 

widespread  acceptance,  can  be  problematic,  notably  in  the  case  of  violations  of 

privacy via the press. On many occasions it is not easy to determine exactly where 

the offence or violation was committed, since these may be classed as ―offences at 

a distance‖ and be spread among various countries.  

An offence may be deemed to be ―at a distance‖ when the operative event of 

the damage and the result or effective damage occur in different countries.  

For its part, it is common for the damage to the rights relating to personality to 

take  place  simultaneously  in  various  countries.  This  creates  problems  when  it 

comes  to  determining  the  specific  national  law  that  should  govern  the  non-

contractual  responsibility  of  the  author  of  the  damage,  commonly  the  publisher of 

the  defamatory  report  or  information,  since,  in  principle,  more  than  one  law  may 

apply simultaneously.  

In  the  legislation  of  the  different  member states  the  criterion  of  lex  loci  delicti 

commissi  is  incorporated  unevenly  in  the  rules  of  conflict.  While  some  provide  a 

simple  rule  which  is restricted  to establishing  this principle,  others incorporate  the 

principle in a more complex form, to respond to some of the problems caused by its 

practical application.  

Moreover,  in  many  of  the  member  states,  the  general  rule  of  lex  loci  delicti 

commissi is accompanied by exceptions that often reflect either a recognition of the 

operativity of the free will of the parties in this area, or to circumstances of proximity 

such as that of the common nationality or habitual residence of the parties involved 

or the more flexible criterion of the closest ties.  

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While in some countries the lex loci delicti commissi is presented as a neutral 

criterion, in others the different versions or ways of understanding this rule  make it 

possible  to  leave  it  up  to  the  harmed  person  to  choose  the  law  that  is  most 

favourable to his interests. 

An example of the rule of  lex loci delicti commissi set out in clear and simple 

form as a connecting factor for cases of non-contractual responsibility can be found 

in Latvian law. The choice-of-law rule is set out in Article 20 of the Civil Law, which 

states that  

“Obligations  arising  from  wrongful  acts  shall  be  adjudged  in  accordance  with  the  law  of  the  place 
where the wrongful acts took place".  

Therefore, and given that no specific or special choice-of-law rule exists for the case 

of violation of privacy and rights relating to personality via the press, the law of the 

place where the wrongful act took place shall apply. In the specific field of violations 

of privacy and rights relating to personality via the media, the usual problems may 

arise  when  determining  where  the  wrongful  act  occurred,  if  the  place  of  edition, 

publication  and  distribution  and  the  place  (or  places)  where  the  damage  has 

occurred  are  not  the  same.  The  law,  does  not,  therefore,  answer  the  problems 

posed  when  the  event giving  rise  to damage and the  result  of  the  illicit  act  are  in 

different  countries,  and  it  must  therefore  be  jurisprudence  that  establishes  the 

criteria to be used in each specific case to determine where the damaging act took 

place. 

Another example, similar to the law of Latvia can be found in Greek legislation. In 

Greece, the law applicable to the obligations arising from wrongful behaviour, under 

Article  26  of  the  Civil  Code,  is  the  law  where  the  wrongful  behaviour  has  been 

committed.  This  very  general  provision  also  leads  to  the  same  problems  of 

interpretation  in  the  case  of  offences  at  a  distance  and  disseminated  or  multiple-

location  offences,  common  in  violations  of  rights  relating  to  personality  via  the 

press.  However,  Greek  jurisprudence  offers  some  guidelines  for  overcoming  the 

problems  that  arise  when  the damages are  caused  simultaneously in  Greece and 

elsewhere;  Ruling  1143/2003  of  the  Supreme  Court  of  Greece  establishes  that 

Greek courts are competent and Greek law is applicable. Jurisprudence in Greece 

has  therefore  proved  to  be  opposed  to  the  mosaic  theory,  i.e.  to  the  distributive 

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application of the laws of the states where the infringement of the rights relating to 

personality has taken place. 

Some countries that incorporate the rule of lex loci delicti commissi, in the case of a 

divergence between the place of the operative event or the event giving rise to the 

damage  and  the  place  of  the  resulting  damage,  based  on  the  texts  of  specific 

regulations, tend to rule in favour of the former, although in practice doubts can be 

seen to remain.  

This is the case of Spanish legal system, where Chapter IV Article 10.9 of the Civil 

Code governing the rules of  international private law provides that non-contractual 

obligations shall be governed by the law of the place where the act from which they 

have  arisen  took  place49.  In  the  Spanish  system,  neither  jurisprudence  nor  case 

law offers clear and decisive criteria to establish the meaning of Art. 10.9 of the Civil 

Code when there is a possibility of applying the law of the place where the event 

giving rise to the damage occurred and the law of the place where the damage is 

manifested.  Arguments  have  been  made  in  favour  of  both  criteria.  Nor  can  the 

theory of ubiquity  be  dismissed  in  Spanish  Law.  Finally,  case  law  tends  to  favour 

the introduction, by way of jurisprudential development of Art. 10.9, of the exercise 

of the parties‘ free will to choose the law applicable and the exception clauses. 

Art.  48  of  the  Austrian  Law  of  15  June  1978  on  private  International  Law  (IPRG, 

published in the Austrian Official Journal, BGBI. No. 304/1978), also states that, in 

the absence of a choice of law by the parties, disputes relating to non-contractual 

obligations are governed by the law of the State where the harmful conduct takes 

place. However, Austrian case-law has interpreted that the criterion of the  lex loci 

delicti commissi can be that of the place where the injured party  has suffered the 

affront and where the effects are felt most deeply; this place will in general be the 

habitual  residence  of  the  injured  party50.The  Austrian  conflict  of  laws  rules 

determine  the  law  that  applies  to  issues  such  as  deciding  whether  there  is  an 

obligation to indemnify, who must pay the indemnity for damages and the amount 

thereof.  

49 See J.C. Fernández Rozas and S. Sanchez Lorenzo, Derecho internacional privado, 4th ed., Pamplona, Thomson-

Civitas, 2007, 500-505. 

50 T. Kadner Graziano, La responsabilité délictuelle en droit international privé européen, Bâle, Helbing & Lichtenhahn, 

2004, pp. 80-81. 

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Along  the  same  lines  as  the  Spanish  and  Austrian  conflict  of  laws  rules,  Art.  31, 

paragraphs 1 and 2, of the private International Law of Poland provide that a non-

contractual  obligation  is  governed  by  the  law  of  the  country  where  the  act  that 

constitutes the source of the obligation took place. In Luxembourg, the liability of the 

author  of  the  harm  is  governed  by  the  law  of  the  place  where  the  harmful  act 

occurred.  Finally,  in  Sweden,  the  issue  of  the  law  applicable  to  non-contractual 

obligations  is  not  governed  by  the  Law  of  12  November  1965  on  Private 

International Law. However, in the order in case ref. NJA 1969 s. 163, case-law has 

maintained  that,  in  relation  to  non-contractual  issues,  liability  to  indemnify  for 

damages is determined according to the law of the country in which the harmful act 

occurred  (lex  loci  delicti  commissi).  In  that  case,  the  fact  that  the  person  who 

caused  the  harm  and  the  person  who  suffered  it  might  have  the  same  habitual 

residence was not taken into account. There is no case-law that deals with the issue 

of which law would apply when the country where the act that caused the harm took 

place and the country where the harm actually occurred are different. 

Some national laws incorporate the rule of ubiquity. According to this rule, in cases 

of tortuous acts committed at a distance, the lex delicti commissi relates to both the 

law of the place where the causal event takes place and also to the law of the place 

where the harm is manifested. Whereas the place where the causal act takes place 

tends to be identified with the place of habitual residence of the author of the harm 

(as has been made evident in the case-law of the TJCE in the Fiona Shevill case), 

the  place  where  the  harm  is  manifested  tends  to  be  identified  with  the  place  of 

habitual residence of the victim. However, the interpretative decision of the TJCE to 

regard the head office of the publisher as the place of the causal event is still to a 

certain  extent  unsatisfactory;  the  place  of  publication  or  the  place  where  the 

defamatory notice or information is distributed could also be argued to be the place 

of the causal event. 

Art. 62.1 of the private International Law of Italy provides that: 

"1. La responsabilità per fatto illecito è regolata dalla legge dello Stato in cui si è verificato l'evento. 
Tuttavia il danneggiato può chiedere l'applicazione della legge dello Stato in cui si è verificato il fatto 
che ha causato il danno‖.  

This article clearly incorporates the rule of ubiquity. Although the general rule is that 

liability  derived  from  a  tortious  act  is  governed  by  the  law  of  the  State  where  the 

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harm is confirmed, the injured party may request application of the law of the State 

where the act that caused the harm has been confirmed. It is noted that the Italian 

rule favours the position of the injured party, giving him the opportunity to choose to 

apply, in these cases, the rule that is most favourable to his interests. In the case of 

violations  of  privacy  and  other  personality  rights,  the  issue  will  be  to  determine 

which is the place where the causal event occurs (the place of habitual residence of 

the publisher, the place of publication or the place where the defamatory notice or 

information is distributed, or all of these) and which is the law of the place where the 

harm is manifested (the place of publication or distribution of the defamatory notice 

or information or the place of habitual residence of the injured party, or all of these). 

In the case of Germany, the rule of ubiquity also comes into play. Article 40 of 

the  EGBGB  provides  that  claims  for  damages  arising  from  tortuous  conduct  are 

governed, in principle, by the law of the country where the tortuous act occurred (lex 

loci delicti  commissi).  However, the  victim  may  require  that  the  law of  the  country 

where the breach of the legal right occurred shall be applied. According to case-law, 

in German law, the applicable law may be that of the place where the publication 

appeared  (which  is  generally  the  place  of  the  publisher‘s  head  office)  and  the 

various places of distribution (where it has been made available for sale)51. 

As  we  can  see,  injured  parties  have  the  right  to  choose  and  may  ask  that, 

instead of the law of the place where the tortuous act was committed, the law of the 

State  where  the  result  occurred  shall  be  applied.  This  is  usually  the  place  of  the 

victim‘s  habitual  residence  and,  in  particular,  each  place  of  distribution.  In  reality, 

the  applicable  law  of  the  place  where  distribution  took  place  will  only  be  relevant 

when the injury is suffered in each of the places where such distribution occurred 

(the mosaic system). In the event that it occurs in different States, the victim has the 

right to choose to assert the indemnity in each State but the claim will be limited to 

the damages occurring in each State.  

According to the laws of Slovakia and the Czech Republic, the conflict of laws 

rules applicable to cases of infringement of personality rights are found in Law No. 

97/1963, on International Private And Procedural Law. There are no specific rules 

that  govern  cases  of  infringements  of  personality  rights  and  so  the  general  rules 

51 Ibid., pp. 77. 

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relating  to  non-contractual  obligations  will  apply.  According  to  Art.  15  of  the  Law 

(current in both States): 

"Claims to compensation of damages shall be governed by the law of the place where the 
damages occurred or by the law of the place where it came to the event that justifies the right to 
compensation  of  damages  unless  the  matter  is  non-fulfilment  of  an  obligation  following  from 
agreements or other legal acts”. 

Therefore,  according  to  the  rule  of  ubiquity,  claims  for  compensation  for 

damage caused to personality rights will be governed by the law of the place where 

the damage occurred or by the law of the place where the act that gave rise to the 

damage took place. 

In  Holland,  the  Law  on  conflict  of  laws  in  relation  to  tortuous  acts  (Wet 

conflictenrecht onrechtmatige daad) provides that a tortuous act will be governed by 

the law of the State where that act occurred (Article 3, paragraph 1, of the WCOD). 

However,  there  are  several  exceptions  to  this  rule,  for  example,  when  the 

consequences  of  an  act  are  suffered  in  a  State  other  than  the  State  where  it 

occurred, this latter law may be applied52. 

Alongside the aforesaid laws of the Member States that clearly incorporate the 

rule of ubiquity, there are other laws that envisage particular solutions. 

In French Law, the general rule relating to the law applicable to non-contractual 

obligations is found in Art. 3 of the Civil Code. According to this rule: 

52 District Court of Arnhem, February 14, 1997, NIPR 1997, 247. The Chairman of the Arnheim 
District  Court  must  decide  on  a  case  in  which  certain  Dutch  claimants  argue  the  liability  of  the 
German  magazine  ―Stern‖  for  the  damage  caused  to  their  reputation  and  good  name  by  a 
publictaion. The claiamants who reside in Curacao are claiming against the jounralist who wrote the 
article,  who  lived  in  Holland.  The  new  magazine  was  published  in  Germnay  and  in  Holland. 
According  to  the  Chairman,  Dutch  law  applied  because  the  distribution  of  the  publication  and  the 
consequences of the damage mainly occur in Holland. In another case, Court of Appeal, January 11, 
1996,  NIPR  1997,  333,  between  the  Dutch  corporation  Ahold  and  the  Russian  corporation  Tonar, 
Dutch law was also applied by the Court of Appeal of Amsterdam. However, unlike the situation in 
the  previous  example,  the  article  was  only  published  in  Holland,  whereas  the  damage  affected  a 
foreigner  (Tonar).  Ahold  and  Tonar  had  signed  a  collaboration  agreement.  After  one  year,  Ahold 
terminated the agreement with Tonar. A journalist from a Dutch newspaper asked Ahold what had 
happened and, with the information obtained, he had published an article about this. Tonar believed 
that the article misrepresented the reality of the situation., The Court decided that Dutch law applied 
to this case because the statements in the newspapers were made in Holland, by and on behalf of a 
Dutch organisation to the journalist and for a Dutch public. In this case, there was no argument that 
could prove that the harmful consequences had extended beyond Holland. Vid. also Dutch Supreme 
Court November 19, 1993, NJ 1994, 622, and Dutch Supreme Court November 19, 1993, NJ 1994, 
622, ground 4.2. 

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CC “Le lois de police et de sûreté obligent tous ceux qui habitent le territoire. Les immeubles, 
même ceux possédés par des étrangères, son régis par la loi française. Le lois concernant l‟état et la 
capacité des personnes régissent les Français, même résidant en pays étrangère‖. 

This is a confusing statement which firstly involves regarding the rules relating 

to  liability  for  an  offence,  in  the  sense  of  the  Civil  Code,  as  police  laws  and 

submission to the criterion of residence in the territory, which is also imprecise and 

allows of various interpretations53.  

In cases of tort, case-law has generally chosen the law of the place where the 

offence  was  committed  (lex  loci  delicti  commissi),  which  has  been  the  traditional 

solution of case-law and doctrine since the Middle Ages. The rule was established 

by the Lautour and Luccantoni decisions of the Cour de Cassation54. 

There  are  numerous  arguments  in  favour  of  this  opinion.  It  is  the  only  neutral 

criterion of connection in the absence of a determining reason for choosing the law 

of  the  victim  over  and  above  that  of  the  author  or  the  other  way  around.  The 

consequences of the offences or quasi-offences are associated to the State of the 

territory  against  which  the  offence  was  committed.  The  law  of  the  place  of  the 

offence and the law of the forum often coincide since the Court of the place where 

the  harmful  event  was  committed  has  jurisdiction  (Art.  46  new  Civil  Code  of 

Procedure and Art. 5.3 Lugano Convention and of the Brussels Regulations I).  

Therefore,  in  the  absence  of  International  Treaties  which  state  to  the  contrary, 

according to French case-law, non-contractual obligations are governed by the law 

of  the  place  where  the  act  from  which  they  arose  took  place55.  In  the  case  of  a 

53 P. Mayer y V. Heuzé, Droit Internacional privé, Montchrestien, 9 ed, 2007, Paris, p. 511. 
54 Arrêt d‘une chambre civil de la Cour de Cassation 25 mai 1948, Rev. Crit. DIP 1949.89, note 
Battifol y Arrêt d‘une chambre civil de la Cour de Cassation 1ere, 1 juin 1976, Recueil Dalloz 1977 
257 note Monéger, Juris Classeur 1977.91, note Audit. 

55 Arrêt d‘une chambre civil de la Cour de Cassation 1ere, 1 juin 1976, Recueil Dalloz 1977, 
257  note  Monéger,  Juris  Classeur  1977.91,  note  audit.  16  avril  1985,  Bulletin  des  arrêts  des 
chambres civiles de la Cour de cassation I, n° 114. In the same sense as the above : Arrêt d‘une 
chambre  civil  de  la  Cour  de  Cassation  25  mai  1948,  Dalloz  1948  357  note  PLP,  Juris  classeur 
périodique (Semaine juridique) 1948, II, 4542, note Vasseur. Arrêt d‘une chambre civil de la Cour de 
Cassation 1ere, 30 mai 1967, Recueil Dalloz 1967 629 note Malaurie. 28 octobre 2003, Bulletin des 
arrêts des chambres civiles I, n° 219 ; Rapport annuel de Cour de cassation p. 477 ; Dalloz 2004, 
233,  note  Delebecque;  Juris  classeur  2004,  II  10006,  note  Lardeux ;  Responsabilité  civil  et 
assurances  2004 n° 30, note Groutel; Petites affiches 23 décembre 2003, note P. Ancel.  Paris 16 
janvier de 1997, Journal de Droit International (Clunet) 1997, 987 note Légier , reference to the place 
where the damage occurred and where the interest in question has been violated. 

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compound or complex offence, case-law investigates and seeks out the country that 

has the closest links to the harmful act56. 

Specifically  in  cases  of  violation  of  personality  rights,  the  issue  becomes 

complicated.  The  classification  of  this  category  of  offence  as  being  connected  to 

non-contractual  obligations  presents  certain  problems.  Firstly,  this  type  of  offence 

cannot be set within a uniform category but is diversified according to the rights that 

are being protected (right to privacy, right to private or family life, right to image, to 

decency) or according to the materials and technologies that serve to support them 

(press, radio, Internet) or from the point of view of the means of protection of people 

who  are  victims  (whether  civil  or  criminal  means  of  protection).  This  diversity 

necessarily influences the determination of the place of the offence as the conflict of 

laws  rule  and,  from  this  point  of  view,  a  certain  flexibility  must  be  accorded  and 

other points  of  connection  must  be  taken  into  account,  such  as  the  act  that  gave 

rise to the damage, the domicile or residence of the victim, whilst the classification 

of the offence in favour of jurisdictional law cannot be completely abandoned. In this 

sense, the use of associated points of contact whether or not associated to these 

rules of conflict must also be suggested57. 

In  cases  of  attacks  against  the  person,  claimants  generally  set  themselves 

―spontaneously‖ within the area of influence of civil liability under Art. 9.2 of the Civil 

Code. The Cour de Cassation has declared that the consequences of a violation of 

the private life of a person or of an infringement of a right that that person has over 

his image will be governed by the law of the place where the infringement occurred, 

thus evoking the classification of the offence.  

This choice is complicated when the acts occur in different places and the element 

of  the place of  commission  dissolves.  In  this case, the  choice  should be  made  to 

assert the harm over the act giving rise to it and, for a resolution of the conflict, to 

choose  the  domicile  of  the  claimant  or  of  its  principal  activity.  (Gaudemet  Tallon 

order 1976). The claimant can also be given the possibility of choosing in favour of 

the place of the establishment of the author of the violation. But the solution most in 

56 Arrêt d‘une chambre civil de la Cour de Cassation 1ere, 11 mai 1999, Bulletin des arrêts des 
chambres civiles I, n° 153 ; Recueil Dalloz 1999, sommaire 295, observations Audit ; Juris Classeur 
périodique (Semaine Juridique) 1999 II 10183, note Muir Watt ; Revue critique DIPr 2000, 199, note 
Bischoff ; Juris Classeur 1999 1048 note Légier  

57Vid. Y. Loussouarn, P. Bourel et P. De Vareilles Sommieres, Droit International privée, Dalloz, 8 ed. Paris, 2004. 

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line  with  reality,  according  to  French  case-law,  seems  to  be  to  consider  that,  in 

cases of a violation made through the press, where its distribution causes different 

damage in each country, the laws of the different countries where the violation has 

occurred  should  be  applied  by  distribution.  This  option  would  involve  taking  into 

account  the  local  distribution  criterion  and  assessing  the  damage  in  each  country 

differently58.  

In short, in case-law concerning violations of private life or against infringement 

of the right to image, the law of the place where the acts were committed has been 

chosen. French case-law has regularly used the criterion of the place of distribution 

in matters concerning harm to personality rights through the press, when discussing 

the criterion of the place of commission of the acts59. 

In  Slovenia,  there  is  no  special  conflict  of  laws  rule  for  cases  of  non-contractual 

obligations derived from the infringement of privacy or personality rights through the 

press. Therefore, the applicable rule will be the general rule envisaged for cases of 

non-contractual  obligations.  This  is  Art.  30  of  the  Private  International  Law  and 

Procedural Act. The first paragraph of this rule provides that: 

“For non-contractual obligations for damages, the law of the place where the action was committed 
shall  be  used.  If  it  is  more  favourable  for  the  injured  party,  the  law  of  the  place  where  the 
consequence occurred shall be used instead, but only if the perpetrator could not have foreseen or 
should have foreseen the location where the consequence occurred. 

This  is  a  conflict  of  laws  rule  based  on  the  criterion  of  the  lex  loci  delicti 

commissi  which  incorporates  the  rule  of  ubiquity  but  in  a  somewhat  particular 

manner,  by  establishing  it  conditionally.  That  is,  in  order  for  the  law  of  the  place 

where the harm occurred to apply, instead of the law of the place of commission of 

the act, on the one hand, it must be more favourable to the victim and, on the other 

58 B. Audit, Droit International Privé, 4 ed Economica. 2006, Paris. On this point, in the Yasmina Aga Khan order of 

1976, French law and German law are applied distributively. 

59 Trib. gr. inst. Paris (1er Ch) 27.04.1983 (Carolina de Monaco c.  Soc. Burda GmbH) rev. crit. 
1983, 672; Trib. gr. inst. Paris (1er Ch) 29.09.1982 (Romy Schneider c. les Editions Heinrich Bauer 
Verlag),  rev.  cri.  1983,  671;  Trib.  gr.  inst.  Paris  (3er  Ch)  23.06.1976  (Dlle.  Aga  Khan  c.  soc.  Axel 
Springer  er  autre),  rev.  crit.  1978,  132;  Concerning  the  principle  of  the  lex  loci  delicti  in  cases  of 
tortuous acts caused through the press, see also, Cour de Cassation (1re Ch. civ.) 13.04.1988 (soc. 
jours de France c. Farah Diba), rev crit. 1988, 546, note Bourel; Juris classeur  périodique (Semaine 
juridique)  1988 II 21320 note Putman. In the same sense,  Paris 13 Janvier 2003,  Juris classeur 
périodique (Semaine juridique) 2004 II , 10018 note Chabert. 

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hand, the perpetrator should have been able to foresee that the consequences of 

his act would be manifested in that place. 

In Estonia, the conflict of laws rule applicable to cases of violations of privacy 

and other personality  rights  establishes  the  rule of  ubiquity  conditionally  and  on a 

somewhat particular basis. In order to determine the law that applies in these cases, 

the  provisions  of  the  Estonian  International  Private  Law  Act  of  2002  must  be 

studied.  The  rules  to  be  taken  into  consideration  are  the  articles  from  50  to  54. 

There  is  no  specific  rule  that  applies  to  infringements  of  these  rights  through  the 

press. Therefore, these cases will come under the general rules for non-contractual 

obligations.  Art.  50  of  the  Estonian  International  Private  Law  Act  sets  out  the 

general rule. According to this rule: 

―(1) Claims arising from unlawful causing of damage shall be governed by the law of the state 

where the act or event which forms the basis for causing the damage was performed or occurred.  

(2)  If  the  consequences  do  not  become  evident  in  the  state  where  the  act  or  event  which 
formed the basis for causing the damage was performed or occurred, the law of the state where the 
consequences  of  the  act  or  event  became  evident  shall  be  applied  at  the  request  of  the  injured 
party‖.  

In cases of non-contractual obligations derived from tortuous acts therefore, the 

Estonian Courts will apply the law of the State where the harmful act was carried 

out or took place. However, if the consequences, that is, the harm, is not evident in 

the State where the act that caused the harm took place, the law of the State where 

the consequences of the act or the event are evident will be applied. This latter law 

will only apply if the injured party so requests, that is, the victim of the tortuous act. 

The  intention  is thus  to protect  the  victim  by  giving  him  the option of  choosing,  in 

these specific cases, to apply the law that is most favourable to his interests, in turn 

allowing him to avoid application of a law that in no way provided for this situation. 

Finally,  according  to  the  Portuguese  conflict  of  laws  rule  relating  to  non-

contractual  obligations,  the  rule  of  ubiquity  is  also  envisaged  in  application  of  the 

criterion  of  the  lex  loci  delicti  commissi  which  follows  this  rule.  However,  in  the 

above examples, this rule takes a particular format and is conditional. According to 

the first and second paragraphs of Art. 45 of the Portuguese Civil Code, 

“1.  A  responsabilidade    extracontratual  fundada,  quer  em  acto  ilícito,  quer  no  risco  ou  em 
qualquer  conduta  lícita,  é  regulada  pela  lei  do  Estado  onde  decorreu  a  principal  actividade 

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causadora do prejuízo; em caso de responsabilidade por omissão, é aplicável a lei do lugar onde o 
responsável deveria ter agido. 

2. Se a lei do Estado onde se produziu o efeito lesivo considerar responsável o agente, mas 
não o considerar como tal a lei do país onde decorreu a sua actividade, é aplicável a primeira lei, 
desde que o agente devesse prever a produção de um dano, naquele país, como consequência do 
seu acto ou omissão”. 

Therefore,  as  a  first  rule,  non-contractual  obligations  for  violations  of  privacy 

and other personality rights are governed by the law of the State where the principal 

activity that caused the harm takes place.   However, if this law does not regard the 

author  of  the  harm  as  liable  but  the  law  of  the  State  where  the  harmful  effect  is 

suffered  does  consider  him  to  be  responsible,  then  this  latter  law  will  apply, 

provided that the author could or should have foreseen that, as a consequence of 

the act or omission, the harm would occur in this State. As a result, in order for the 

rule of ubiquity to come into play, a double condition must be met: firstly, the law of 

the State where the principal activity that causes the harm takes place should not 

consider the author to be responsible for that harm. Secondly, in order for the law of 

the place where the harm occurred to apply, it is necessary for the author to have 

been able to foresee that his act could cause harm in that State. 

4.5.2.2  “Double actionability” rule. 

The  common  law  States  (United  Kingdom,  Ireland,  Malta  and  Cyprus)  have 

traditionally had a particular conflict of laws rule to determine the applicable law in 

relation to non-contractual obligations. Known as the ―double actionability rule‖, its 

origin is in three English orders of the XIX century60 and it has been maintained as a 

general  rule,  although  with  certain  variations  introduced  by  case-law61,  until  very 

recently.  

At  present,  the  almost  complete  supremacy  of  the  double  actionability  rule  is 

owed principally to the adoption in the United Kingdom of the  Private International 

Law  (miscellaneous  Provisions)  Act  1995,  Part.  III,  in  Choice  of  Law  in  Tort  and 

Delict.  

60 The Halley (1868), LR 2 PC 193, Phillips v. Eyre, 1870, LR 6 QB 1 and Machado v. Fontes, 1897, 2 QB 1. 
61 Lords Wilberforce and Hodson in the case Boys v. Chaplin (1971) AC 356 and by the decision of the Privy Council in 
the case Red Sea Insurance v. Bouygues SA (1994) 3 All ER 749 (CA). Vid. In respect of case-law development P. Rogerson, 
―Choice  of  Law  in Tort:  A  Missed  Opportunity?‖,  ICLQ,  vol.  44,  no. 3,  1995,  pp. 650-658;  A.  Mayss,  ―Statutory  Reform  of 
Choice of Law in Tort and Delict: A Bitter Pill or a Cure for the Ill?‖, Web Journal of Current Legal Issues, 1996, available on 
http://www/ncl.ac.uk/~nlawwww/1996/issue2/mayss2.html;  a  more  complete  vision  of  case-law  development  wherein  is  the 
origin of the double actionability rule is to be found in P.M. North, ―Reform, But Non Revolution‖, R. des C., t. 220, 1990-I, pp. 
206 y ss. 

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However,  in  spite  of  the  importance  of  the  Private  International  Law 

(miscellaneous  Provisions)  Act  1995,  the  double  actionability  rule  continues  to  be 

the  conflict  of  laws  rule  to  be  used  in  determining  the  law  applicable  to  disputes 

relating  to  non-contractual  obligations  derived  from  defamation.  It  is  possible  to 

maintain that the double actionability rule, which was the general rule in other times, 

has undergone a kind of conversion into a special rule for defamation disputes.  

In  the  laws  of  the  United  Kingdom,  therefore,  there  is no  conflict  of  laws  rule 

with a legal basis that relates to the law applicable to cases of defamation. In fact, 

Section  13  of  the  Private  International  Law  (miscellaneous  Provisions)  Act  1995, 

Part.  III,  on  Choice  of  Law  in  Tort  and  Delict,  excludes  defamation  claims.  This 

provision provides that: 

―1. Nothing in this Part applies to affect the determination of issues arising in any defamation claim. 
2. For the purposes of this section “defamation” claims means – 
a. Any claim under the law of any part of the United Kingdom for libel or slander or for slander of title, 
slander  of  goods  or  other  malicious  falsehood  and  any  claim  under  the  law  of  Scotland  for  verbal 
injury; and 
b.  Any  claim  under  the  law  of  any  country  corresponding  to  or  otherwise  in  the  nature  of  a  claim 
mentioned in paragraph (a) above.‖ 

However,  within  infringements  caused  by  the  media,  cases  of  defamation  or 

calumny,  verbal  insults  or  similar  cases,  it  is  not  clear  whether  these  cover  all 

possible cases of infringement or violations of personality rights. 

The exclusion of Section 13 has led case-law to give specific answers.  

English case-law has traditionally used the double actionability rule, according 

to which the dispute, in cases of non-contractual obligations, had to be actionable in 

accordance with both the lex loci delicti and the lex fori. Over time, this criterion has 

been  replaced  by  the  rule  of  the  lex  loci  delicti;  clearly  (although  cases  of 

defamation  are  expressly  excluded)  from  the  adoption  of  Part  III  of  the  Private 

International Law (miscellaneous Provisions) Act 1995. 

Nowadays,  this  cumulative  criterion  (lex  loci  delicti  and  the  lex  fori)  or  the 

common  law double actionability  rule  is maintained  in  disputes  concerning  liability 

within  the  framework  of  cases  of  defamation,  since  they  are  excluded  by  Section 

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1362. Thus, cumulative application of the law of the place of distribution and the lex 

fori is required.  

The double actionability rule of the common law, as manifested by Section 10 

of the Private International Law (miscellaneous Provisions) Act 1995 which provided 

for its abolition: 

―a) require actionability under both the law of the forum and the law of another country for the 
purpose of determining whether a tort or delict is actionable; or b) allow (as an exception from the 
rules  falling  paragraph  (a)  above)  for  the  law  of  a  single  country  to  be  applied  for  the  purpose  of 
determining the issues, or any of the issues, arising in the case in question‖. 

The  double  actionability  rule  is  applied  in  claims  brought  before  the  English 

courts  for  harmful  actions  carried  out  by  the  defendant  abroad.  When  the 

defendant‘s actions that caused the harm took place in the United Kingdom, there 

are  no  problems  in  United  Kingdom  law  concerning  the  applicable  law,  even  in 

cases that have substantial connections with another country.  

In order to satisfy the double actionability rule, the claimant must prove that the 

defendant  had  been  responsible  under  national  law  if  the  facts  took  place  in 

England and that, by his conduct, he has incurred civil liability according to the law 

of  the  place  where  he  committed  the  tortuous  act.  However, this rule  may  be  the 

object of a flexible interpretation in cases where its application can lead to an  

injustice and, in this case, the law that has the most significant connections to the 

act is applied and thus the liability of the defendant is established63. 

The principal motive for the exclusion from the subject of the personality rights 

of the International Law (miscellaneous Provisions) Act 1995 has been the fear that 

freedom  of  expression  (in  particular,  that  of  the  press)  would  be  prejudiced  by 

application  of  the  new  conflict  of  laws  rules64.  The  aim  is  therefore  to  safeguard 

freedom  of  expression,  as  provided  by  the  English  laws,  in  the  event  of  possible 

application of foreign laws that are more restrictive as regards this freedom. 

The impact of the double actionability rule, as it has been developed by the law, 

principally  case-law,  of  the  United  Kingdom,  is  very  important.  In  this  respect,  we 

62 C.G.J. Morse, ―Torts in Private International Law: A New Statutory Framework‖, ICLQ, vol. 45, no. 4, 1996, pp. 889.  
63 P. Rogerson, ―Choice of Law in Tort…‖,loc. cit., p. 650. 
64 C.G.J. Morse, ―Torts in Private International Law...‖, loc. cit., p. 891. 

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should remember that the source of the conflict of laws rules of Malta is basically in 

the conflict of laws rules of the United Kingdom. At present, there is no Maltese law 

that  clearly  establishes  its  own  conflict  of  laws  rules.  As  a  consequence,  legal 

decisions are the only national source of these rules, which interpret and apply the 

conflict  of  laws  rules  of  the  United  Kingdom;  this  is  the  double  actionability  rule 

according to the case-law interpretation made in the cases Phillips v. Eyre (1870), 

Boys v. Chaplin (1971) and Red Sea Insurance v. Bouygues SA (1994). 

The  same  considerations  serve  for  Cyprus.  The  Cypriot  jurisdiction  is  a 

common  law  jurisdiction  and  the  common  law  principles  of  English  law  will  be 

applied in the courts of Cyprus when there is no specific rule or case-law in Cypriot 

law  for  the  specific  case65.  This  point  has  been  acknowledged  by  the  courts  of 

Cyprus in the case Cochino v. Irfan66. 

With regard to non-contractual obligations, according to the private international 

law of Cyprus, the central issue is the following: when a claim is presented to the 

courts of Cyprus based on events that occurred in another State, should the Cypriot 

courts declare themselves competent? And, if so, which law should they apply? 

When  the  tort  occurs  in  Cyprus,  the  courts  will  apply  the  substantive  law  of 

Cyprus.  This  is  the  same  solution  provided  by  English  law.  This  option  has  been 

confirmed  by  the  Supreme  Court  of  Cyprus  in  the  case  Georghiades  and  son  v. 

Kaminaras67 (application of the lex loci delicti commissi). 

In  cases  of  defamation  that  occurred  abroad,  the  courts  of  Cyprus  will  apply 

English private international law. In this way, the double actionability rule will apply. 

In  order  for  the  Cypriot  courts  to  be  able  to  hear  the  claim,  it  must  be  actionable 

both in accordance with the law of the State where the tort occurred (lex loci delicti) 

and in accordance with the law of Cyprus (lex fori). 

The court in the Coupland v. Arabian Gulf Oil Co. Case considered that, once 

the  double  actionability  requirement  had  been  met,  the  law  in  accordance  with 

which  the  court  must  decide  should  be  the  lex  fori,  to  the  extent  that  this 

65 A. Neocleous, Introduction to Cyprus Law, Limassol, Yorkhill Law Publishing, 2000, p. 871. 
66 Cochino v. Irfan (1997) 11 JSC, 1780. 
67 Georghiades and son v. Kaminaras (1958), CLR, 276. 

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corresponds to the provisions of the lex loci delicti. This decision has been cited and 

approved by the Supreme Court of Cyprus in the Safarino v. Stavrinou case68. 

Civil  liability  under  the  lex  fori  and  the  lex  loci  delicti  must  exist  between  the 

same parties involved in the proceedings. In the event that, under the lex loci delicti, 

the  action  can  only  be  brought  by  a  person  other  than  the  claimant  himself,  this 

action may not be filed in Cyprus. In the same way, if the defendant according to the 

foreign law cannot be sued in accordance with the lex fori, this action may not be 

brought69. 

The  general  rule  of  double  actionability  does,  however,  have  an  exception. 

According  to  this  special  rule,  in  specific  cases,  the  court  may  apply  another  law 

when this presents closer links to the case and the parties. This exception increases 

the flexibility of the rule and cases of injustice that might arise as a consequence of 

the application of the general rule are avoided70, although it also has the effect of 

increasing legal uncertainty. 

The solution adopted by Irish law with regard to the conflict of laws rule relating 

to non-contractual obligations has been developed along with the evolution of other 

common law laws.  

However,  the  double  actionability  rule  of  the  Anglo-Saxon  laws  was  radically 

rejected  in  the  mid-eighties.  The  decision  of  the  Supreme  Court of  Ireland,  in  the 

Grehan v. Medical Incorporated and Pine Valley Associates (1986) case, criticised 

and rejected the double actionability rule established in the  Phillips v. Eyre case71. 

The Supreme Court of Ireland stated that: 

in 

the 

Law 

Field 

Liability 

of  Nuclear 

68 Cf. A. Neocleous, Introduction..., op. cit., p. 883. 
69 Cf. Ibid., p. 883. 
70 Cf. Ibid., p. 883 
71 Vid. P.M. North, ―Reform…‖, loc. cit., pp. 231 y ss.; O‘Higgins, P. and P. Mc. Grath: ―Third 
Party 
at 
http://www.nea.fr/html/law/nlb/nlb-70/007_021.pdf, p. 18. Subsequently, in the An Bord Trachtala v. 
Waterford Foods Ltd case, High Court, 25 November 1992, the court opted for the traditional double 
actionability rule. However, the comments made by the Supreme Court in the  Shortt v. Ireland, the 
Attorney General and British Nuclear Fuels Limited (1997)  case, concerning issues of international 
legal  jurisdiction  and  applicable  law,  are  of  great  interest.  In  this  decision,  the  court  stated  that: 
―Prima facie it is difficult to see how any provision of English law could make legal in Ireland injury or 
damage  which  would  otherwise  be  tortuous  under  Irish  law.  Certainly  it  is  hard  to  see  how  any 
provision of UK  law could deprive the Irish courts of jurisdiction  which they would otherwise have. 
Prima facie the relevant law would appear to be the lex loci delicti rather than the law of the United 
Kingdom‖. 

Perspective‖, 

Irish 

and 

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“the rule in Phillips v, Eyre… has nothing to recommend it because it is capable of producing 
quite arbitrary decisions and it is a mixture of parochialism and a vehicle for being, in some cases 
unduly generous to the plaintiff and, in others, unduly harsh. In my view, so far as choice of law in 
torts is concerned, the Irish courts should be sufficiently flexible to be capable of responding to the 
individual issues presented in each case and to the social and economic dimensions of applying any 
particular choice of law rule in the proceedings in question”. 

The Court has adopted a flexible position in respect of the conflict of laws rule 

to  be  used  in  cases  of  non-contractual obligations.  It seems  to  defend  the  use  of 

different  conflict  of  laws  rules  depending  on  the  case;  conflict  of  laws  rules  that 

should  be  selected  having  regard  to  the  socio-economic  consequences  that  the 

adoption  of  one  or  another  rule  would  involve.  However,  the  alternative  that  it 

suggests  to  the  double  actionability  rule  is  not  entirely  satisfactory,  in  particular, 

because it does not establish what these rules could be. There is no reference to 

the  initial  conflict  of  laws  rule  or  to  the  alternative  solutions  nor  is  there  any 

reference to which are the significant connections or links that should be taken into 

consideration.  

It  is  therefore  possible  to  state  that,  having  rejected  the  double  actionability 

rule,  the  conflict  of  laws  rule  or  rules  of  Irish  law  are  a  source  of  marked  legal 

uncertainty. 

4.5.3  Special  conflict  of  laws  rules  for  non-contractual  civil 
obligations  derived  from  harm  caused  to  privacy  and 
other personality rights through the press. 

The trend towards specialisation of the conflict of laws rules that characterise 

the present private international law has been reflected in some of the national laws 

of the Member States. Until now, we have examined those laws where there is no 

specific conflict of laws rule for cases of non-contractual obligations derived from an 

infringement of privacy and other personality rights through the press.  

In laws that provide specific conflict of laws rules, the aim is to take account of 

the  special  nature  of  cases  of  non-contractual  obligations  relating  to  violations  of 

personality rights through the press, without thereby getting rid of the criterion of the 

lex loci delicti commissi. These special rules usually follow the theory of ubiquity, by 

incorporating  a  series  of  points  of  connection  based  on  the  criterion  of  the  place 

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where  the  causal  event  occurs  and  on  the  criterion  of  the  place  of  the  result  or 

harm. The choice between the various possible applicable laws is usually given to 

the  injured  party  although,  on  some  occasions,  freedom  of  choice  may  be 

conditional  upon  foresee  ability  by  the  author.  By  providing  for  various  points  of 

connection,  the  aim  is  to  furnish  a  response  to  tortuous  acts  committed  at  a 

distance.  Furthermore,  choice  by  the  injured  party  means  that  the  liability  of  the 

author is governed by a single law, thus avoiding distributive application of the laws 

of the States where the harm has been manifested. 

An initial point must be made with regard to the double actionability rule. This 

rule must nowadays be regarded as a special de facto rule, despite the fact that its 

origin  was a  general  rule  for any type  of non-contractual obligation.  In  fact,  in  the 

United Kingdom, at the present time, this rule only operates in cases of violations of 

privacy  or  other  personality  rights.  However,  this  rule  survives,  not  because  it  is 

regarded  as  constituting  an  appropriate  rule  for  this  type  of  dispute  (although  the 

application  of  the  lex  fori  is  justified  because  of  the  importance  of  freedom  of 

communication  and  information  in  English  law)  but  because  of  the  impossibility of 

achieving any agreement on a special rule that might provide a better response to 

the interests involved. 

In Hungary, when we refer to violations that affect personality rights, we must 

turn to Art. 10 of Law-Decree No. 13 of 1979 on International Private Law. Art. 10.1 

states  that  a  person‘s  capacity  and  also  the  status  and  rights  associated  to  the 

person  are  governed  by  personal  law.  Then,  the  second  paragraph  of  Art.  10 

provides that: 

"The law applicable in the place and at the time of the violation of rights shall apply to claims 
arising from the violation of the rights attached to one‟s person; if, however, the Hungarian law is 
more  favourable  for  the  person  suffering  the  injury  in  respect  of  the  resultant  compensation  or 
indemnification, the claims shall be adjudged according to that law”.  

If we consider that the privacy rights with which this study is concerned come 

within the area of application of this Article – as, for your party, it would seem logical 

to  think  –  Art.  32  (the  general  rule  on  the  law  applicable  to  non-contractual 

obligations) would be displaced by the necessary application of Art. 10.2.  

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Thus, although the general rule would continue to be the lex loci delicti, that is, 

the law of the place where the personality rights were violated, the play between the 

alternatives established in Art. 32 disappears72. The law applicable in the place and 

at the time of the violation of the rights associated to the person would only cease to 

be applied if it is confirmed that Hungarian law (the  lex fori) is more favourable to 

the injured party as regards the compensation or indemnity to be received.  

This  last  exception  clearly  shows  the  intention  of  the  Hungarian  legislator  to 

favour the position of the injured party73. The rule under Art. 10.2 is presented as a 

special rule, a substantially directed  conflict of laws rule that puts the protection of 

the  rights  of  the  person  over  and  above  the  right  to  freedom  of  information,  by 

providing for the application of the lex fori – which acts as the minimum standard – 

when this is more favourable to the injured person. 

The private international law rules of Lithuania provided in the Civil Code of The 

Republic of Lithuania incorporate a specific conflict of laws rule for determination of 

the law applicable to claims resulting from the violation of non-property rights of the 

person.  Art.  1.45  of  the  Civil  Code  (law  applicable  to  claims  resulting  from 

infringement of personal non-property rights) provides as follows: 

“1.  Claims  for  reparation  of  damage  resulting  from  infringement  of  personal  non-property 
rights committed by the mass media shall be governed, depending on the choice of the aggrieved 
person,  by  the  law  of  the  state  where  the  aggrieved  person  is  domiciled,  or  has  his  place  of 
business,  or  where  the  infringement  occurred,  or  by  the  law  of  the  state  where  the  person  who 
caused the damage is domiciled or has his place of business. 

 2.  Response  to  the  media  (denial)  shall  be  governed  by  the  law  of  the  state  in  which  the 

publication appeared, or the radio or television program was broadcast”. 

What is certain is that this rule is not disassociated from the criterion of the lex 

loci delicti either, because it incorporates several points of connection that can be 

regarded as different manifestations of this rule: the State where the injured person 

72  Art.  32  of  the  Law-Decree  sets  out  the  general  conflict  of  laws  rule  relevant  to  non-
contractual liability. This Article provides as follows: “(1) The law applicable at the place and time of 
the  activity  or  omission  causing  damage  shall  apply  to  the  liability  for  damage  caused  outside 
contracts,  unless  this  Law-Decree  provides  otherwise.  (2)  If  it  is  more  favourable  for  the  injured 
party, the law of that state shall  apply, in the territory of which the damage came about. (3) If the 
places of residence of the party causing the damage and the injured party are in the same state, the 
law  of  that  state  shall  apply.  (4)  If,  according  to  the  law  of  the  place  of  the  activity  or  omission 
causing  the  damage,  culpability  is  a  condition  of  liability,  the  capacity  of  culpability  may  be 
established either according to the personal law of the party causing the damage, or according to the 
law of the place of the violation of law”. 
73   T. Kadner Graziano, Gemeineuropaisches Internationales Privatrecht, Tubingen, 2002. 

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has his residence; the State where the injured person has his place of business; the 

State where the violation occurs; the State where the person who caused the harm 

has  his  residence  and  the  State  where  the  person  who  caused  the  harm  has  his 

place of business. 

Therefore,  the  criterion  of  the  lex  loci  delicti  commissi  in  this  rule  follows  the 

rule of ubiquity. It will be the injured party who selects the law from amongst any of 

the options established by Art. 1.45. The intention is thus to provide a response to 

the difficulties caused by tortuous acts committed at a distance, regarding any of the 

places provided for in the rule are foreseeable to the parties. Furthermore, it seems 

that  the  implementation  of  this  rule  has  the  effect  of  overcoming  another  of  the 

problems characteristic of violations of personality through the press: the problem of 

dissemination of the violation over several States or, which is the same thing, the 

multi-location nature of the tortuous act (either as the place of origin of the harmful 

event or as the place where the harm is manifested) in various States. In principle, 

when the injured party chooses one of the stated laws, this law will govern liability 

for all the harm caused to the injured party, thus avoiding distributive application by 

a  single  judge  of  as  many  laws  as  there  are  places  where  the  harm  has  been 

manifested. 

The Belgian Private International Law Code introduces a special conflict of laws rule 

for  cases  of  defamation  or  violations  of  private  life  or  of  personality  rights  (Art. 

99.2.1). 

Art.  99.2.1.  contains  a  specific  reference  to  violations  of  private  life  and  provides 

that the obligation derived from a harmful act in a case of defamation or violation of 

private life or of personality rights will in any event be governed by the law of the 

State in whose territory the harmful act or the harm itself occurred or threatens to 

occur, unless it is established that the liable person cannot foresee that the harm is 

going to occur in that State. 

As we can see, this is a rule that offers the injured party the possibility of choosing 

between the law of the place where the harmful act occurred and the place where 

the  harm  occurred,  whether  now  or  in  the  future.  This  is  an  application  of  the 

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concept of ubiquity in relation to the criterion of the  lex loci delicti commissi which 

tends  to  favour  the  injured  person  and  which  can  serve  to  avoid  the  problems 

caused  by  dissemination  of  the  damage  throughout  several  States,  by  applying  a 

single law to the liability of the author in respect of all instances of the harm. 

The place where the act causing the damage is located will be the place where the 

written medium has been published or the place where the programme relating the 

events has been broadcast. For its part, the place where the harm occurs normally 

tends to coincide with the claimant‘s place of habitual residence. 

However, the claimant‘s choice is not presented as unlimited but as conditional. The 

liable natural person or legal entity may argue that it could not be foreseen that the 

harm would occur in a particular territory and will thus avoid application of the law in 

that  country.  In  this  case,  it  will  only  be  possible  to  take  into  account  the  place 

where  the  causal  event  took  place.  Foresight  as  to  where  the  damage  will  occur 

depends  on  the  type  of  broadcast  (whether  the  local  press  is  involved  or  it  is  a 

programme broadcast over national channels or world satellite). The language used 

will also be an element to take into consideration. The same guidelines are applied 

for the Internet. 

The  Bulgarian  Private  International  Law  Code,  Prom.  SG.  42/17  May  2005,  also 

incorporates a special conflict of laws rule for obligations that arise from violations of 

personal rights committed by the media. According to Art. 108 of the Bulgarian DIPr. 

Code, obligations arising from violations of personal rights committed by the media 

and  especially  by  printed  editions,  radio,  television  or  other  means  of  information 

will be regulated at the injured party‘s choice by the law of the State of his habitual 

residence or the law of the State of the territory where the harm has occurred or the 

law of the State of the habitual residence or of the place where the activity of the 

person whom it is claimed is liable is carried out. This article, along the lines of the 

above-mentioned conflict of laws rule of Lithuania, uses the criterion of the  lex loci 

delicti commissi in accordance with the theory of ubiquity. For its part, the choice of 

a single law applicable by the claimant makes it possible to overcome the problems 

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raised by  multi-location harm  and  distributive application of the  laws of  the  States 

where these instances of harm are located.  

Well now, application of the rule of ubiquity is conditional in this case since, in 

order for there to be the possibility of a choice in favour of application of the law of 

the habitual residence of the injured party or of the law of the State where the harm 

has been manifested, it is necessary for the person whom it is claimed is liable to 

have been able to foresee that the harm could occur in the territory of those States. 

With  regard  to  the  right  of  objection,  Art.  108.3  of  the  Bulgarian  DIPr.  Code 

provides that, in the case of violations relating to personal rights through the media, 

this right of objection will be determined according to the law of the State where the 

publication was carried out or the programme was broadcast. Finally, provision four 

of this same article states that the foresight under paragraph 1 will also be applied 

in  relation  to  obligations  that  arise  from  the  violation  of  rights  relating  to  personal 

data protection. 

According  to  Bulgarian  law,  together  with  the  specific  provision  examined 

above,  the  general  provision  under Art.  2.2  of  the  DIPr.  Code  must  be  taken  into 

account. According to this, if the applicable law cannot be determined in accordance 

with  the  reasons  provided  in  Part  Three  (where  Art.  108  should  be  included),  the 

determination will be as to which is the legislation of the State with the closest links 

on  the  basis  of  other  criteria.  Therefore,  it  is  only  when  the  points  of  connection 

under Art. 108 are not effective (on a very few occasions) that the law that presents 

the closest links according to other criteria must be determined. 

In the case of Romania, Law No. 105 of 22 September 1992 on the Settlement 

of the Private International Law Relations regulates the issue of the law applicable 

to non-contractual obligations derived from the harm caused to personality rights by 

the  media.  The  Law,  having  regard  to  the  special  nature  of  pain  and  suffering, 

envisages specific conflict of laws rules for these cases74. Thus, Art. 112 of the Law 

provides that: 

74 R. Bogdan Bobei, Legea nr. 105/1992 cu privire la reglementarea raporturilor de Drept International Privat, 2005. 

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“(1)  The  claims  for  redress  based  on  a  prejudice  caused  to  the  personality  by  the  mass  media, 
especially  by  press,  radio,  TV  or  by  other  public  means  of  information  shall  be  governed,  at  the 
choice of the injured person, by:  
a) the law of the state of his domicile or residence;  
b) the law of the state where the damaging outcome emerged;  
c) the law of the State where the author of damage has his domicile or residence or registered office.  
(2) In cases provided under letters a) and b) it shall also be required that the author of the damage 
should  have  reasonably  expected  that  the  effects  of  the  prejudice  caused  to  the  personality  be 
produced in one of the two states”.  

This  article  coincides  in  large  part  with  the  Bulgarian  conflict  of  law  rule. 

According  to  this,  the  injured  party may  opt  for application  of  any  of  the  following 

three  laws:  the  law  of  the  State of  his domicile  or residence,  the  law  of  the  State 

where the harmful results were apparent or the law of the State where the author of 

the  damage  has  his  domicile  or  his  residence  or  his  registered  office.  By 

establishing this triple choice, the position of the victim is clearly favoured. 

However, as stated in paragraph two of the same article, in order for the injured 

party to be able to choose the laws designated by letters a) and b) (the law of the 

State of domicile or residence of the injured party or the law of the State where the 

harmful results were apparent), the following is also required: the author of the harm 

must have reasonably expected that the effects of the harm caused to personality 

would  be  caused  in  one  of  those  two  States75.  Thus,  in  some  way,  with  this 

limitation, the aim is to ensure the existence of a connection based on the foresee 

ability between the author and the causing of the harm in such a place as justifies 

the application of these laws76.  

Finally, Art. 113 of the Law provides a specific conflict of laws rule for cases of 

claim that do not involve an application for compensation but a right of response or 

rectification. In these cases, this right will be governed by the law of the State where 

the publication or broadcast took place. 

75 Vid. ibid. 
76 T. Kadner Graziano, Gemeineuropaisches…, op. cit., Tubingen, 2002. 

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4.5.4  Exceptions to the general rule of the “lex loci delicti commissi”  

The rule of the  lex loci delicti commissi, in its various expressions, is the rule 

that has the greatest presence in the national laws of the Member States in the area 

of  non-contractual  obligations  derived 

from  acts  violating  privacy  or  other 

personality  rights  through  the  press.  However,  some  of  these  national  laws 

incorporate exceptions to this general rule. As we shall see below, some laws allow, 

under certain circumstances, the play of the autonomy of  will of the parties in the 

choice of the applicable law or they give priority to the connection of the common 

residence or nationality of the parties as a point of connection in this area or they 

provide an escape clause based on the existence of closer links with another State 

or they envisage the application of the law of the habitual residence of the injured 

party or, finally, they also recognise in some cases a certain role for the lex fori. 

4.5.4.1  Autonomy of will 

The autonomy of will of the parties in violations of personality rights caused by 

the media does not play a large part in practice. The reason for its lack of use may 

be due to the fact that, in this type of litigation, two parties who are not very inclined 

to  negotiate  confront  each  other77.  However,  some  of  the  laws  of  the  Member 

States expressly envisage the possibility that the parties in dispute may choose the 

law applicable to their dispute. 

This  is  the  case  with  Estonia.  The  Estonian  International  Private  Law  Act  of 

2002 allows the play, although limited, of the autonomy of will of the parties in the 

area of non-contractual obligations, Thus, under Art. 54 of the Law, the parties can 

agree to application of the law of Estonia always after the act giving rise to the non-

contractual obligations has taken place.  

Therefore, the autonomy of will of the parties, although it is recognised in the 

Law, is limited. Firstly, their choice is limited to Estonian law. Secondly, the choice 

will  only  be  valid  if  it  is  subsequent  to  the  act  that  gave  rise  to  the  liability.  And, 

77 T. Kadner Graziano, La responsabilité délictuelle…, op. cit., p. 77. 

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thirdly, the law also provides that the choice of law may not affect the rights of third 

parties. 

In the same sense, in Germany, although under Art. 40 of the EGBGB claims 

for  damages  arising  from  tortuous  conduct  are  governed,  in  principle,  by  the 

legislation of the country where the tortuous act occurred (lex loci delicti commissi), 

in all cases, the parties, under Article 42 of the EGBGB, may choose the applicable 

law after the act that gave rise to the liability. 

Austrian  Law  recognises  to  parties  under  the  obligation  the  possibility  of 

choosing  the  law  that  will  govern  the  liability  arising  from  the  harm  caused  to 

personality rights. Furthermore, the autonomy of will of the parties is presented as 

the first criterion for determining the applicable law; it is only in the absence of this 

choice that the criterion of the place of occurrence of the harmful conduct that gave 

rise to the harm will be applied. 

In Holland, contrary to the provisions of the conflict of laws rule in the area of 

tortuous acts (Art. 3 of the Wet Conflictenrecht Onrechtmatige Daad (WCOD)), the 

parties may choose the applicable law in accordance with Art. 6 of the WCOD. 

4.5.4.2  Common nationality or habitual residence 

Another  of  the  exceptions  that  is  repeated  in  more  than  one  law  of  the  Member 

States relates to the exception of the common habitual residence of the parties. In 

this case, this special criterion is due to an argument of proximity of the litigation to 

the States of the common habitual residence of the parties. It is understood that, in 

these cases, the application of the law of the common habitual residence is in the 

best position to resolve the issue because it is the law that presents the closest links 

to the relationship, since it is the common place where both parties live their lives 

and  carry  out  their  activities  and  it  is  the  law  to  which  they  entrust  both  the 

protection of their personal rights and the regulation of their information activity. In 

some  of  the  laws,  the  connection  of  habitual  residence  appears  together  with  the 

connection of common nationality. 

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The application of the law of common nationality or residence of the person who is 

responsible and the injured party avoids the problems caused, on the one hand, by 

tortious acts at a distance and, on the other hand, by tortious acts disseminated in 

more than one State, since it indicates a single law applicable to all the harm. 

In  Italian  law,  the  second  paragraph  of  Article  62  of  Law  No.  218  on  Private 

International Law, of 31 May 1995, provides that, when the tortious act only involves 

nationals of the same State who, in turn, have their residence in that same State, 

the  law  of  this  State  will  be  applied.  This  special  connection  prevails  over  the 

general  rule  of  Art.  62.1,  according  to  which  liability  derived  from  a  tortious  act  is 

governed by the law of the State where the harm has been confirmed, although the 

injured party may request application of the law of the State where the harmful act 

has been confirmed. 

It  is  observed  that  the  special  rule  of  Italian  law  requires  that  there  should  be, 

simultaneously, common nationality of the persons involved and habitual residence 

of these persons in that same State. It is only when these two circumstances are 

met together that the law of that State will apply. This rule aims to give a particular 

response to those cases where these requirements are met and they would clearly 

have a greater connection to that other law. This is therefore due to a criterion of 

closeness which, in principle, favours both parties, since it will be the most familiar 

law to all the parties involved. 

Along the lines of the Italian law, in Poland, the cumulative appearance of common 

nationality  and  common  domicile  in  that  same  State  is  also  required.  Thus,  if  the 

parties are nationals of the same country and they have their domicile therein, the 

law of that country will apply and this will prevail over the general rule of the law of 

the country where the act that constitutes the source of the obligation took place. 

In  Germany  and  in  Holland,  for  their  part,  this  special  rule  has  certain  slight 

differences  of  meaning.  In  these  cases,  the  only  requirement  is  that  the  liable 

person  and  the  injured  party  should  have  the  same  habitual  residence,  with  no 

regard to the element of nationality.  

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Thus, according to German law, if the liable person and the injured party have the 

same residence at the time when the event that gave rise to the liability occurred, 

the law of the place where they reside will apply and this will prevail over the rule of 

the lex loci delicti commissi, although not over the autonomy of will of the parties. In 

the  case  of  associations,  companies  or  legal  persons,  it  will  be  the  place  of  their 

principal establishment or, in the case of a branch, the place where this is situated. 

A  particular  formula  is  used  by  the  Portuguese  conflict  of  laws  rule.  In  this  case, 

under Art. 45.3 of the Civil Code:  

Se,  porém,  o  agente  e  o  lesado  tiverem  a  mesma  nacionalidade  ou,  na  falta  dela,  a  mesma 
residência habitual, e se encontrarem ocasionalmente em país estrangeiro, a lei aplicável será a da 
nacionalidade ou a da residência comum, sem prejuízo das disposições do Estado local que devam 
ser aplicadas indistintamente a todas as pessoas. 

Thus, and this has priority over the general rule of the lex loci delicti commissi, 

if the author of the harm and the injured party are of the same nationality, the law of 

this State will apply. It is only in the absence of a common nationality that the factor 

of common habitual residence will become relevant. Thus, if the mentioned subjects 

do not have common nationality, the law of the State of the common residence will 

apply, provided that this point is confirmed. 

4.5.4.3  Closest links 

The general rule of the  lex loci delicti commissi is sometimes accompanied by an 

escape clause based on the criterion of the closest links.  

For  example,  Art.  30.2  of  the  Private  International  Law  and  Procedural  Act  of 

Slovenia provides that, if the law determined under the first paragraph of the article 

(lex loci delicti commissi) does not have a close connection to the relationship and 

yet there is clearly a connection to another law, this latter law must be used. This 

rule  introduces  a  noteworthy  touch  of  flexibility  into  the  rule.  It  will  be  the  Court 

which hears the case which must assess these points and decide, if appropriate, on 

the application of a law other than any of those stated in the first paragraph of Art. 

30.  In  principle,  this  law  may  be  that  of  any  other  State,  provided  that  a  close 

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connection  to  the  relationship  is confirmed.  However, the  escape  clause does  not 

operate in any case whatsoever. In order for it to apply, it will be necessary for the 

law  determined  by  the  first  paragraph  not  to  have  a  clear  connection  to  the 

relationship. If this law has a clear connection, this must be the applicable law, even 

if there is another law that has the same or, even, a greater degree of connection to 

the relationship. 

What  are  the  circumstances  to  be  taken  into  consideration  when  determining  this 

connection? In principle, the rule does not say anything about this and so the Court 

may  take  into  account  any  fact  that  it  considers  appropriate  in  order  to  show  the 

existence of a close connection. Over time, it must be case-law that identifies the 

nature  of  these  links  and  the  relevance  of  each  one  of  them.  In  the  meantime, 

together with increased flexibility, this provision introduces a note of insecurity which 

may act against the value of the rule in terms of foresee ability. 

Art.  53  of  the  Estonian  International  Private  Law  Act  of  2002  establishes  an 

exception to the points of connection of Art. 50 founded on the criteria of the lex loci 

delicti commissi, on the basis of the closest links. According to this rule, if the non-

contractual  obligation  has  a  closer  link  to  the  law  of  a  State  other  than  those 

indicated  by  the  above  conflict  of  laws  rules,  the  law  of  that  other  State  will  be 

applied. Furthermore, Art. 52 itself, in paragraph two thereof, states when a closer 

link must be understood to exist. In this sense, the closest connection may emerge 

in particular: 1) from a legal relationship or a connection of fact between the parties 

or 2) from the fact that, at the time when the harmful event occurs, the parties have 

their residence in the same State.  

There  are  some  differences  between  this  escape  clause  and  the  escape  clause 

provided for in Slovenian law. On the one hand, in this case, the escape clause may 

become relevant provided that it is shown that there is a law that has closer links to 

the  relationship  and  it  will  not  be  necessary  to  prove  the  absence  of  a  clear 

connection  between  the  relationship  and  the  law  determined  on  the  basis  of  the 

general rule of the lex loci delicti commissi. Furthermore, in this case, the rule itself 

shows  some  of  the  circumstances  or  elements  to  be  taken  into  consideration  in 

order to determine the existence of a closer connection, thus increasing the foresee 

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ability  and  legal  certainty  of  the  rule,  although  at  the  cost  of  a  certain  flexibility 

inherent to escape clauses. 

In  Germany,  Article  41  of  the  EGBGB  allows  the  applicable  law  determined  in 

accordance with the rule of the lex loci delicti commissi to be replaced by another 

law that, in special circumstances, presents much closer links to the facts.  

Austrian  law  also  allows  application  of  the  law  of  the  State  where  the  harmful 

conduct occurs to be replaced by another law, if there is a closer connection of the 

parties  to  the  law  of  that  other  State.  The  application  of  the  law  of  this  State  will 

prevail, provided that it is the same for all.  

4.5.4.4  Habitual residence of the injured party 

Application  of  the  law  of  habitual  residence  of  the  affected  person  is  not 

established  precisely  as  an  exception  to  the  general  rule  of  the  lex  loci  delicti 

commissi. The fact is that the criterion of the la lex loci delicti can lead to the place 

where  the  injured  party  suffered  the  injury and  where the  effects  are  experienced 

most  intensely;  this place generally corresponds  to  his  habitual  residence.  In  fact, 

Austrian  case-law  has  retained  this  criterion78.  Therefore,  the  place  of  habitual 

residence of the affected person may be presented as a variant of the place of the 

result.  

However, there are few laws of the Member States that expressly provide for 

the  possibility  of  using  the  law  of  the  State  where  the  injured  party  has  his 

residence.  This  is  the  case  of  Lithuania,  Bulgaria  and  Romania.  In  all  these,  the 

choice of the law of the habitual residence of the injured party is presented together 

with other laws and the injured party must choose from amongst them. 

For example, in Romania, Art. 112 of Law No. 105 of 22 September 1992  on 

the Settlement of the Private International Law Relations provides that claims based 

on harm caused to personality by the media, in particular, by the press, radio, TV or 

by any other public means of information are governed, at the choice of the injured 

party, by the law of the State of his domicile or residence, the law of the State where 

78 Ibid., pp. 80-81. 

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the harmful results were apparent or the law of the State where the author of the 

harm has his domicile or his residence or his registered office. 

However, the second paragraph of the same article states that, in order for the 

affected  person  to  be  able  to  choose  the  law  of  the  State  of  his  domicile  or 

residence or the law of the State where the harmful results were manifested, there 

is also a requirement that the author of the harm must reasonably foresee that the 

effects of the harm would be caused in one of those States79.  

In part because of this requirement that we have just mentioned, in Romania, there 

is  a  debate  as  to  whether  application  of  the  law  of  the  habitual  residence  of  the 

victim has an independent significance. According to the dominant opinion, habitual 

residence is a variant of the place of the result, so that it would only be applicable if 

an  injury  had  been  suffered  there  as  well  and  this  would  only  be  if  the  printed 

product had been distributed in that place80. It is only thus that we understand the 

limitation of the second paragraph which, for application of the law of the State of 

the victim‘s residence, requires that the author should reasonably be able to foresee 

that the harm would be caused in this State81.  

4.5.5  Conflict  of  laws  rules  substantially  aimed  at  protection  of  the  injured 

person 

One of the issues raised in this area is whether the conflict of laws rule that governs 

non-contractual obligations for harm caused to privacy and other personality rights 

through the press should be formulated as a conflict of laws rule substantially aimed 

at  protection  of  the  injured  party.  AS  a  general  principle,  the  rule  of  the  lex  loci 

delicti  commissi  is  not  a  rule  to  project  a  person  who  has  suffered  harm  to  his 

personality  rights.  It  is  presented  as  a  neutral  rule,  which  is  due  to  reasons  of 

proximity to the relationship that is governed and foresee ability of both parties.  

However, definition of the rule of the lex loci delicti commissi, in the case of harm 

committed at a distance and multi-location harm, is problematic, since it can have 

79 Vid. R. Bogdan Bobei, Legea nr. 105/1992 cu privire…, op. cit.. 
80 Cf. T. Kadner Graziano, Gemeineuropaisches…, op. cit.. 
81 Ibid. 

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various manifestations. It can refer to application of the law of the place where the 

causal act occurred (if applicable, the residence of the publisher, according to the 

interpretation of the TJCE) or to the laws of the States where the results or the harm 

caused by the causal conduct were manifested (if applicable, the habitual residence 

of the injured party). 

Although this rule is not based on an intention to protect, some laws of the Member 

States  (although  not 

to 

the  same  extent),  when 

faced  with 

the  various 

manifestations of the lex loci delicti commissi, allow the claimant (the person injured 

by the publication or broadcast of the defamatory notice) to choose the law that is 

most  favourable  to  his  interests.  These  provisions  to  some  extent  favour  the 

position of the injured party vis-à-vis the author of the harm. 

The law of Slovenia is one of the laws that to some extent favour the position of the 

injured  party.  In  this  case,  under  Art.  30  of  the  Private  International  Law  and 

Procedural Act, the law of the State where the causal conduct was committed or the 

law of the State where the consequences of that conduct occurred may apply. The 

application of one or another law depends on which is the most favourable to the 

injured  party.  This  point  clearly  reveals  the  legislator‘s  intention  to  afford  special 

protection to the injured party as compared with the interests of the perpetrator of 

the conduct (in our specific case, personality rights as compared with the rights of 

freedom of information and communication).  

However,  this  favouring  of  the  injured  party  has  certain  nuances.  Thus,  when  the 

law of the place of the result is most favourable to the injured party, this law will only 

apply when the author could have foreseen that the consequences might take effect 

in  this State.  This  requirement ensures  that  the applicable  law, although  the  most 

favourable to the injured party, does not operate contrary to the expectations of the 

author when the latter could not have foreseen that the harm would take effect in 

those States. 

A similar (but not identical) provision arises from the Belgian conflict of laws rule in 

relation to the obligation derived from a harmful act in the case of defamation or a 

violation of private life or of personality rights (Art. 99.2.1 of the Private International 

Law Code). According to this rule, these obligations will be governed by the law of 

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the State in whose territory the harmful act or the harm itself occurred or threatens 

to occur, to be chosen by the claimant,  unless the liable person establishes that he 

could not foresee that the harm would occur in that State. Therefore, by allowing the 

injured  party  the  possibility  of  choice  (although  limited)  of  the  applicable  law,  the 

latter‘s position is favoured, since it allows him to choose the position that is most 

beneficial to his interests. 

This possibility afforded to the injured party of choosing between the law of the 

State where the causal event takes place and the law of the States where the harm 

manifests itself is also reflected in German law. 

In  Hungary,  also,  the  applicable  conflict  of  laws  rule  favours,  although  in  a 

different way, the position of the injured party. In this case, according to the general 

rule, the law applicable to non-contractual obligations is the law of the place and of 

the time of the violation. Well now, if it is confirmed that the Hungarian law (lex fori) 

is more favourable to the injured party as regards the compensation or indemnity to 

be  received,  this  latter  law  will  be  applicable.  Hungarian  law,  therefore,  acts  as  a 

minimum  standard  of  protection  of  the  injured  party,  rejecting  application  of  the 

foreign  law  when  it  is  less  protective  of  the    injured  party  as  regards  the 

compensation for or indemnity of the harm. 

The conflict of laws rule of Lithuania,  Art. 1.45 of the Civil Code of the Republic 

of  Lithuania,  is  a  rule  that  clearly  favours  the  position  of  the  person  whose  non-

property rights have been harmed, that is, his personality rights.  

The  method  of  favouring  the  position  of  the  injured  party  is  formulated  by 

means  of  a  range  of  possible  applicable  laws  and  the  injured  party  himself  must 

decide from amongst these. In this way, he will choose from amongst the various 

options envisaged by the rule the option that is most advantageous to his interests. 

The rights from amongst which the injured party may choose are the following: the 

law  of  the  State  where  the  injured  person  has  his residence,  the  law of  the  State 

where the injured person has his place of business, the law of the State where the 

violation occurred, the law of the State where the person who caused the harm has 

his residence or the law of the State where the person who caused the harm has his 

place of business. 

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Romanian law provides a similar solution. In this case, under Art. 112 of Law 

No. 105 of 22 September 1992  on the Settlement of the Private International Law 

Relations, the injured party may opt for application of any of the following laws: the 

law of the State of his domicile or residence, the law of the State where the harmful 

results were apparent or the law of the State where the author of the harm has his 

domicile  or  his  residence  or  his  registered  office.  By  establishing  this  choice,  the 

position of the victim is clearly favoured.  

However, as stated in paragraph two of the same article, in order for the injured 

party to be able to choose the law of the State of his domicile or residence or the 

law  of  the  State  where  the  harmful  results  were  apparent,  the  following  is  also 

required:  the  author  of  the  harm  must  have  reasonably  expected  that  the  effects 

against personality would be caused in one of those States82. Thus, this limitation is 

intended in some way to ensure that the law that is finally applicable, although it will 

be the law that best protects the interest of the injured party, will be a law that would 

be foreseeable to the author at the time of commission of the act. 

Finally, a very similar provision to that of Romania is provided by Bulgarian law, 

both  in  respect  of  the  laws  amongst  which  the  injured  party  must  choose  and  in 

respect of the limitation on this freedom of choice.  

4.5.6  Limits on the application of foreign law 

Member  States  coincide  in  the  incorporation  of  the  exception  of  public  order  into 

their national laws. Thus, when a foreign law should be applied and it is contrary to 

the public order of the State of the jurisdictional authority charged with applying it, 

the corrective measure of international public order will mean the non-application of 

that law. By way of example, in the Spanish law, Art. 12.3 provides that: 

“The foreign law will never apply if it is contrary to public order”. 

82 Vid. R. Bogdan Bobei, Legea nr. 105/1992 cu privire…, op. cit.. 

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The international public order exception therefore has the function of safeguarding 

the basic interests of any national laws that may be harmed by the application of a 

foreign law.  

Within  the  specific  area  of  harm  caused  to  personality  rights  through  the  press, 

where a balance of interests of two fundamental rights is required – the protection of 

private  life  and  the  protection  of  freedom  of  expression-  the  general  public  order 

clause  incorporated  into  the  national  laws  of  the  Member  States  could  operate  in 

those cases where the application of a foreign law might involve a manifest violation 

of the constitutional guarantees envisaged with in favour of the private life of people 

or in favour of the right to freedom of expression.  

However, amongst the States that comprise the European framework, it is difficult to 

imagine the general public order clause operating as an exception to the application 

of the laws of one Member State in another Member State. This is not only because 

of  the  common  constitutional  tradition  of  many  of  the  Member  States  but  also 

because  of  the  existence  of  common  legal  instruments  such  as  the  European 

Convention for the Protection of Human Rights and Fundamental Freedoms or the 

Charter  of  Fundamental  Rights  of  the  European  Union.  Even  so,  this  possibility 

should  not  be  completely  dismissed  because,  despite  the  fact  that  these 

international  instruments  have  contributed  to  a  certain  rapprochement  of the  rules 

on  the  freedom  of the  press  in  the  Member States,  there  are  still  differences  with 

regard to the specific adaptation of this liberty. 

Some  of  the  laws  of  the  Member  States  provide  specific  limitations  on  the 

application of the foreign law (beyond the general public order provision) within the 

framework  of  non-contractual  civil  obligations,  which  may  be  extended  to  the 

obligations derived from violation of personality rights through the press. 

Thus,  Art.  52  of  the  Estonian  International  Private  Law  Act  of  2002,  for  example, 

provides that: 

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“If  a  claim  arising  from  unlawful  causing  of  damage  is  governed  by  foreign  law, 
compensation ordered in Estonia shall not be significantly greater than the compensation 
prescribed for similar damage by Estonian law”. 

Therefore,  application  of  a  foreign  law  may  not  lead  the  Estonian  courts  to  order 

compensation that is significantly greater than the compensation provided for similar 

damage by Estonian law. In these cases, the lex fori acts as a law of reference for 

any  foreign  laws  that  may  apply  under  the  conflict  of  laws  rule  of  Art.  50  when 

determining non-contractual civil obligations. 

Along the same lines, in Germany, Article 40.3 of the EGBGB limits, whilst with a 

special reservation for public order, the scope of a claim for indemnity arising from 

tortuous conduct. Claims submitted to a foreign law may not be relied upon to the 

extent that they significantly exceed the indemnity appropriate to the injured party, 

whether they  are  intended to  serve objectives  other than  that of  indemnity  for the 

victim or they contradict legal provisions concerning liability under a Convention to 

which Germany is a party. 

Furthermore,  as  we  have  shown  above,  according  to  Hungarian  law  -  Art.  10  of 

Law-Decree No. 13 of 1979 on International Private Law- the lex fori also plays a 

part with regard to the foreign law that will apply according to the general criterion of 

the law of the place and of the time of the violation of the right. Thus, if Hungarian 

law  is  more  favourable  to  the  person  who  suffers  the  harm  as  regards  the 

compensation  or  indemnity  to  be  received,  claims  must  be  judged  in  accordance 

with the lex fori. 

Finally, with regard to the restrictive role that may be played by national law vis-à-

vis  the  applicable  foreign  law  according  to  the  criterion  of  the  lex  loci  delicti 

commissi, we must also remember the double actionability rule which is still in force 

in some of the common law States. In these cases, a person may only be sued for 

events  that  occurred  in  a  foreign  country  when  the  author  of  the  harm  may  be 

regarded as liable both under the law of the place where the tortuous act occurred 

and in accordance with the lex fori. 

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4.5.7  Summary table 

We  now  present  in  the  next  page  a  summary  table  made  with  the  aim  of  giving  a 

simplified  global  view  of  the  subject  matter.  However,  as  a  simplification  effort,  the 

reader  should  take  into  account  the  particularities  explained  in  all  this  section  above 

about the situation at each Member State. 

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Table: Summarised conflict of law rules at the 27 EU Member States 

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4.6  ANALYSIS  OF  THE  RESULTS  OBTAINED  FROM  THE 

SURVEYS CARRIED OUT BY THE STUDY 

As  part  of  this  study  surveys  were  carried  out  with  legal  operators  in  the  27 

Member  States.  The  results  obtained  serve  as  a  gauge  of  the  currently  accepted 

situation  on  civil  non-contractual  obligations  for  violations  of  privacy  and  other 

personality rights.  

Two  types  of  survey  were  carried  out;  the  first  was  intended  to  obtain 

approximate data of a quantitative nature on cases relating to the subject matter of 

the  study.  The  second  of  qualitative  nature,  on  the  problems  posed  by  existing 

legislation and the opinion that legal operators hold on the possibility of harmonising 

this  material  through  techniques  pertaining  to  private  international  law  within  the 

European Community, 

In the following pages we shall try to set out and assess the results obtained, 

starting  with  the  quantitative  questionnaire,  then  going  on  to  the  qualitative 

questionnaire.  At  Annex  II,  the  reader  can  find  the  full,  non-modified  nor 

commented answers. 

4.6.1  The quantitative questionnaire  

To the question "How many civil court cases of violations of privacy or rights relating 

to  personality,  in  a  cross-border  context,  involving  mass  media,  have  you  been 

involved in during the last five years?", 76% of respondents stated "none". Of those 

who  experienced  a  case  of  this type,  the  majority  experienced  only 1  to  4  cases. 

This data indicates that this type of dispute is in fact not very numerous. 

None 

From 1 to 4 

From 5 to 10 

Over 10 

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 In the instances of violations of privacy and other personality rights experienced by 

respondents, the number of cases where the disputes were resolved by the courts 

or out-of-court were similar. 

Finally,  concerning  the  impact  of  the  Internet  and  the  new  technologies  on 

increasing the number of cases of this type, the majority of those surveyed - 66% - 

believe that they have influenced the increase. However, it was also found that only 

32%  of  these  believed  that  a  large  increase  was  caused,  while  33%  were  of  the 

opinion that there was only a small increase.  

Yes, a great deal  

Yes, slightly 

No 

4.6.2  The qualitative questionnaire  

The qualitative questionnaire was sent out to a variety of professional groups. 

Most of those surveyed, 44%, were practising lawyers. The opinion of others such 

as judges, members of national government and persons in other professions such 

as  university  professors  was  also  sought.  Alongside  these  groups,  the  specialist 

nature  of  the  subject  matter  of  the  study  required  that  information  should  be 

gathered  from  other  parties  directly  affected  by  it;  the  survey  was  therefore  also 

sent  out,  and  received  replies  from,  press  associations  -who  played  a  major  and 

very active role in the whole process of finalising the production of the EC Rome II 

Regulation  and  in  the  ultimate  exclusion  of  the  subject  from  its  scope  -  and  data 

protection agencies. The breadth of types of people surveyed makes it possible to 

derive a complete overview of the situation, reflecting the various existing feelings 

on the subject under consideration.  

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Starting  from  the  fact  of  the  exclusion  of  violations  of  privacy  and  other 

personality  rights  from  the  scope  of  Rome  II,  the  first  general  question  put 

concerned  the  opinion  on  this  option  that  was  narrowly  adopted  as  community 

legislation.  The  question  put  to  respondents  referred  to  whether  they  believed  it  " 

necessary  to  unify  the  conflict-of-law  rules  at  a  European  level,  to  harmonise  protection 

levels  in  cases  of  alleged  violations  of  privacy  or  rights  relating  to  personality,  in  a  cross-

border  context,  performed  by  mass  media",  and  required  a  commented  yes  or  no 

answer. The results were as follows:  

Yes, a single set of 
conflict-of-laws rules 
should be adopted - 
85.3% 

No, retain the current situation with 
27 sets of rules - 14.7% 

From  the  results  obtained  it  became  clear  that  the  great  majority  of 

respondents  were  of  the  opinion  that  it  would  be  better  to  adopt  a  single  set  of 

conflict-of-law rules instead of retaining the current situation with the 27 conflict-of-

law rules of the Member States. 

If  we  take  into  account  that  amongst  those  who  opposed  the  adoption  of  a 

single set of conflict-of-law rules are the press associations - who represent 9% of 

total respondents -, we may conclude that the great majority do not find the current 

situation satisfactory.  

The press associations displayed opposition to the inclusion of non-contractual 

civil obligations arising from violations of privacy and other personality rights in the 

Rome II Regulation, which means that the opposition to unification of conflict-of-law 

rules that they showed in the survey is to be expected. Bearing this out, one of the 

comments  received  from  the  survey  gave  reasons  for  rejecting  the  unification  of 

conflict-of-law rules stating that the, 

―European  Publishers  Council  remains  deeply  sceptical  as  to  the  desirability  of  EU 
intervention  in  this  area,  touching  as  it  does  so  closely  the  area  of  editorial  responsibility  and 
freedom, something which under the Treaties is outside the legal competence of the EU. During 
the negotiation of the Rome II Regulation we recalled that the only legal basis upon which the EU 
is competent to intervene is on internal market economic grounds. EU intervention in the area of 

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choice  of  law  in  defamation  and  privacy  cases  self-evidently  has  no  economic  single  market 
objective‖.  

Nevertheless, in the other professions surveyed, opinion was overwhelmingly in 

favour of unification. Therefore, it is possible to draw the general conclusion that the 

exclusion made from Rome II is not in tune with the wishes of the great majority of 

professionals, only with those of the press associations group. 

In cases of violations of privacy and other personality rights carried out by the 

media there tends to be conflict between two fundamental rights: the right to privacy 

and the right to freedom of communication and information. Recognising this is to 

be  the  case,  respondents  were  asked  the  following  question:  In  cases  of  alleged 

violations of privacy or rights relating to personality, in a cross-border context, performed by 

mass  media,  two  basic  rights  conflict:  the  right  to  privacy  and  the  right  to  freedom  of  the 

press.  Which  of  these  should  prevail  in  an  EU  common  juridical  system?  The  responses 

received were as follows:  

The right to privacy 
31.7% 

The right to freedom of the press 
13.4% 

Both, equally 
54.9% 

The majority opinion is that both rights should have the same importance in the 

construction  of  a  common  legal  area  in  the  European  Union.  Therefore,  any 

potential  community  rule  on  the  subject  should  not  favour  personal  privacy  rights 

over media freedom of communication. Both rights are of equal importance and any 

potential rule should ensure that they are in balance.  

This statement, as has been seen, is also reflected in the free comments made 

by the respondents, that the conflict-of-law rules for non-contractual obligations for 

violations of privacy and other personality rights should not be presented as conflict-

of-law  rules  directed  at  protecting  the  party  injured  by  media  actions.  Therefore, 

from the comments made by the respondents it may be concluded that only a few 

are  in  favour  of  the  favor  laesi  principle  in  this  context,  thereby  agreeing  with  the 

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majority  doctrine.  The  party  whose  privacy  rights  have  been  infringed  should  not 

consider  himself  as  the  weaker  of  the  parties,  and  neither  should  privacy  rights 

prevail over the right to freedom of information.  

As a result, any set of conflict-of-law rules should be neutral in nature, which 

may  be  expected  to  have  an  effect  on  the  choice  of  points  of  connection.  The 

point(s)  of  connection  chosen  should  not  favour  the  position  of  either  party;  they 

should determine the most appropriate connection in accordance with the principles 

of closeness and predictability.  

Nevertheless, from the results obtained it is also possible to conclude that if a 

weaker  party  exists,  the  weaker  party  would  be  the  party  that  had  its  privacy 

infringed, and in no case would it be the media that had distributed the defamatory 

article. This is demonstrated by the opinion of 31% of respondents who considered 

that in the construction of the EU legal area the right to privacy was more important, 

against  13%  who  considered  the  right  of  freedom  of  information  to  be  more 

important.  Indeed  more  than  one  comment  made  by  respondents  reflected  the 

opinion  that  conflict-of-laws  rules  should  be  for the protection  of  the  injured  party, 

giving them the right to opt for, amongst other things, the law that is most beneficial 

to their interests. 

Recognising  that  in  outline  principle  any  conflict-of-law  rules  should  be 

formulated taking into account that the right to privacy and the right to freedom of 

information  should  have  the  same  emphasis,  respondents  were  presented  with  a 

series of possible points of connection, for them to decide which would be the most 

appropriate  in  any  future  set  of  conflict-of-law  rules.  The  question  asked  was  as 

follows: ―In cases of alleged violations of privacy or rights relating to personality, in a cross-

border context, performed by mass media (especially the press), in your opinion, what should 

the general connection criteria be to determine the applicable law?" The results obtained 

were as follows: 

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The place of residence of the plaintiff 

The place of distribution producing the direct injury 

The place of residence of the publisher or the place 
of publication (direct injury) at the plaintiff's option 

The place of residence of the publisher responsible 
for publishing the damaging content 

The place in which the most significant element(s) 
of the injury arose 

The Member State of the court that has knowledge 
of the controversy (lex fori) 

Others 

From  the  responses  obtained  it  is  not  possible  to  conclude  that  any  one 

connection  criterion  would  be  clearly  preferable  to  any  other.  Although  the  "  The 

place  of  residence  of  the  plaintiff‖  was  the  most  widely  favoured  with  26%  of  the 

responses received, there were another three connection criteria receiving around 

20% of the opinions given: the place of distribution directly producing the injury ―The 

place  where  the  damaging  content  is  disseminated,  understanding  this  to  be  the 

place where the direct damage is caused‖, ―the place of residence of the publisher 

or the place of distribution (direct injury) at the plaintiff's option‖ and the ―The place 

of residence of the publisher responsible for publishing the damaging content".  

We  have  previously  concluded  that  the  point  of  connection  should  result  in 

formulating  neutral  conflict-of-laws  rules  that  should  not  have  the  purpose  of 

protecting the injured party's privacy rights. Nevertheless, in spite of the fact that the 

final election of a point of connection may be based on reasons of predictability and 

closeness,  in  this  context  it  is  of  course  traditionally  considered  that  points  of 

connection  based  on  the  criteria  of  the  publisher's  place  of  residence  favour  the 

party  responsible  for  publishing  the  defamatory  material,  while  those  points  of 

connection based on the criterion of the habitual residence of the victim or the place 

where  the  direct  injury  takes  place,  amongst  others,  favour  the  victim  of  the 

defamatory action. 

If we divide the points of connection that we put forward in the survey between 

those that are based on the criteria of the application of the law of the country where 

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the editor is established and those that refer to the locus damni criteria we can see 

that most of them allow the injured party to apply the law of the locus damni country. 

Except  for  the  criteria  of  the  "place  of  residence  of  the  medium  responsible  for 

distributing  the  article  giving  rise  to  the  injury"  and  of  ―lex  fori‖,  all  the  remaining 

points  of  connection  allow  the  injured  party  to  apply  the  law  of  the  locus  damni. 

Therefore,  although  we  previously stated  that  from  the  responses  obtained  it  was 

not  possible  to  conclude  that  one  specific  point  of  connection  prevailed  over  the 

others, it is now possible to maintain that the solution certainly appears to involve 

the  adoption  of  a  criterion  based  on  the  locus  damni,  since  77%  of  respondents 

favoured  a  criterion  that  allows  the  injured  party  to  apply  the  law  of  the  country 

where the injury is manifested. 

The "place of residence of the injured party" point of connection was the one 

that  received  the  most  support  (at  26%)  83.  Certainly,  that  of  the  injured  party's 

habitual residence, as has been demonstrated in previous sections of this study, is 

not  one  of  the  points  of  connection  generally  used  in  the  national  legislations  of 

member  States.  Only  the  conflict-of-law  rules  of  the  legal  systems  of  Bulgaria, 

Romania and Lithuania provide for an option for the law of habitual residence of the 

injured party. The law of habitual residence of the injured party usually appears as 

an additional option amongst a number of laws, and its application depends on the 

wishes of the injured party. It should particularly be noted that these three conflict-

of-law rules are specific to the subject of violations of personality rights. This data 

shows  that  although  quantitatively  few  legal  systems  contain  this  point  of 

connection, those that do are qualitatively very notable.  

In  the  remaining  member states,  the  fact  that  in  the majority  of  national legal 

systems  general  conflict-of-law  rules  pertaining  to  non-contractual  obligations  are 

applied, these being based on the lex loci delicti commissi rule, means that the point 

of connection based on the habitual residence of the injured party is not expressly 

provided for. Nevertheless, it should be noted that, in instances of infringements of 

personality  rights  by  the  media,  the  place  in  which  the  injury  arises  (one  of  the 

aspects of lex loci delicti commissi) often results in the application of the law of the 

country of the victim's domicile or residence.  

83 Those in favour of the habitual residence criteria were M. Amores Conradi and E. Torralba Mendiola: ―Difamación y 

―Roma II‖ [Defamation and Rome II], loc. cit., pp. 255-256. 

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Of course, there is a significant body of thinking that considers that the law of 

the habitual place of residence of the injured party is the most appropriate one for 

determining non-contractual obligations arising out of violations of privacy and other 

personality  rights.  To  this effect,  one  of  the  comments  received  demonstrates  the 

suitability of this point of connection, pointing out that at the conflict-of-laws level, it 

is  the  one  that  best  expresses  the  balance  between  the  fundamental  rights  of 

privacy and of freedom of expression. According to this point of view,  

―as  a  general  rule,  the  place  of  habitual  residence  is  the  centre  of  social,  personal  and 
economic relationships that are liable to be affected by a violation of privacy or other personality 
rights;  it  is  a  predictable  connection  both  for  the  injured  party  (who  will  rely  on  the  protection 
provided by their country of habitual residence) as well as for the party responsible for the injury, 
which  will  usually  know  the  personal  circumstances  of  the  injured  party,  including  their  place  of 
habitual residence. It also makes it possible to apply a single law in those instances frequent in 
practice in which the injury is caused in a number of countries. The application of this law means 
that  the  party  responsible  for  cross-border  injury  has  to  adhere  only  to  the  limits  on  freedom  of 
expression provided for by the legal system of the place of habitual residence of the injured party". 

Nevertheless, and in spite of being the option favoured by most respondents it 

does not meet with general acceptance and, of course, produces an unquestionable 

rejection amongst media representatives.  

Indeed, media industry representatives generally show themselves in favour of 

the  point  of  connection  of  the  "place  of  residence  of  the  publisher of  the  medium 

responsible  for  distributing  the  item  giving  rise  to  the  injury".  It  is  the  one  that 

provides  the  greatest  security  to  the  media,  since  to  avoid  non-contractual 

obligations arising from its information activity, it only has to act in accordance with 

the law of the place of residence of the publisher. It is also the one that produces 

the  least  information  cost  for  the  media,  since  they  do  not  need  to  analyse  and 

assess  the  content  of  other  domestic  legal  systems,  such  as  that  of  the  place  of 

habitual  residence  of  the  injured  party  or  that  of  any  other  country  in  which  its 

information activity may give rise to injury. Nevertheless, this option does not have 

sufficient support as a potential general rule (18.7% of respondents) even although 

it  is  the  one  that  receives  the  most  support  from  the  media  industry  (9%  of 

respondents).  Amongst  the  grounds  given  by  some  respondents  in  favour  of  this 

point of connection, we would highlight that it was pointed out that the person who 

distributes the article giving rise to the injury should be able to determine applicable 

law  with  certainty;  in  this  connection  it  has  been  said  that  it  is  not  reasonable  to 

expect that the publisher should know the differences existing in the legal systems 

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of the various Member States. In reality, behind this comment lies the debate about 

who  should  have  the  obligation  of paying  the  costs  that  the  internationalisation  of 

information activity entails. In this comment it is considered that this price should not 

be paid by the publisher; from this we conclude that it is up to the injured party to 

bear the costs that this internationalisation entails. Of course,  this statement does 

not seem logical. Since it is the publisher in itself that decides to extend their activity 

to countries different from that of their residence, it should be the publisher (and not 

the injured party who has nothing to do with this decision) that should bear the cost 

of dealing with the problems posed by internationalisation.  

As was stated in one of the comments received, the disadvantage produced by 

this  point  of  connection  is  that  on  many  occasions  the  legal  system  of  the 

publisher's residence is not likely to have any actual or substantive connection with 

the dispute, particularly when the defamation has been published on the Internet. In 

addition  to  this  fact,  the  comments  have  highlighted  the  requirement  that  the 

publisher  should  not  be  able  to  hide  behind  the  fact  that  the  law  of  its  place  of 

establishment  may  be  more  permissive;  according  to  this  comment,  if  the  injured 

party suffers injury in  the place  of  distribution  it  makes  sense  that  they  should be 

able to claim there. One thing that is certain is that if the point of connection of the 

publisher's  habitual  residence  is  adopted  as  the  sole  point  of  connection  in  this 

matter, and if it is combined with the freedom of establishment of companies within 

the EU, it could give rise to a sort of election for domicile in the country that is most 

favourable  to  media  interests,  on  the  basis  of  domestic  regimes  for  liability  for 

violations of privacy and other personality rights. 

The options put forward in the survey aimed at different legal operators were 

nowhere  near  the  total  number  of  possible  options.  As  a  result,  the  comments 

received from respondents suggested further options, some of them of interest.  

In this connection there was a comment that ―the most reasonable link would 

be  the  place  in  which  the  facts  that  were  the  subject  of  the  information  arose". 

Furthermore  this  link  would  frequently  coincide  with  the  residence  of  the  injured 

party, although not always. In the opinion of another respondent the law applicable 

should be "the law of the place of residence of the victim if distribution took place 

there,  as  the  place  of  principal injury".  A  third  person suggested  as  an  alternative 

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"the residence of the injured party, unless there was more significant contact with 

the place in which the most significant element(s) of loss or damage occurred".  

Taking into account that many of the conflict-of-law rules in member states that 

include the general rule of lex loci delicti commissi make provision for the exception 

of  the  habitual  residence  of  the  party  causing  the  injury  and  of  the  injured  party 

being the same, it might be considered appropriate to ask if this exception should 

also  be  included  in  any  potential  unified  conflict-of-law  rules.  Along  these  lines  it 

was suggested that the law of the shared country of habitual residence of both the 

party responsible for the publication and the victim should prevail over the general 

criterion. Opinions on this came out as divided.  

Yes        
48.8% 

No          

51.2% 

The first fact to take into account in interpreting the responses obtained is that 

within the 48.8% of positive responses we should include those that took a position 

in favour of points of connection based either only on the habitual residence of the 

injured  party  or  only  on  the  residence  of  the  publisher  responsible  for  the  injury. 

(Nevertheless,  this  last  statement  too  must  be  qualified  since,  in  these  cases,  the 

exception based on both parties having the same habitual residence could still be 

valid if one of the parties involved has more than one habitual residence in different 

member states. In this case, one of the respondents commented that "the habitual 

residence  of  the  victim  should  be  of  application  only  in  the  absence  of  both  the 

responsible  party  and  the  victim  having  the  same  habitual  residence).  Therefore, 

taking  into account that  these  make up 45%  of  respondents,  in  reality only 3% of 

respondents took a position in favour of this general exception, against the 51.2% 

that opposed it.  

Among the advantages that were mentioned in the comments, reference was 

made to the fact that this provision guarantees predictability to the party responsible 

and  the  interests  of  the  victim.  It  was  also  said  that  this  provision  gave  greater 

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certainty and predictability for both parties; it also usually coincides  with the place 

with the closest links to the incident.  

Against  this  provision,  it  has  been  said,  from  the  point  of  view  of  defending 

conflict-of-law  rules  favouring  the  victim,  that  both  parties  having  the  same 

residence simplifies but does not provide the necessary protection. 

In  any  case,  the  general  opposing  position  does  not  seem  to  deal  with  any 

great criticism in respect of the link of the common place of residence. That is, it is 

considered that the suitability of this criterion depends on the facts of each case, it 

being considered most appropriate to refer in this circumstance to the more general 

exception of the closest links. That is, that of the habitual residence of both parties, 

as  a  general  rule,  if  a  special  connection  of  the  incident  with  the  law  of  the  said 

country  is  found.  Nevertheless,  there  is  no  reason  that  this  should  happen  in  all 

cases. For instance, it might be more appropriate to consider this circumstance on a 

case-by-case  basis  and  include  it  within  a  general  exception  of  the  closest  links, 

and not as an independent exception. 

In  connection  with  the  above,  the  following  question  was  put:  To  make  the 

conflict-of-law  rules  more  flexible,  and  if  it  responds  better  to  both  parties’  expectations, 

along  with  the  above  possibilities,  should  the  court  that  is  knowledgeable  on  the  issue  be 

given the option to apply any other law, if that law is more connected to the issue? 

Yes                    
59.4% 

No  
40.6% 

The 60% of favourable responses against 40% disagreeing (in which we must 

logically 

include 

that  of 

the  media 

industry  managers)  shows  clearly 

the 

appropriateness  of 

including  an  exception  of 

this 

type.  Nevertheless, 

the 

appropriateness of including an escape clause based on the criteria of the closest 

links is not a view shared by all, or not shared without reserve.  

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In several of the comments received it was stated that this exception would be 

acceptable  only  if  it  favoured  the  injured  party.  To  this  effect,  it  was  said  that  the 

solution  of  an  escape  clause  of  this  type  made  sense  in  the  case  of  neutral 

connections, but not in a subject such as this one when privacy must be assured in 

a particular manner; such a clause would give rise to lack of harmony in resolutions 

and  open  up  escape  routes  for  countries  with  restrictive  protection  that  adhere  to 

the  double  actionability  rule.  As  a  result,  according  to  these  opinions,  the  escape 

clause  will  be  appropriate  always  so  long  as  it  offers  an  additional  option  of 

applicable  law  to  the  injured  party,  but  not  if  it  leaves  the  court  with  the  job  of 

evaluating and applying such an exception. 

Amongst those who consider inclusion of an escape clause as appropriate, a 

number of grounds to justify their position were considered. In comments received it 

was said that this clause could be suitable to take into account factors such as the 

volume of sales and audience; this could be a way of achieving justice in individual 

cases, always provided there were sufficient grounds for the application of this other 

law; according to other opinions the escape clause should permit the application of 

the  most  closely  connected  law  and  should  also  be  of  application  when  it  is  not 

possible to determine the place of residence of the injured party with precision; in 

this  connection,  comments  were  made  that  it  could  happen  that  the  election  of 

habitual  residence  could  be  based  on  tax  grounds  or  that,  when  dealing  with  an 

internationally  well-known  person,  it  could  be  difficult  to  determine  the  effective 

centre of their social relationships.   

Amongst  comments  received,  both  for  and  against  this  option,  the  following 

concerns  were  observed:  the  greater  flexibility  that  this  exception  clause  would 

provide  would  inevitably  bring  with  it  greater  "legal  uncertainty  and  chaos",  and 

could  also  "introduce  a  certain  degree  of  arbitrariness".  In  this  respect,  a  few 

respondents  indicated  that  the  exception  clause  might  provide  the  court  with 

objective  criteria  for  determining  when  links  were  closest,  thereby  avoiding  the 

courts having to apply lex fori.  

As  has  become  obvious  in  practice,  in  violations  of  privacy  and  other 

personality rights by the media, that  it is very usual for the harm to be caused in a 

number of countries, since this can be caused in all countries where the publication 

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was distributed. This fact it becomes even clearer if the publications include those 

made  in  electronic  format  over  the  Internet.  The  spread  of  injury  over  various 

countries complicates the task of determining the law applicable to these violations 

of  privacy  and  other  personality  rights.  For  this  reason  the  survey  included  a 

question which took these facts into account.  

We  asked:  in  these  cases,  which  law  should  the  judge  apply  to  resolve  the 

case? The responses to the questions were as follows:  

The law of the publisher‘s country of residence, if it is the 
origin of the fact causing the damage. 

The law of every country in which the damage is caused or 
the news published, in a distributed way. 

The law of the publisher‘s country of residence, if it is the 
origin of the fact causing the damage. 

The law of the country where the most significant facts occur 
concerning the damage or loss. 

The law most connected to the case and foreseen by the 
parties. 

Others 

The first fact to be extracted from the results obtained was that, while the option 

for the separate application of the law of each country in which the publication was 

distributed or injury resulted received the support of 20% of the respondents, it was 

not  the  preferred  solution.  Indeed,  as  a  general  rule,  it  was  considered  more 

appropriate to apply a single law for all injury that may have arisen, independently of 

the place in which it manifested itself. 

This  appears  somewhat  surprising  -  although  as  we  shall  see  below  the 

relevance  of  this  data  has  to  be  put  in  context  -  that  the  majority  of  respondents 

(24%) have taken a position in favour of the application of the law of the place of 

residence  of  the  publisher  of  the  medium  responsible  for  distributing  the  article 

giving rise to the injury.  

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Moreover,  this  option  is  preferable  independently  of  whether  the  country  of 

residence of the publisher is or is not considered as a place of origin of the action 

causing the injury (this last option received the support of 19% of respondents). It 

was  preferred  even  over  the  law  of  the  country  in  which  the  most  significant 

elements of injury or loss occurred which, as the case may be, may also involve the 

application  of  a  single  legal  system  to  all  injury  caused,  thereby  avoiding 

proliferation of applicable law by the competent judicial body.  

This result can be put in context in that this was not at all consistent with the 

option  considered  by  the  majority  as  a  general  rule  in  favour  of  the  law  of  the 

habitual  residence  of  the  injured  party  -  although  of  course  this  option  was  not 

included in the question. As a result, application of the law of the habitual residence 

of the victim also leads to the application of a single law when injury is incurred in 

more  than  one  country.  Several  comments  received  were  expressed  along  these 

lines, stating that the law applicable should be that of the habitual residence of the 

victim. 

Several of the comments received considered that in this case it should be up 

to the party injured by the publication causing the harm to opt between the different 

legal systems of the counties in which the injury occurred. To a certain extent this 

involves  introducing  the  criterion  of  favor  laesi  in  opting  for  applicable  law. 

Moreover,  more  than  one  respondent  mentioned  the  problem  that  this  question 

creates  for  publications  distributed  on  the  Internet.  Currently,  this  is  an  issue  that 

very much needs to be taken into account when giving an appropriate response to 

the question posed.  

Taking into account the application in various EU member states   of the double 

actionability rule and, therefore, the importance that lex fori bears in certain judicial 

systems,  two  related  questions  were  put  to  evaluate  the  role  that  the  law  of  the 

place  where  the  case  is  pending  would  play  in  this  type  of  dispute.  Firstly  the 

following question was asked: If, according to the chosen criteria, in the law finally chosen 

to be applicable, the protection of the freedom of the press is less than the protection that the 

law of the country of the knowledgeable court would give, do you think the latter law should 

be selected? The responses were as follows:  

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Yes                    
16.6% 

No      
31.3% 

Only if the chosen law goes 
against the public international 
order of that State. 
52.1% 

Connected  with  the  previous  question,  but  showing the  other side  of  the  coin, we 

asked: If, according to the chosen criteria, in the law finally chosen to be applicable, the protection 

of the privacy rights is less than the protection that the law of the country of the knowledgeable court 

would give; do you think the latter law should be selected? 

Yes                    
16.7% 

No      
29.0% 

Only if the chosen law goes 
against the public international 
order of that State. 
54.3% 

As may be observed, the responses received to both questions were very similar. 

The  main  conclusion  to  be  drawn  from  these  two  questions  is that  lex  fori  should 

only come into play when the substantive law indicated by the conflict-of-laws rules 

is contrary to the international public law of the forum. From the responses received 

may also be derived the idea that the double actionability rule that is still in force in 

some  states  does  not  receive  sufficient  backing  to  be  retained  in  the  community 

area.  

As has been demonstrated in the free comments received, the fundamental nature 

of the conflicting rights does not justify systematic application of lex fori every time 

that  the  protection  of  freedom  of  the  press  or  protection  of  personality  rights  in 

applicable  law  is less  than that provided  for in the  law of  the  court  that  hears  the 

case. The exclusion of applicable law is only justified when this produces a result 

manifestly contrary to the criteria used by the constitutional case law and that of the 

European  Court  of  Human  Rights  at  the  time  of  assessing  and  establishing  the 

relationships and reciprocal limits of the fundamentals of both laws.  

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The scenario in which traditionally questions relating to non-contractual obligations 

for  violations  of  privacy  or  other  personality  rights  arose  (written  press  media  or 

short range radiotelephone broadcasts) has changed markedly with the appearance 

and establishment of new media and technologies, by which it is possible to violate 

privacy  rights  in  a  global  space.  In  particular,  the  Internet  has  involved  a  radical 

change  in  the  traditional  communication  formulas,  which  makes  it  necessary  to 

reconsider the appropriateness of the solutions that have been used up to now. As 

a result, because of its specialist nature, the survey asked whether specific conflict-

of-laws rules should be set down for defamatory articles and information distributed 

over the Internet.  

Yes                    
62.3% 

No      
37.7% 

The majority of respondents considered it appropriate to set out conflict-of-law 

rules specific to injury caused over the Internet. Nevertheless, some well reasoned 

opinions consider a specific set of conflict-of-law rules to be unnecessary for these 

cases.  Indeed,  as  was  highlighted,  if the  point of  connection  to  the  country of  the 

victim's habitual residence is considered to be appropriate, conflict-of-law rules do 

not present any problems in instances of defamation transmitted over the Internet. 

Other  problems  may  arise;  such  as  identifying  the  person  responsible  for 

defamatory  publication  or  information,  taking  account  of  and  defining  specific 

concepts such as the server, identifying and defining the residence of the publisher 

or the place of transmission, etc.  

It  may  be  observed  that,  depending  on  which  criterion  is  used  under general 

law, injury incurred through the Internet may or may not require specific conflict-of-

law rules. It would be worthwhile to have the benefit of a single set of conflict-of-law 

rules for use in all cases, such as that of the residence of the injured party. 

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A  specific  aspect  which  emerges  in  the  context  of  violations  of  privacy  and 

other personality rights by the media is a reference to the right of reply, objection 

and  rectification.  The  specifics  of this aspect  were  the  motivation  for the following 

question: Should the law of the country where the media organisation or the  publisher has 

his usual residence be the law applicable concerning the right to answer, object and rectify? 

Yes                    
56.8% 

No     
43.2% 

Respondents' opinions were divided on this point, although most answered yes. 

As has been seen in some of the comments received on this question it is possible 

to maintain that the law of the country in which the broadcasting body or the press 

publisher  have  their  habitual  residence  would  be  more  advisable  for  practical 

reasons, or that it represents the most reasonable solution. Indeed it was stated that 

a claim for rectification could be considered as a special case differentiated from the 

rest,  and  that  the  law  applicable  for  that  purpose  should  allow  for  a  speedy 

response.  

Nevertheless, many objections were also raised to the solution. It was said that 

in practical terms it was unduly complex and expensive to expect the victim to have 

to apply to other states. Concerns were also raised because such a solution would 

again give the publisher the upper hand. In the opinion of another respondent, the 

law applicable should be that of the place of distribution and not that of the place of 

residence of the publisher or the broadcasting body. Another group of respondents 

agreed in stating that the law applicable should be the one according to which the 

non-contractual obligations was established, preferring a single law applicable to all 

issues arising from violations of personality rights, and though some also qualified 

this  saying  that  the  judge  in  charge  of  adopting  this  measure  should  take  into 

consideration the law of the country in which the measure would in fact be carried 

through.  

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EC Regulation 44/2001 (Brussels I) establishes in article 5, section 3, a specific 

competence in cases of tort and negligence of the "court of the place in which... the 

injury  occurred‖.  From  case  law  it  may  be  concluded  that  when  the  place  of  the 

action  giving  rise  to  liability  and  that  where  this  act  causes  damage  are  not  the 

same, (frequently the case in violations of privacy by the press) the defendant may 

be called, at the plaintiff's option, before the court of the place of the act that gave 

rise to the damage, or to the place where the direct damage occurred.  

The  ECJ's  method  for  interpreting  lex  loci  delicti  rule  in  accordance  with  the 

ubiquity rule has led to posing the question of whether it would be desirable that this 

criterion  should  match  that  of  applicable  law.  The  responses  received  were  as 

follows: 

Yes                    
69.6% 

No   
30.4% 

The  great  majority  of  respondents  considered  desirable  that  the  criteria  for 

international judicial competence should match those of applicable law. It was said 

in favour of the two agreeing that this would be beneficial for the injured party, which 

clearly  reflects  the  position  of  those  who  defend  the  favor  laesi  principle  in  this 

matter. Moreover, it was said that insofar as possible there should be consistency 

between international judicial competence and the issue of applicable law.  

Halfway  between  those  for  and  those  against,  it  was  said  that  even  if 

agreement  between  the  criteria  in  the  two  matters  were  desirable  it  is  not 

indispensable, and that it is not necessary that forum and law should coincide. 

Nevertheless,  in  the  comments  received  were  found  many  opinions  giving 

reasons for opposing this approach. From the perspective of the media industry the 

Brussels  I  Regulation  concerning  article  5.3  and  the  case  law  established  by  the 

Fiona Shevill case threatens freedom of the press, exposing publishers to multiple 

actions  in  accordance  with  any  system  of  law  worldwide.  In  the  opinion  of  other 

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respondents  the  transposition  of  this  decision  into  the  scope  of  applicable  law  is 

unacceptable. In this context, they stated that it is one thing to offer an alternative 

forum  to  that  of  the  domicile  of  the  defendant  in  the  course  of  the  proper 

administration  of  justice  and  quite  another  to  make  applicable  law  depend  on  an 

election made with the resulting multiple application of different local legal systems. 

As  a  result  the  interests  that  govern  the  field  of  international  competence  and 

applicable law are diverse and do not necessarily need to be in agreement. There 

are  even  those  who  consider  that  what  needs  to  be  changed  is  the  competence 

criterion, which is muddled and inadequate. 

In certain specific matters relating to the subject of non-contractual obligations, 

the  European  Union  has  made  use  of  techniques  and  legislative  instruments 

different  from  those  of  the  conflict-of-law  rules  unified  by  means  of  Community 

Regulation.  This  is  the  case  with  Directive  95/46/EC,  relating  to  the  protection  of 

individuals in terms of personal data processing and the free circulation of this data. 

Similarly, with the aim of smoothing out obstacles to free circulation of data without 

diminishing  the  protection  of  personal  data  and  the  right  to  privacy  Directive 

95/46/EC on  data protection  was  formulated.  This required  each  member state  to 

guarantee  its  effective  application  within  its  legal  system.  By  operation  of  art.  4 

Directive  95/46/EC,  states  must  apply  the  laws  that  they  have  approved  by 

transposition  when  a data controller  establishes  itself on  their  territory. This  being 

so, the Directive, in addition to providing for substantive harmonisation of national 

law on subjects covered by its scope, clearly makes use of the country of the origin 

criterion in the article 4 rule for extension or self-limitation.  

Taking  into  account,  therefore,  that  the  regulatory  activity  of  the  European 

Union can make use of legal instruments such as the Directive, where substantive 

harmonisation can lead to justification of the use of the country in which the editor is 

established  criterion  as  a  key  element  for  the  application  of  community  law,  the 

survey 

included 

the  following  question:  Do  you  think  that  using  this 

instrument  would  be  enough  to  harmonise  the  level  of  protection  in 

cases  of  alleged  violations  of  privacy  or  rights  relating  to  personality 

performed by mass media in a cross-border context? 

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Yes                    
47.1% 

No          

52.9% 

Opinions  here  come  out  as  very  much  divided.  Some  of  the  respondents 

acknowledge that they do not know a great deal on this subject, for which reason 

they decline to give a positive response.  

The  alternative  of  a  Directive  that  deals  with  a  substantive  harmonisation  of 

minima  and  self-limited  rules  based  on  the  criterion  of  the  country  in  which  the 

editor  is  established,  was  found  a  good  alternative  by  some  respondents.  On  the 

subject, it was said that "in the current state of European construction in this matter 

it is possibly the answer". In another of the comments received mention was made 

of  what  in  our  opinion  is  one  of  the  main  advantages  which  this  solution  could 

provide; it was emphasised that,  

"harmonisation  of  the  level  of  protection  in  cases  of  cross-border  violations  of  personality 
rights by means of a community directive would allow the application of the law of the country of 
origin  (residence  of  the  person  responsible  for  the  publication  or  broadcast)  and  would  thereby 
facilitate free circulation without impairment of privacy rights, always of course, provided that the 
person responsible is established in an EU member state  ‖. 

The  potential  for  applying  the  law  of  the  country  in  which  the  editor  is 

established,  therefore,  is  one  of  the  main  advantages  that  this  initiative  could 

provide, as  it  can be used for the  purpose  of  mollifying  the  attitude  of  information 

industry  representatives  to  European  regulatory  initiatives  on  the  subject.  Other 

respondents  indicated  that  the  Directive  was  a  good  technical  instrument,  and  a 

perfect  tool to  achieve  harmonisation.  Nevertheless,  those  in  favour of  this option 

also demonstrated concern on the problems that it could pose, especially difficulties 

deriving  from  the  nature  of  the  Directive.  Thus,  they  said  that  since  it  is  a  good 

technical instrument  it  would  be  desirable  that  the  member states  delayed  less  in 

transposing directives into internal law; this means that the appropriateness of the 

proposed way forward might depend on the effectiveness of application of internal 

transposition.  

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Nevertheless,  it  is  certain  that  over  50%  declared  themselves  against  an 

alternative similar to Directive EC/95/46 on the protection of privacy rights and other 

personality related rights against injury produced by the media. We may therefore 

conclude that, in principle, the option of unification of conflict-of-law rules is found to 

be preferable to harmonisation operating through a Directive with extension or self-

limitation  rules.  What  is  certain  is  that,  depending  on  the  reach  or  scope  of 

application of the Directive, its success can vary significantly. It may also be pointed 

out  that,  in  principle,  unification  of  the  conflict-of-law  rules  and  harmonisation 

through  the  directive  are  not  exclusive  initiatives,  but  rather  complementary.  The 

function  of  conflict-of-law  rules  will  continue  to  be  fundamental  to  everything  not 

governed by any potential EC directive. 

At the end of the questionnaire several sets of conflict-of-law rules were set out 

to  sound  out  the  respondents'  views  of  them.  The  selection  of  the  conflict-of-law 

rules  took  into account  the  various  formulas  used during  the  Rome  II negotiation. 

The  respondents  had  to  give  the  answer  "very  appropriate",  "appropriate", 

"acceptable" or "not appropriate ".  

The first set of conflict-of-law rules presented for the respondents to consider 

was that based on the general criterion of lex loci delicti commissi. It in some way 

resembled the option adopted in the draft Rome II Regulation which referred back, 

in  this  specific  matter,  to  the  Regulation's  general  rule,  unless  this  should  involve 

the application of a law conflicting with the fundamental principles of the forum on 

the subject of freedom of expression and information. As a result, the conflict-of-law 

rules suggested were as follows:  

―1. The law applicable to non-contractual obligations arising out of violations of privacy and Rights 
relating  to  personality  is  the  law  from  the  country  in  which  the  damage  occurs  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 occur. 
2.  However,  where  the  person  claimed  to  be  liable  and  the  person  sustaining  damage  both  have 
their  habitual  residence  in  the  same  country  at  the  time  when  the  damage  occurs,  the  law  of  that 
country shall apply. 
3.  Where  it  is  clear  from  all  the  circumstances  of  the  case  that  the  tort/delict  is  manifestly  more 
closely connected with a country other than that indicated in paragraphs 1 or 2, the law of that other 
country shall apply. A manifestly closer connection with a particular country may be deemed to exist 
having  regard  to  factors  such  as  the  country  to  which  a  publication  or  broadcast  is  principally 
directed or the language of the publication or broadcast or sales or audience size in a given country 
as a proportion of total sales or audience size or a combination of these factors‖ 

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Total responses received were as follows:  

Very appropriate  

Appropriate  

Acceptable 

Not appropriate 

Only  11.4%  of  respondents  considered  these  conflict-of-law  rules  to  be  very 

appropriate.  On  the  contrary,  48%  of  respondents  considered  them  to  be  not 

appropriate.  

It  should  be  pointed  out  that  100%  of  press  associations  considered  these 

rules-of-conflict to be not appropriate. This response is completely logical bearing in 

mind  the  position  taken  by  these  associations  throughout  the  negotiation  of  the 

Regulation,  opposing  any  conflict-of-laws  rules  based  on  the  criterion  of  locus 

damni, as is the case, since this would be the law of the country in which the injury 

occurred.  

However, the response received from other professionals to the same question 

brings out very interesting results. If we focus on all received feedback, except the 

one from these associations, we can see the fact that only 18.1% considered them 

not  appropriate  and,  moreover,  almost  82%  consider  these  rules  to  be 

acceptable, appropriate or very appropriate, against 18% who consider them to 

be not appropriate, as one can see in the following graph. 

Very appropriate  

Appropriate  

Acceptable 

Not appropriate 

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Amongst the criticisms made in the comments on the proposed rules it should be 

pointed  out  that,  those  who  view  them  favourably  are  concerned  that  the  rules 

should not give a specific answer in instances where injury occurs in many different 

localities,  a  circumstance  which  is  of  course  usual  in  injuries  to  personality  rights 

caused by the media, since that could bring the court responsible for judging on all 

injuries to the application of the fragmentation theory, that is, the application of as 

many laws as there are places in which the injury had an effect. 

The second set of conflict-of-laws rules follows the pattern put forward by the 

secretary of the Committee on Legal Affairs of the European Parliament, D. Wallis, 

who  suggested  adopting  a  solution  intermediate  between  that  put  forward  by  the 

Commission  and  the  position  of  press  agencies,  such  as  to  be  acceptable  to  all 

parties 

―1.  As  regards  the  law  applicable  to  a  non-contractual  obligation  arising  out  of  a  violation  of 
privacy  or  rights  relating  to  the  personality,  the  law  of  the  country  in  which  the  most  significant 
element or elements of the loss or damage occur or are likely to occur shall be applicable.  

2.  Where  it  is  clear  from  all  the  circumstances  of  the  case  that  the  tort/delict  has  manifestly 
closer connection with a country different from the one of paragraph 1, the law of this other country 
shall apply. A manifestly closer connection with a particular country may be deemed to exist having 
regard to factors such as the country to which a publication or broadcast is principally directed or the 
language of the publication or broadcast or sales or audience size in a given country as a proportion 
of total sales or audience size or a combination of these factors‖. 

The first rule of this article includes a novel expression to refer to the place in 

which  the  injury  occurs:  the  place  in  which  the  most  significant  element(s)  of  the 

loss or damage occur. This set of rules frequently refers to the law of the country 

where the injured party has his habitual residence, since this will be the place where 

the  injured  party  will  suffer  the  greatest  injury  to  his  privacy  or  personality  rights. 

Moreover, it has the advantage of avoiding the multi-jurisdictional application of the 

laws of the place in which the injury occurred (the fragmentation theory), applying a 

single law to all injuries, that of the place in which the most significant elements of 

loss or damage occur. 

Nevertheless,  there  would  be  an  exception  to  this  general  rule:  that  of  the 

closest links. To assess when a defamatory publication has closer links with other 

countries,  various  factors  will  need  to  be  taken  into  consideration.  The  principal 

factors to be taken into consideration will be the country to which a publication or 

broadcast is principally directed or the language of the publication or broadcast or 

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sales or audience size in a given country as a proportion of total sales or audience 

size  or a  combination of  these  factors. Behind  this exception  may  be  discerned a 

wish  to  meet  the  expectations  of  publishers,  in  such  a  way  that  they  are  able  to 

predict which law will be applicable. In line with this, the factors set out demonstrate 

that  the  application  of  such  laws  can  be  completely  predictable  for  the  publisher. 

This  rule,  nevertheless,  given  its  flexibility  risks  converting  itself  into  the  general 

rule, and that of the most significant elements of damage into the special rule. 

In  the  responses  received to  the  surveys  we  observe  that  this option  attracts 

less support than the first.  

Very appropriate  

Appropriate  

Acceptable 

Not appropriate 

Press associations 

Other 
 professions 

Acceptable 

Not appropriate 

Very appropriate  

Appropriate  

Acceptable 

Not appropriate 

Therefore,  only  5.4%  of  respondents  consider  this  set  of  rules  to  be  very 

appropriate and 16.2% appropriate. Over half of the respondents consider this to be 

a not appropriate rule. Concerning this rule, the position of press associations also 

stands out, with over 90% of their respondents believing that it is an unsatisfactory 

rule. 

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Amongst  the  criticisms  levelled  against  this  option,  there  may  be  highlighted 

those that refer to its excessive flexibility or open nature, which would act against 

the  certainty  of  justice.  It  is  said  that  it  does  not  make  it  possible  to  ascertain  in 

advance  the  law  applicable  for  both  parties,  which  leaves  a  high  degree  of 

uncertainty  and  poses  difficulties  in  defining  which  elements  of  the  damage  are 

significant. 

The third set of conflict-of-laws rules which were put forward as a modification 

of the above intended to overcome the reservations that it met with from the media 

industry.  In  large  part  it  corresponded  to  the  text  of  the  article  presented  by  the 

European Parliament which ultimately was not accepted by the Council. 

 ―1.  As  regards  the  law  applicable  to  a  non-contractual  obligation  arising  out  of  a  violation  of 
privacy  or  rights  relating  to  the  personality,  the  law  of  the  country  in  which  the  most  significant 
element or elements of the loss or damage occur or are likely to occur shall be applicable.  

2.  Where  the  violation  is  caused  by  the  publication  of  printed  matter  or  by  a  broadcast,  the 
country in which the most significant element or elements of the damage occur or are likely to occur 
shall  be  deemed  to  be  the  country  to  which  the  publication  or  broadcasting  service  is  principally 
directed  or,  if  this  is  not  apparent,  the  country  in  which  editorial  control  is  exercised,  and  that 
country's law shall be applicable. The country to which the publication or broadcast is directed shall 
be determined in particular by the language of the publication or broadcast or by sales or audience 
size in a given country as a proportion of total sales or audience size or by a combination of those 
factors.  This  provision  shall  apply  mutatis  mutandis  to  publications  via  the  Internet  and  other 
electronic networks.‖ 

In this way, although the general provision of the applicable law being that of 

the country in which the most significant element(s) of damage occur is maintained, 

the  second  paragraph  of  the  rules  establishes  the  criteria  for  determining  the 

country  in  which  the  most  significant  elements  of  damage  occur.  Thus  it  is 

understood  that  the  most  significant  elements  of  damage  occur  in  the  country  to 

which  the  publication  or  broadcast  is  principally  directed.  Or  if  this  point  is  not 

apparent,  it  will  be  the  country  in  which  editorial  control  is  exercised.  This  last 

interpretation is no doubt a nod to the media industry, anticipating the application of 

the country in which editorial control is exercised.  

The respondents' opinions are summarised in the following graph:  

Appropriate  

Acceptable 

Not appropriate 

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We  may  observe  that  this  formula  too  failed  to  win  the  approval  of  the 

respondents.  Only  30%  of  them  considered  it  to  be  satisfactory.  This  intention  to 

placate the media lobby is to a certain extent reflected in the opinions of the press 

associations consulted: 

Appropriate  

Acceptable 

Not appropriate 

Although  over  61%  of  respondents  consider  these  conflict-of-law  rules  to  be 

unsatisfactory, it should be noted that, in contrast to the reaction to prior conflict-of-

law rules, in this case 23% of press associations surveyed viewed them positively. 

Nevertheless,  it  is  a  set  of  rules  that  is  still  far  from  achieving  consensus  in  this 

matter.  

The  comments  received  object,  amongst  other  aspects,  that  this  is  a  set  of 

rules with a long and complicated second paragraph, that generates uncertainty and 

that is unnecessarily slanted in favour of the publisher-broadcaster. 

Finally,  a  final set  of  conflict-of-laws  rules  based  on  the  application of  lex fori 

was put forward.  

 ―The law applicable to non-contractual obligations arising out of violations of privacy or rights 
relating to personality is the law  of the country of the court that has knowledge of the  conflict (lex 
fori).” 

This  was  the  least  well-regarded  of  all  of  them.  We  should  emphasise  that 

almost  90%  of  all  respondents  considered  it  as  unsatisfactory,  and  100%  of  all 

press associations surveyed.  

Very appropriate  

Acceptable 

Not appropriate 

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This  was  considered  to  be  too  simple. But  most  of all  it  was  pointed out that 

such conflict-of-law rules in combination with the Brussels I Regulation rules in force 

would  not  be  desirable  because  it  would  give  rise  to  forum  shopping.  Therefore, 

while it might not modify current international judicial competence rules, application 

of lex fori would not be satisfactory. 

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4.7  FINAL  CONSIDERATIONS  AND  PROPOSALS  FOR  THE 

FUTURE  

When a study is carried out of the current regulatory regime in the European 

Union, which governs civil non-contractual obligations in the context of privacy and 

other personality-related rights, which is divided among as many systems of law as 

there  are  member  states,  and  when  the  results  of  the  surveys  carried  out  in  this 

study are analysed, it is possible to derive certain general conclusions and suggest 

potential ways  forward  that  community  legislation  can  follow in  the  future  with the 

purpose of overcoming the current situation of stalemate and legislative vacuum in 

this sector.  

Future actions put forward as appearing the most possible having regard to the 

current  legislative  situation,  being  the  result  of  a  progression  of  events  which 

necessarily have to be taken into consideration to sketch out these future actions.  

In the first place, before starting to formulate the actual alternatives that exist, we 

consider  it  appropriate  to  start  from  an  initial  assessment.  At  this  moment,  it  is 

hardly  practical  to  put  forward  as  a  priority,  single  action  the  preparation  of  a 

European law on civil non-contractual obligations that includes damage caused to 

privacy and other personality related rights.  

Creation  of  a  uniform  community  law,  a  European  obligations  law,  by  way  of 

unification of substantive legal systems has been and is an objective that has been 

proposed,  analysed  and  assessed  both  in  doctrine  and  in  European  legal 

establishments.  In  spite  of  the  fact  that  this  could  offer  notable  advantages  in 

furthering the mitigation of the difficulties arising from there being as many laws as 

there are member states, this is currently not a viable objective at least in the short 

or medium term.    

The first option that may be put forward given the scenario that we are faced 

with is to keep the system as it stands at present. That is, to give up any intention of 

harmonisation and/or unification of the rules both substantive and relating to conflict 

of laws that govern civil non-contractual obligations for damage to privacy or other 

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personality  rights  in  the  27  member  states,  so  that  each  country's  legal  system 

continues to adopt its own rules of substantive law and private international law.  

This solution does not seem satisfactory. The enormous differences that exist 

in this field in the legal systems of individual member states have a negative impact 

on the construction of a community market and on a "European legal area in civil 

matters"  (art.  61  c)  Treaty  of  the  European  Community  (EU  Treaty)  which 

guarantees  its  proper  working.  The  proper  working  of  the  internal  market  will 

depend on the ultimate consolidation of the principle of mutual recognition which, in 

its  turn,  depends  on  the  ability  of  the  legal  systems  of  the  states  to  guarantee  a 

minimum  standard  of  protection  for fundamental  rights  in  community  territory and, 

amongst them, with new technologies and the media in steep growth, rights related 

to personality.  

However, and although this ―continuity‖ solution would not seem appropriate, it 

is also true that the negative impact of maintaining the current situation is relative. 

On  one  hand,  quantitatively  speaking,  as  this  Study  presents,  there  are  very  few 

such cases at the case law of EU Member States. And on the other hand, according 

to current regulation, and partly also to the European Court of Justice case law on 

the Fiona Shevill case, Member States can often end up applying their own law, the 

one that corresponds to lex loci delicti commissi. 

In  the  interests  of  reducing  the  complexity  generated  by  the  disparity  in 

legislation  in  civil  non-contractual  obligation  matters  in  this  field,  European 

institutions  must  back  the  reinforcement  of  the  harmonisation  progress  that  has 

been  initiated.  Legislative  harmonisation  in  matters  of  non-contractual  obligations 

for injuries against personality rights comes as a response to the level of uncertainty 

arising  from  the  differences  existing  in  the  judicial  systems  of  the  member  states 

and to the increase in costs, whether procedural or for information and adaption of 

the  different  legal  systems,  that  this  may  incur  for  the  participants  in  the  internal 

market.  

Therefore, starting from the premise that we must continue with the process of 

harmonisation  commenced  in  the  field  of  civil  non-contractual  obligations  and 

advance in this direction into the field of violations against personality rights, what 

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we  now  have  to  ask  ourselves  is  what  methods  should  be  used.  Setting  aside  a 

complete unification of substantive rules, the question is whether harmonisation of 

conflict-of-laws  is  a  workable  method;  and  not  just  workable,  but  satisfactory. 

Finding the answer to this question has specifically been the main aim of this study.  

Indeed,  harmonisation  of  the  conflict-of-law  rules  of  the  27  member  states  in 

the context of resolution cross-border dispute would bring greater legal certainty in 

the European judicial area since it would define the law applicable to the obligation 

independently of which ever court may be competent. The fact that the parties do 

not have to know the 27 conflict-of-law rules of the 27 member states but that they 

could have access to a single regime of community private international law would 

have the direct consequence of reducing litigation costs and would provide greater 

predictability as to the solution for all parties to litigation. In this way, harmonisation 

of  conflict-of-law  rules  would  contribute  to  guaranteeing  equality  of  treatment 

between participants engaged in cross-border litigation in the European market. 

The  initial  Rome  II  Regulation  draft  in  2003  clearly  backed  harmonisation  of 

conflict-of-law rules in this field. Its article 6 included the subject of non-contractual 

obligations  for  violation  of  privacy  and  other  personality  rights  and,  in  particular, 

liability  arising  from  defamation  by  the  mass  media.  Nevertheless  this  article  was 

subsequently excluded from the modified 2006 draft.  

Probably  one  of  the  reasons  justifying  this  exclusion  derives  from  the  major 

disparities existing in the substantive and conflict-of-law regulations in force in the 

member states. But the Commission certainly removed violations by the press and 

similar  bodies  from  its  scope  because  of  the  difficulty  in  reconciling  the  positions 

adopted  by  the  persons  directly  affected  by  the  matter  and  the  irreconcilable 

differences  in  the  texts  put  forward  by  the  Council  and  the  Parliament.  Pressure 

from  the  press  championing  the  head  office  of  the  publisher  as  the  point  of 

connection paralysed the process and brought it to a halt. 

At this point we should consider if it would be possible to develop neutral rules 

of conflict that might succeed in balancing the interests of the alleged author of the 

damage  and  the  injured  party,  which  might  thereby  serve  to  achieve  the  desired 

consensus.  

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In fact, the need not to completely abandon the road to unification of conflict-of-

law rules in this field, in spite of the failure reflected in Rome II, is very apparent as 

has been demonstrated by the survey carried out on selected legal operators. The 

validity of the path of unification of conflict rules has remained very apparent in the 

opinion of 85% of the persons consulted in this survey, who showed themselves in 

favour of this unification. The unification of conflict-of-law rules at community level 

would  provide  greater  legal  certainty,  in  place  of  the  current  situation  in  which  27 

national conflict-of-laws rules operate together on the same subject.  

Therefore,  the  unification  of  conflict-of-laws  legislation  at  the  community  level 

could  be  used  as  an  alternative  route  to  substantive  harmonisation/unification. 

Nevertheless, for a potential unified conflict-of-law to be developed satisfactorily its 

workings must ensure that a sufficient level of protection exists for the participants 

in a cross-border situation and that the judicial-political conditions of the market in 

which they operate effectively places them in a position that ensures that they will 

receive  equal  treatment.  Only  if  it  can  be  guaranteed  that  neither  party  to  the 

process  can  avoid  these  minimum  protection  standards  in  its  actions  can  a 

unification of conflict-of-law rules be produced which do not have to be designed to 

achieve them.  

If  we  accept  the  diversity  in  laws  of  the  27  member  states  in  the  field  of 

obligations arising from infringements of personality rights and, therefore, we reject 

the  idea  of  reaching  complete  substantive  uniformity,  we  must  face  the  problems 

linked with this diversity. However, the diversity of substantive legal systems should 

not be seen as something negative. Diversity favours the possibility that each state 

may  adopt  the  regulatory  solutions  that  are  the  most  suited  to  its  special 

circumstances  and  permits  the  operator  to  choose  the  law  best  suited  to  the 

necessities of its case.  

Nevertheless, for this premise to be sustainable and the problem not to arise 

from diversity it is necessary to ensure a balance and equality between the parties, 

their  full  knowledge  of  the  rules  of  working  of  the  market  and  a  high  level  of 

predictability of costs and benefits of the action or case that they are going to bring. 

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Uniformity  within  diversity.  In  this  case  unification  of  conflict-of-law  rules  will  be  a 

valid tool for harmonisation.  

This  could  be  based  on  the  law  of  country  in  which  the  editor is established. 

The  problems  of  application  of  the  law  of  the  country  in  which  the  editor  is 

established  arise  when  the  situation  of  the  participants  is  not  the  one  that  we 

assume and where one of the two parties is in a weaker position in relation to the 

other,  or  when  from  the  circumstances  of  the  case  is  emerges  that  one  of  the 

parties  does  not  have  the  same  guarantees,  as  happens  in  non-contractual 

obligations. In this case the party in the favourable position can succeed in choosing 

applicable  law  considering  only  its  own  interests  for  the  purpose  of  taking 

advantage  of  the  weakness  or  inequality  that  the  other  party  finds  itself  in  and 

private  international law designed to  follow the  criteria  of  the  country in  which  the 

editor is established, fails. 

Thus, in the case of non-contractual obligations, if the operator can choose the 

law  applicable  to  potential  non-contractual  damage  caused  by  its  actions,  it  will 

choose  the  one  that  is  most  favourable,  even  before  the  damage  has  occurred. 

Which means that the impacted party is faced with conditions that were set down 

before it even became a party to them. In these cases, when establishing unification 

of conflict-of-law rules, so as to achieve a minimum balance and ensure the proper 

working of the market, the law of the country of locus damni should be opted for. As 

has been seen in the surveys carried out by this study, the points of connection that 

received the greatest support from the respondents were those which allowed the 

injured party to have access to a law based on the principle of country of damage.  

The  logic  of  the  law  of  the  country  of  damage  presupposes  a  difference 

between  the  parties  and  re-establishes  a  balance  by  choosing  the  law  that  most 

favours the weaker party, and thereby ensures that the other party must comply at 

least with the minimum requirements of the law most closely linked to the impacted 

party.  The  unequal  position  in  which  the  parties  find  themselves  requires  that  the 

cost  of  the  international  nature  of  the  case  falls  on  the  party  that  is  in  the  most 

favourable position.  

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This  is  exactly  the  option  that  was  chosen  by  the  Rome  II  Regulation  in 

establishing  the  conflict-of-laws  rules  to  indicate  the  law  applicable.  In  general,  in 

article 4 it establishes as the applicable law the law of the place in which the direct 

injury occurs or might occur. And in the context of infringements against personality 

rights  or  defamation  caused  by  the  media  the  first  draft  of  the  Regulation  also 

favoured this option by including them in its article 6. Article 6 of the First Draft of 

the  Regulation  refers  us  back  to  the  general  rule  of  article  3  (current  art.  4  RII). 

Projected to the subject that we are dealing with, the law applicable will be that of 

the  place  in  which  the  damage  occurs,  which  in  cases  of  infringements  of 

personality  rights  or  defamation  is  the  place  where  the  injured  person  suffers  the 

injury to their privacy or private life; or where the effects of this infringement have 

their  most  severe  effect.  This  will  usually  be  the  same  as  the  victim's  place  of 

residence.  This  does  not  exclude 

the  possibility 

that 

this  option  will  be 

complemented  by  an  exception  clause  applicable  to  those  cases  in  which  a  law 

exists that has closer links with the case in question.  

Amongst  the  advantages  of  the  locus  damni  it  may  be  highlighted  that  this 

usually coincides with the victim's residence, constituting a close link for the victim, 

and  being  predictable  for  the  person  alleged  to  be  responsible.  By  means  of  the 

establishment  of  this  connection,  the  injured  party  will  be  protected  by  the  legal 

system of their place of residence, which will usually be the legal system the closest 

links to them. In turn, it is usual for the victim of any defamation committed by the 

press to be known to the author of the damage, who can easily know where their 

residence  is  and  therefore  which  law  will  be  applicable  in  the  event  of  dispute, 

ensuring predictability.  

The criticisms of this point of connection from the press associations have been 

overwhelming.  On  one  hand,  they  cite  the  difficulty  in  knowing  the  victim's 

residence; while this may not be very probable, neither is it an argument that could 

not  be  refuted  by  invoking  an  exception  clause  incorporated  into  the  Regulation. 

And  also,  they  allege  that  it  might  happen  that  although  the  product  might  be 

compliant with the laws in force in the country of the publisher's establishment and 

no copy of it may have been distributed in the country of residence of the victim, it 

may  end  up  with  the  law  of  the  victim's  place  of  residence  being  applied.  This 

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argument should not detain us because if no injury occurs in the victim's place of 

residence it does not matter whether this or that system of laws should apply. 

If on the other hand we opt for the law of the place of domicile or establishment 

of the producer of the publication, as has been recommended, one of the parties is 

significantly favoured. Also there is no sense in working on so specific a line as an 

exception from general rules and deriving the opposite from it. Indeed, the Rome II 

Regulation  tries  to  balance  the  position  of  a  market  on  a  theme  full  of  "negative 

externalities" that pose difficulties for its proper working, for which reason it has to 

give greater prominence to the law of the habitual residence of the party injured by 

a defamatory action. 

If we follow the criteria of the country in which the editor is established, as the 

press  and  media  want,  the  costs  of  the  international  aspect  of  the  case  will  be 

suffered by the victim of the action carried out by third parties, an action in which 

they have no negotiating capacity and which they can know nothing about, nor can 

they  foresee  it  since  the  person  initiating  the  action  is  fully  in  command  of  the 

action,  and  the  inequity  of  the  arrangement  is  unquestionable.  The  victim  cannot 

foresee the result because he does  not know from where or from whom the injury 

will come. And what is more, faced with this advantageous situation, the author can 

choose the country of establishment that best suits it and in which the regulations 

applicable to its activity will be the most favourable possible to it without the victim 

having any say or decision-making power.  

Given  the  difficulty  of  reaching  a  consensus  as  to  of  which  route  should  be 

followed  for  the  unification  of  conflict-of-laws  rules  on  the  subject  (as  became 

blatantly  obvious  in  the  negotiation  and  development  phase  of  the  Rome  II 

Regulation)  and  of  breaking  the  stalemate  existing  on  this  aspect,  another 

possibility is to try to put an end to the problems inherent in the existing substantive 

diversity  by  means  of  harmonisation  through  the  establishment  of  a  few  common 

minimum principles.  

Community  legislation  could  prevent  inequalities  or  defects  in  the  market  by 

establishing minima where such deficiencies are present. In the event that all legal 

systems  guaranteed  a  satisfactory  level  of  protection  to  the  victim  of  violations 

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against  personality  rights,  it  would  not  be  so  attractive  to  the  perpetrator 

opportunistically to seek the legal system most favourable to it, or most lenient on 

its  actions,  because  all  would  have  the  same  obligation  to  adhere  to  substantive 

minima laid down at community level.  

Unification of conflict rules should not be presented as an alternative option to 

substantive  harmonisation  of  the  legal  systems  of  member  states,  but  as  an 

additional  option.  Without  doubt  the  most  satisfactory  format  for  assuring  a 

minimum level of concordance between legal systems to prevent the proliferation of 

problems  connected  with  the  diversity  of  legislation  is  to  seek  the  appropriate 

combination  between  mechanisms  for harmonisation  of  conflict-of-law  rules  and  a 

certain amount of minimum substantive harmonisation that is found indispensable. 

Frequently, the success of measures intended to harmonise conflict-of-law rules at 

the European level will depend on bringing substantive legislation and the general 

principles  of  national  legal  systems  closer  together.  Thus  it  may  be  advisable  in 

non-contractual matters to coordinate the unification of the conflict-of-law rules route 

with initiatives on partial harmonisation.  

The work started by the Rome II Regulations and the difficulty in arriving at a 

consensus on conflict-of-law rules governing torts/delicts against personality rights, 

demonstrated to us that recourse to techniques for harmonisation of conflict-of-law 

rules  tending  towards  the  unification  of  private  international law  in  member states 

does not seem possible unless accompanied by initiatives for bringing substantive 

law closer together and the development of some common principles.  

Only harmonisation of the principles or substance of national law could justify 

use  of  the  criterion  of  country  in  which  the  editor  is  established,  in  place  of  the 

country  of  locus  damni  that  is  natural  to  conflict-of-law  rules  in  non-contractual 

matters.  

This statement could be considered a self-evident, because we could conclude 

that minimal substantive harmonisation already exists. This minimum harmonisation 

should  derive  partly  from  the  fundamental  nature  of  protected  rights  (right  of 

freedom of information, right to respect) and by virtue of that it may be assumed that 

the resolution of cases based on the facts will be consistent with the legal system of 

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the forum, whichever law may be applicable. Indeed, the European Court of Human 

Rights  boasts  a  wide  case  law  on  how  to  achieve  the  difficult  balance  between 

personality rights and the freedom of the media, but does a community protection 

standard on the subject actually exist?  

We have already seen that private international law serves us to deal with the 

multiplicity  of  substantive  laws,  indicating  one  of  them  as  being  responsible  for 

resolving  a  specific  dispute.  But  if  the  existing  differences  between  the  legal 

systems in play mean that opting for one of them as being applicable law will give 

completely  different  results,  we  run  the  risk  of  establishing  a  system  in  which 

interested  parties  will  use  the  conflict-of-law  rules  to  seek  residence  of  the  place 

with  the  law  which  is  most  favourable  to  them,  giving  rise  to  the  phenomenon  of 

forum  shopping  which  will  serve  to  increase  legal  uncertainty  and  the  inequalities 

between market participants.  

Nevertheless, in fields that are partially or minimally harmonised in which there 

exists  a  standard  shared  by  all  member  states, there are  many  fewer possibilities 

for  any  one  operator  to  act  in  an  opportunist  manner,  for  which  reason  they  will 

come to accept the criteria of the country in which the editor is established, even in 

the field of non-contractual obligations in respect of violations of personality rights 

and defamation carried out by the press and media for which the start point logic is 

to the contrary, as demanded by the press lobby.  

So, if we focus on the problem - not on the difficulty of finding a consensus at 

the time of opting for conflict-of-law rules to satisfy the interests of all protagonists, 

or in the preparation of what may be considered a neutral set of conflict-of-law rules, 

to  be  able  to  reach  a  balance  between  the  different  interests  present  -  of  the 

question of whether a common standard currently does or does not exist that would 

allow us to use the criterion of the country in which the editor is established upheld 

by the press lobbies that opposed in the first Draft of the Rome II Regulation, the 

answer is no.  

Even then, basing ourselves on the different levels of protection of personality 

rights  existing  in  national  substantive  legal  systems  and  in  the  material  and  case 

law  differences  that  surround  the  debate  between  the  right  to  privacy  and  the 

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freedom of  information  in  the  27  member states, and  on  the  fact  that  this is what 

distorts the workings of the market, the alternative that suggests itself is to prepare 

a Directive on the subject which would establish some common substantive minima 

on the subject. 

In  its  structure  it  would  include  an  extension  or  self-limitation  rule,  similar  to 

what was done in Directive 95/46/EC on the protection of personal data in article 4, 

which  included  the  criterion  of  the  country  in  which  the  editor  is  established. 

Harmonisation of substantive minima would be the determining element that would 

justify the adoption of the criterion of the country in which the editor is established. 

In  this  way,  preparation  of  a  Directive  -  always  taking  into  account  the  problems 

inherent  in  this  type  of  legal  instrument  -  to  incorporate  common  substantive 

minimum regulation and an extension or self-limitation rule founded on the criterion 

of the country in which the editor is established could be a viable alternative in the 

current  stalemate  situation,  a  meeting  point  for an agreement  on a  consensus  for 

the different positions that exist on the subject, and demonstrated in the positions 

held by the Commission, Parliament and the information industry lobbies.  

The  work  required  for  preparation  of  a  Directive  on  a  subject  as  sensitive  as 

this  is  unquestionable.  Although  the  possibility  of  adopting  the  criterion  of  the 

country  in  which  the  editor  is  established  in  the  extension  or  self-limitation  law  of 

this  potential  Directive  has  been  suggested,  this  option  is  only  justified  by  prior 

harmonisation of substantive laws on this subject. This harmonisation of substantive 

minima  should  take  as  a  reference  the  parameters  of  justice  represented  in  the 

Charter of fundamental rights of the European Union – which in the not too distant 

future could come to form part of community law - and the European Convention on 

Human  Rights  and  Fundamental  Liberties  prepared  within  the  Council  of  Europe 

and the case law of the European Court of Human Rights.  

Therefore, faced with the difficulty and the existing  stalemate on the potential 

for  adopting  a  single  conflict-of-laws  rule  at  the  European  level  on  the  subject  of 

non-contractual obligations for violations of privacy and other personality rights, the 

task  of  the  European  institutions  should  be  to  aim  to  achieve  an  accord  on  the 

minimum  substantive  threshold  on  media  rights  and  personality  rights,  in  such  a 

way that it will be possible to adopt an instrument whose application can be based 

on the criterion of the country in which the editor is established.  

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An  incentive  for  the  adoption  of  a  Directive  on  the  subject  is  to  be  found  in 

similar  examples  in  other  Directives  adopted  previously  on  matters  pertaining  to 

non-contractual obligations. It is sufficient to remember Directive  95/46/EC relating 

to the protection of individuals in respect of processing of personal data and the free 

circulation  of  that  data  (added  to  by  Directives  96/9/EC  on  legal  protection  for 

databases and Directive 2002/58/EC relating to the processing of personal data and 

the  protection  of  privacy  in  the  electronic  communications  sector),  Directive 

85/374/EEC,  of  28  July  1985,  relating  to  the  convergence  of  legal  regulatory  and 

administrative  provisions  of  member  states  on  the  subject  of  liability  for  damage 

caused  by  defective  products,  Directive  2004/35/EC  on  environmental  liability  in 

relation to the prevention and remediation of environmental damage or a number of 

Directives on consumer protection. 

Nevertheless, this solution would probably find the obstacle that some Member 

States  would  not  accept  an  EU  harmonizing  intervention,  as  per  the  limited 

competences of the EU in this area. 

From all of this may be concluded that the initiative on adopting a Directive on 

the  subject  we  are  dealing  with  could  be  a  first  step  in  the  harmonisation  or 

unification  of  national  law  at  community  level.  Moreover,  this  initiative  is  not 

presented as an alternative exclusive of others, as the adoption of a single set of 

conflict-of-law rules on the subject might well be, but instead it is complementary. In 

fact, a Directive that provides for a threshold of minima on the subject could serve 

the  objective  of  reconciling  positions  in  the  future,  facilitating  the  second  stage 

adopting conflict-of-law rules acceptable to all parties involved, this time, based on 

the criteria of locus damni.  

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out of violations of privacy and rights relating to personality. 
JLS/2007/C4/028. Final Report 

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out of violations of privacy and rights relating to personality. 
JLS/2007/C4/028. Final Report 

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165 

 
 
Comparative study on the situation in the 27 Member States as 
regards the law applicable to non-contractual obligations arising 
out of violations of privacy and rights relating to personality. 
JLS/2007/C4/028. Final Report 

  WARREN, L. D. BRANDEIS S. D., ―The right to privacy‖. Harvard Law Review. (1890). Vol. IV, 
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166 

 
 
 
Comparative study on the situation in the 27 
Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex I. 

COMPARATIVE STUDY ON THE 
SITUATION IN THE 27 MEMBER STATES 
AS REGARDS THE LAW APPLICABLE TO 
NON-CONTRACTUAL OBLIGATIONS 
ARISING OUT OF VIOLATIONS OF 
PRIVACY AND RIGHTS RELATING TO 
PERSONALITY 

ANNEX I – Survey Questionnaires 

Customer: 

European Commission 

Directorate General Justice and Home Affairs 

Directorate C: Civil Justice, Rights and Citizenship 

Date: 

January 2009 

Our Reference: 

Privacy Study. Survey Questionnaires. 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Comparative study on the situation in the 27 
Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex I. 

Contents 

1. INTRODUCTION ..........................................................................................................................................3 
2. QUANTITATIVE SURVEY.............................................................................................................................4 
3. QUALITATIVE SURVEY ...............................................................................................................................5 

 
 
  
 
 
Comparative study on the situation in the 27 
Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex I. 

1. INTRODUCTION 

We  here  present  the  questionnaires  used  at  the  Survey.  The  draft  version  was  consulted  with 
several stakeholders, including Media and Press Associations and the European Data Protection 
Authority. The final Word version was approved by the Commission prior to its translation and on-
line programming. 

All  Survey  questionnaires  were  available  in  6  European  Languages  (English,  German,  French, 
Spanish,  Greek  and 
Italian),  and  were  available  online  at  our  Survey  platform 
www.opinion.eu.com  from  September  2008  to  November  2008.  We  here  present  only  the 
English version of them. 

We created three questionnaires for our Survey: 

Quantitative  Survey:  http://www.opinion.eu.com/Privacy-Judges  (a  quantitative  short 

- 
survey, addressed to judges mainly) 

Qualitative  Survey:  http://www.opinion.eu.com/Privacy  (the  general  -qualitative-  survey 

- 
for most users) 

Qualitative  Extended  Questionnaire:  http://www.opinion.eu.com/Privacy_VIP  (the  same 
- 
as the Qualitative one, but also including a special long question and that was sent only to expert 
selected users). It appears on pages 8 and 9. 

 
 
 
 
 
 
 
 
 
 
 
Comparative study on the situation in the 27 
Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex I. 

2. QUANTITATIVE SURVEY 

 
 
 
 
Comparative study on the situation in the 27 
Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex I. 

3. QUALITATIVE SURVEY 

 
 
 
 
 
 
 
Comparative study on the situation in the 27 
Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex I. 

 
 
 
 
 
 
 
 
 
 
 
 
 
Comparative study on the situation in the 27 
Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex I. 

 
 
 
 
 
 
 
 
Comparative study on the situation in the 27 
Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex I. 

 
 
 
 
 
 
 
 
 
Comparative study on the situation in the 27 
Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex I. 

 
 
 
Comparative study on the situation in the 27 
Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex II 

COMPARATIVE STUDY ON THE 
SITUATION IN THE 27 MEMBER STATES 
AS REGARDS THE LAW APPLICABLE TO 
NON-CONTRACTUAL OBLIGATIONS 
ARISING OUT OF VIOLATIONS OF 
PRIVACY AND RIGHTS RELATING TO 
PERSONALITY 

ANNEX II – Survey Answers 

Customer: 

European Commission 

Directorate General Justice and Home Affairs 

Directorate C: Civil Justice, Rights and Citizenship 

Date: 

January 2009 

Our Reference: 

Privacy Study. Survey Answers. 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Comparative study on the situation in the 27 
Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex II 

Contents 

1. INTRODUCTION.......................................................................................................................................... 3 
2. QUANTITATIVE SURVEY ............................................................................................................................ 4 
3. QUALITATIVE SURVEY............................................................................................................................... 9 

 
 
  
 
 
Comparative study on the situation in the 27 
Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex II 

1. INTRODUCTION 

We here present the unaltered raw results of the Survey. Data and graphs are presented as pure statistics, 
without any interpretation or modification. Free text comments are provided in raw, non editted, format. 

We created three questionnaires for our Survey: 

Quantitative  Survey:  http://www.opinion.eu.com/Privacy-Judges  (a  quantitative  short  survey, 

- 
addressed to judges mainly) 

Qualitative  Survey:  http://www.opinion.eu.com/Privacy  (the  general  -qualitative-  survey  for  most 

- 
users) 

Qualitative  Extended  Questionnaire:  http://www.opinion.eu.com/Privacy_VIP  (the  same  as  the 

- 
Qualitative one, but also including a special long question and that was sent only to expert selected users) 

Results  on  these  two  last  questionnaires  are  provided  here  in  a  consolidated  basis,  since  one  is  just  the 
extension of the other. 

All  Survey  questionnaires  were  available  in  6  European  Languages  (English,  German,  French,  Spanish, 
Greek and Italian), and were available online at our Survey platform www.opinion.eu.com from September 
2008 to November 2008. 

 
 
 
 
 
 
 
Comparative study on the situation in the 27 
Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex II 

2. QUANTITATIVE SURVEY 

1. How many civil court cases of violations of privacy or rights relating to 
personality, in a cross-border context, involving mass media, have you been 
involved in during the last five years? 

None 

Fewer than 5 

From 5 to 10 

More than 10 

Goes to next 
question 

2. How many of these disputes have been solved in court? 

n= involved in 
any case 

None 

Fewer than 5 

From 5 to 10 

More than 10 

n= involved in 
any case 

 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Comparative study on the situation in the 27 
Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex II 

3. How many of these disputes have been settled out of court?

None 

Fewer than 5 

From 5 to 10 

More than 10 

4. Do you think that the number of these cases has increased with new technologies 
and the Internet?

Yes, a great deal 

Yes, slightly 

No 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Comparative study on the situation in the 27 
Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex II 

5. Please feel free to add any comment 

-As the answer of the first question is "none" number two and three can not be answerd 

-Aus  meiner  Sicht  stellt  weniger  die  fehlende  Vereinheitlichung  des  internationalen  Privatrechts  ein 
Problem  dar,  als  die  Frage  des  Gerichtsstands.  Ein  internationaler  Entscheidungseinklang  über  eine 
Vereinheitlichung  des  internationalen  Privatrechts  wird  nur  schwer  zu  erzielen  sein,  da  aufgrund  der 
besonderen  Grundrechtsrelevanz  (Persönlichkeitsrecht,  Meinungs-/Pressefreiheit)  es  zu  Friktionen  mit 
dem  Verfassungsrecht  kommen  kann  und  sich  dann  Probleme  des  ordre  public  stellen.  Schwierigkeiten 
macht  aus  meiner  Sicht  die  Zuständigkeitsnorm  des  Art.  5  Nr.  3  VO  44/2001  (Brüssel  I,  EuGVVO),  da 
hierdurch  auch  am  Erfolgsort  ein  Gerichtsstand  begründet  wird.  Angesichts  der  grenzüberschreitenden 
Verbreitung  nicht  nur  des  Internets,  sondern  auch  herkömmlicher  Medien  wie  Zeitungen,  Rundfunk  und 
Fernsehen, besteht hier eine erhebliche Gefahr des forum shopping. So machte z.B. ein österreichisches 
Unternehmen  Ansprüche  gegen  eine  schweizerische  Rundfunkanstalt  in  Deutschland  geltend,  da  der 
schweizerische  Rundfunk  auch  in  Deutschland  empfangbar  und  die  Internetseite  der  Anstalt  auch  in 
Deutschland abrufbar sei.  

-Aus  Sicht  der  Arbeitgerichtsbarkeit  gibt  es  kein  Bedürfnis  für  eine  Harmonisierung  der  verschiedenen 
nationalen Vorschriften. 

-Beim hiesigen Gericht waren Zivilverfahren des angesprochenen Rechtsgebiets noch nicht anhängig. 

-Current  conflict-of-law  rules  has  not  yet  caused  the  court  any  difficulties.  Neither  can  we  forecast  any 
problems, assuming a possible future harmonisation is given a similar construction. forwarded by Yvonne 
Häggström. Court clerk. De lagvalsregler som för närvarande gäller har hittills inte vallat tingsrätten nagra 
bekymmer. Givet att en eventuell harmonisering ges liknande konstruktion, kan vi inte heller förutse nagra 
problem pa omradet. enligt uppdrag. Yvonne Häggström Tingsnotarie 

-Die Antworten basieren auf den Angaben der hier tätigen vier Richtern in Zivilsachen 

-He  asesorado  en  multitud  de  casos  de  responsabilidad  civil  por  violación  del  derecho  fundamental  a  al 
protección  de  datos  pero  dichos  casos  no  han  sido  "transfronterizos"  .  La  mayoría  de  ellos  además  se 
refieren a cuestiones relacionadas con ficheros de solvencia patrimonial y crédito (baddebtors datafiles)  

-I  am  a  commercial  lawyer.  I  have  no  involvement  in  civil  court  cases  of  violations  of  privacy  or  rights 
relating to personality.  

-I am convinced that these cases should get the most wide publicity.  

-I am not a litigation lawyer  

-I find that privacy concerns or supposed concrns are being used to justify the imposition of lower standars 
of service on consumers. This is especially true in the UK. I have personal experience as do other lawyers 
of my acquaintance of telephone and internet service providers refusing to answer calls for assistance on a 
variety  of  frivolous  privacy  concerns  -  refusal  to  discuss  for  example  the  phone  connection  of  an  elderly 
parent and refusal to repair an internet connection when the accountholder was abroad on the grounds that 
it  would  be  a  violation  of  his  privacy  rights.  I  find  the  confusion  and  misrepresentation  of  the  law  which 
regulalry  confronts  citizens  very  regrettable.  The  law  seems  to  confer  on  me  nothing  but  inconvenience. 
Criminals do not refrain from crime because of it. Honest folk are burdened by it I feel very strongly that the 
law is unhelpful and damaging to the interests of ordinary citizens.   

-I have been consulted and have given advice to several clients (fewer than five) on these issues. But none 
of them were solved in court. In most cases out-of-court solution was achieved through mediation. In such 
cases alternative dispute resolution is sometimes more effective than litigation.  

-Ich antworte Ihnen für sieben Kollegen, von denen nur einer die obigen Fragen teilweise bejahen konnte. 
Die übrigen Kollegen hatten keinen Fall  

-Ich  bin  seit  Jahren  Mitglied  einer  großen  Strafkammer.  Nur  selten  bin  ich  als  Vertreter  in  Zivilkammern 
tätig. Deshalb habe ich in den letzten Jahren kaum Erfahrung in Zivilgerichtsfällen.  

-In meiner Praxis treten Fälle dieser Art (leider) nicht auf, daher kann ich keine repräsentativen Aussagen 
tätigen.  

 
 
 
 
Comparative study on the situation in the 27 
Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex II 

-In the mass media there is a RIGHT TO REPLY when a person is denigrated in press or TV. it should be 
not only a gentlemen procedure. Unfortunatelky, this is not functioning in Romania. I was denigrated in the 
press but my reply was not published or answered.   

-It  is  very  disappointing  that  with  the  substantial  increase  of  publication  online  that  the  EU  has  not  been 
able  to  harmonise  laws  pertaining  to  "media"  torts  -  the  present  confllict  of  laws  perpetuates  uncertainty 
about applicable law and only encourages forum shopping and is inimical to freedom of expression as well 
as freedom of trade amongst member States.  

-Je suis spécialisé en droit maritime secteur dans lequel on rencontre peu ce genre de problème. 

-keine 

-La  maggior  parte  della  pratica  di  private  enforcement  funziona  se  non  si  arriva  a  un  contenzioso 
giudiziario. Quando ciò accade è in genere per colpire inadempimenti o reati. Risposta sottoposta a nome 
di Cleary Gottlieb Steen & Hamilton LLP.  

-Los asuntos que tenemos no se han resuelto todavía ni judicial ni extrajudicialmente  

-My  main  concern  is  not  so  much  breaches  of  privacy  but  poor  and  inaccurate  reporting  by  press  and 
media of civil court cases .   

-No knowledge of that kind of cases in Estonia 

-Represento  los  intereses  de  personas  con  notoriedad  social  en  España  y  he  dirigido  casos  a  nivel 
nacional  derivados  de  intromisones  en  los  derechos  al  honor,  intimidad  personal/familiar  y  a  la  propia 
imagen.  Algunos  de  ellos  con  sentencias  muy  comentadas  en  el  ámbito  jurídico  por  los  conflictos  de 
competencias  originados  entre  los  Tribunales  Supremo  y  Constitucional.  En  asuntos  transfronterizos, 
solamente  he  dirigido  casos  de  intromisiones  ilegítimas  realizadas  a  través  de  Internet  de  muy  dificil  y 
complicada persecución dada la volatilidad y anonimato de las páginas WEB.  

-Rights to privacy and human rights are raised more frequently in all manner of cases 

-Since I have no personal experience of cases of the kind mentioned in the questionnaire I cannot answer 
questions no 2 and 3. My answer to question no 4 is based on an impresson I have based on information 
available to the public and within the legal profession. My practice is limited to maritime and transport law 
and related litigation.  

-Soy una abogada espanola en chipre , en este pais no saben lo que es una directiva asi que no creo que 
podamos  hablar  de  delitos  informaticos  ya  que  es  como  hablar  de  planeta  marte  .  aqui  un  ciudadano 
europeo tiene los mismos derecho que un africano asi que mi opinion es que pregunten sobre temas mas 
basicos gracias  

-Spesso non sei a conoscenza che la tua vita privata è stata violata. Se non te ne accorgi vuol dire che non 
hai  subito  danni  importanti.  Ma  quasi  tutti  abbiamo  subito  incursioni  nella  nostra  vita  privata.  Chi  invece 
subisce violazione dei diritti della personalità è molto meno fortunato e sicuramente qualche danno lo ha 
ricevuto.  

-There  is  no  need  for  harmonising  of  private  international  law  rules  and  no  practical  problems  are 
presented by the absence of harmonisation and creating an internal market in legal system choices is good 
in itself.  

-There is no option in your survey in my language  

-This is not my area of practice and therefore my answers are unlikely to be of assistance  

-This questionnaire was sent to the Brussels office of White & Case LLP. However, our privacy/data 
protection practice in Brussels has not encountered this type of work.  

-Trotz Grenznähe des Amtsgericht Laufen Problem noch nicht aufgetreten. 

-Unser Amtsgericht befindet sich im ländlichen Bereich, so dass Persönlichkeitsrechtsverletzungen durch 
Massenmedien, insbesondere im grenzüberschreitenden Kontext, eher selten vorkommen dürften. 

-Wegen fehlender Erfahrungen kann die Frage 4 nicht beantwortet werden. 

-Wir haben wirklich andere Probleme!  

 
 
Comparative study on the situation in the 27 
Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex II 

-Zu 4. sind mangels Erfahrungen keine Angaben möglich  

-Η Ελλάδα εχει πολύ αργή ανάπτυξη στα ηλεκτρινικά ΜΜΕ νέας γεννιάς, στο γρήγορ INTERNET και στην 
πρόσβαση του INTERNET στην κοινωνία. Συνεπώς δεν είναι ακόµα εύκολο να βγάλουµε συµπεράσµατα. 
Αντίθετα,  οι  προσβολές  προσωπικότητας  ή  της  φήµµης  επιχείρσης  µέσω  του    ΙΝΤΕΡΝΕΤ  αλλα΄από  τον 
Ελληνκό προς τον Ελληνικό χώρο είναι αυξηµένες και από προσωπική εµπιεράι βλέπω να καταλήγουν στα 
δικαστήρια. 

 
 
 
 
 
Comparative study on the situation in the 27 
Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex II 

3. QUALITATIVE SURVEY 

1. Do you think it is necessary to unify the conflict-of-law rules at a European level, 
to  harmonise  protection  levels  in  cases  of  alleged  violations  of  privacy  or  rights 
relating  to  personality,  in  a  cross-border  context,  performed  by  mass  media?

Yes, a single set of 
conflict-of-laws 
rules should be 
adopted - 85.3% 

No, retain the current 
situation with 27 sets of 
rules - 14.7% 

2.  In  cases  of  alleged  violations  of  privacy  or  rights  relating  to  personality,  in  a 
cross-border context, performed by mass media, two basic rights conflict: the right 
to privacy and the right to freedom of the press. Which of these should prevail in an 
EU common juridical system? 

The right to 
privacy 31.7% 

The right to freedom of the 
press 
13.4% 

Both, equally 
54.9% 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Comparative study on the situation in the 27 
Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex II 

3.  In  cases  of  alleged  violations  of  privacy  or  rights  relating  to  personality,  in  a 
cross-border  context,  performed  by  mass  media  (especially  the  press),  in  your 
opinion, what should the general connection criteria be to determine the applicable 
law 

The place of residence of the plaintiff 

The place of distribution producing the direct injury 

The place of residence of the publisher or the place of 
publication (direct injury) at the plaintiff's option 

The place of residence of the publisher responsible for 
publishing the damaging content 

The place in which the most significant element(s) of the injury 
arose 

The Member State of the court that has knowledge of the 
controversy (lex fori) 

Others 

Free text comments to Q3

- 

- A conflict rule would not harmonise the substative protection In theory the laws of all Council of Europe 
states  should  be  substantially  aligned  through  the  European  Human  Rights  Convention,  subject  to 
themargin of apprrecaition   

-Waren  oder  Dienstleistungen  zeigt.  Während  britisches  Recht  die  Veröffentlichung  von  umstrittenen 
Tatsachenbehauptungen  selbst  bei  Angelegenheiten  von  großer  öffentlicher  Bedeutung  weitgehend 
untersagt  (siehe  Beispiel  3),  ist  es  bei  der  Veröffentlichung  unstreitiger  Umstände  aus  dem  Privatleben 
liberaler  als  viele  kontinentaleuropäische  Presserechte.  Man  kann  etwa  annehmen,  dass  die  fragliche 
Veröffentlichung beispielsweise in Frankreich rechtswidrig wäre. 

Antwort zu Frage 1:Ja, es sollte ein einheitliches internationales Privatrecht geschaffen werden,wenn das 
maßgebliche  Recht  für  die  Papierpresse  entweder  das  Recht  des  Herkunftslands  oder  aber  wenigstens 
das  Recht  desjenigen  Staates  ist,  in  dem  die  bestimmungsgemäße  Hauptverbreitung  der  Publikation 
stattfindet 
Nein,  die  gegenwärtige  Situation  des  Kollisionsrechts  mit  27  nationalen  Rechtsordnungen  sollte 
beibehalten  werden,wenn  das  Recht  des  Aufenthaltes  des  Betroffen,  die  lex  fori,  der  Wohnsitz  des 
Betroffenen, alle Orte auch nur geringer Verbreitung oder andere Lösungen gewählt werden. 

Anmerkung zu Frage 1 und genauere Antwort: 
Die  Fälle  sind  schief  beschrieben.  Es  geht  in  den  streitigen  Fällen  immer  um  den  Konflikt  zwischen 
Pressefreiheit und Persönlichkeitsschutz und die Frage, nach welchem Wertungssystem im konkreten Fall 
der einen oder anderen Seite der Vorzug gegeben wird. 
Vor allem aber kann die Frage des Sinns und der Notwendigkeit einer solchen Harmonisierung nicht von 
dem Inhalt der harmonisierenden Norm getrennt werden. 
So wäre die Anwendung des Rechts des Aufenthaltes oder Wohnorts des Betroffenen völlig verfehlt. Die 
Rechtmäßigkeit eines Berichts in einer Zeitung in einem europäischen Land über iranische Politiker kann 
nicht  von  iranischem  Recht  abhängig  gemacht  werden.  Ebenso  wenig  kann  die  Rechtmäßigkeit  eines 
Berichts in einer rumänischen (deutschen) Zeitung über einen Europapolitiker mit Wohnsitz in Deutschland 
(Rumänien) von der Einhaltung deutschen (rumänischen) Rechts abhängig gemacht werden. 

Auch  die  Anwendbarkeit  des  Rechts  eines  jedweden  Verbreitungsortes,  also  auch  der  Orte  bloßer 
Randverbreitung  der  jeweiligen  Publikation  führt  zu  einem  für  die  Pressefreiheit  zerstörerischen  „Law 
Shopping“. Da die verschiedenen Rechtsordnungen (jeweils für sich durchaus mit guten Gründen) in den 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Comparative study on the situation in the 27 
Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex II 

verschiedenen  Bereichen  der  Inhaltsschranken  (kritische,  umstrittene  Tatsachenbehauptungen,  kritische 
Meinungsäußerungen,  unstreitig  wahre  Veröffentlichungen  über  Personen  etc.) 
jeweils  an 
unterschiedlichen  Stellen  restriktiver  oder  freier  sind,  könnten  ansonsten  (in  Europa  weithin  bekannte) 
Prominente  sich  für  jeden  Fall  dasjenige  Land  aussuchen,  das  für  die  jeweils  anstehende  Frage  die 
freiheitsfeindlichste Regelung vorsieht. Es würde dann nicht mehr, was allein eine leidliche Pressefreiheit 
gewährleistet,  das  jeweilige  Presserecht  mit  seinen  Bereichen  größerer  und  geringerer  Freiheit  ein 
insgesamt  handhabbares  System  aus  Freiheit  und  Schranken  für  die  Zeitungen  und  Zeitschriften  im 
jeweiligen Land darstellen können. 

Antwort zu Frage 2: 
Wieder handelt es sich um eine unzulässige Vereinfachung. Es geht darum, ob für eine Zeitung in Spanien, 
eine in UK oder in Deutschland oder wo auch immer das Presserecht des jeweiligen Landes oder auch die 
jeweils  restriktiveren  Teilbereiche  der  Presserechte  aller  anderen  europäischen  Länder  gelten  sollen,  in 
denen  mit  der  typischen  äußerst  geringen  Zahl  Abonnenten  bedient  und  Interessierte  an  Kiosken  die 
Auslandszeitung erhalten. 

Antwort zu Frage 3: 
Eine angemessene Lösung bietet auch für die Presse auf Papier das Herkunftslandsprinzip, das nach der 
E-Commerce-RiLi für die Online-Presse seit Jahren ohne Probleme Gültigkeit beansprucht und auch durch 
die  Rom  II-Verordnung  nicht  verdrängt  wird  (siehe  Erwägungsgrund  35,  Absatz  2).  Es  ist  für  Online-
Veröffentlichungen  alternativlos,  da  die  Auslieferung  in  Länder,  die  eine  angemessene  Pressefreiheit 
versagen, online nicht verhindert werden kann. 

Ein  Ansatz,  der  für  die  Papierpresse  ebenfalls  vertretbar  erschiene,  ginge  dahin,  das  Recht  des 
Hauptbestimmungslandes einer Publikation auch auf Klagen in anderen Ländern anzuwenden. 
Abzulehnen ist eine europäische Festschreibung des Wohnsitzrechts oder der Aufenthaltsrechtes oder des 
Schadensortes, wenn letzterer jedes Land untergeordneter Randverbreitung einschließt. Die Bedrohungen 
für die Pressefreiheit würden weiter wachsen: Die Zahl der Personen aus bis zu 25 Wohnsitzländern, die 
Bedeutung  für  die  jeweilige  nationale  Öffentlichkeit  erlangen  und  damit  in  der  Presse  kritisch  beobachtet 
werden, nimmt mit der fortschreitenden Europäisierung politischer Prozesse zu. Die öffentlichen Personen, 
über  die  etwa  eine  deutsche  Wochenzeitung  in  einer  Ausgabe  berichten  muss,  will  sie  ihrem  Auftrag 
gerecht  werden,  bedeuten  schnell  eine  Anzahl  unterschiedlicher  Rechtsordnungen,  die  kein  Verlag 
handhaben kann. Gleichzeitig nimmt die Zahl der Äußerungsrechte aus Staaten zu, deren Umgang mit der 
Pressefreiheit ganz unbekannte Risiken birgt. 

-  Complexe  car  la  diffusion  sur  internet  permet  une  diffusion  instantanée  sur  de  multiples  sites  tant 
physiques de géographiques  

-  Das  Herkunftslandprinzip  (Country-of-origin-principle)  entspricht  den  Ansätzen  der  Fernsehrichtlinie  und 
dem  Urheberrecht  (u.a.)  und  hat  sich  diesbezüglich  bewährt.  Die  angestrebten  Regeln  müssen  bei  der 
täglichen  Arbeit  handhabbar  sein.  Redaktionen  müssen  sich  auf  ein/ihr  Rechtssystem  konzentrieren 
können.  Nur  so  lässt  sich  ein  "free  flow  of  information"  realisieren,  wie  ihn  die  EU  seit  jeher  fördert  und 
fordert.  die  anwendbarkeit  unterschiedlicher  Rechtssysteme  führt  zwangsläufig  zu  Unsicherheit  bei  der 
Berichterstattung und wird sie letztlich in vielen  

-  Die  Frage  2.  betrifft  nicht  das  IPR,  sondern  das  materielle  Recht  und  hat  deshalb  mit  der  allgemeinen 
Fragestellung  nichts  zu  tun.  Sie  ist  auch  nicht  gut  gestellt:  Nach  hiesiger  Auffassung  müssen  jeweils  im 
Einzelfall die widerstreitenden Grundrechte abgewogen werden.  

- Eine gewisse Harmonisierung wird durch die - im Kern aber nicht überzeugende, wenn nicht fragwürdige - 
Rechtsprechung des EGMR in Straßburg erzielt.  

- El editor no debe escudarse en que la ley de su país de origen sea más permisiva, si el perjudicado sufre 
un perjuicio en el lugar de difusión es lógico que pueda reclamar allí.  

-  En  caso  de  ser  residente  UE,  si  no  lo  fuera  entonces  la  residencia  del  editor  o  el  lugar  de  difusión  a 
elección del demandante  

- For question number two it depends on the nature of the conflict, but would lean towards the freedom of 
the  press.  Regarding  question  three  I  think  that  a  plaintiff  should  have  a  right  of  action  in  their  place  of 
residence unless no material was disseminated in the country (even vis the internet). Even a tiny amount of 
dissemination should be enough to ground an action as per the ECJ decision in Shevill v Presse Alliance. 
However it is submitted that the plaintiff should be able to sustain an action in their country of residence but 
should be permitted to seek to have the laws of another jurisdiction taken into consideration and should be 
able to seek damages for the damage caused in those jurisdictions.  

- I believe that the standards observed by newspapers are more likely to be uniform across the EU if the 
Newspaper/Editor can have proceedings brought against it/him in other jurusudictions.  

-If it is to be the place of dissemination it must be all such places as otherwise there will be forum shopping 
by  editors  publishing  first  in  the  least  protected  State  .  If  the  place  of  damage  is  to  be  the  decider  and 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
Comparative study on the situation in the 27 
Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex II 

damage must always be an issue there should not be a trial within a trial to see where most damage occurs 
if significant damage occurs that should be sufficient  

-It  is  important  that  the  person  who  disseminates  can  with  certainty  ascertain  the  applicable  privacy  and 
defamation law; it is unreasonable to expect a publisher to be aware of the nuances in the law applicable in 
different Member States.  

-Klarstellung: Wohnsitz oder Sitz  

-The place where publication/ dissemination occurs is the appropriate law - to apply some other law would 
unreasonably stifle publication due to uncertainty - a publisher could not publish without getting legal "sign-
off" from lawyers in multiple-Member States.   

publishers should not be judged by foreign systems, being subject to different opinions about freedom of 
speech in multiple countries other than where published.  

-Se trata de una cuestión difícil, por el conflicto de derechosque se produce, el de la privacidad y el de la 
libertad de expresión, pero, salvo para personas que se dedican a la actividad pública (políticos), y aun en 
este  caso  sólo  en  lo  que  pueda  afectar  al  desempeño  de  su  actividad,  debe  prevalecer  el  derecho  a  la 
privacidad, a la vez que se debe facilitar a los afectados el acceso a los tribunales y el conocimiento de la 
ley que regirá las manifestaciones públicas que les afecten.  

-Sería deseable que el perjudicado pudiera elegir entre su residencia y el lugar de difusión.  

-Specific  provisions  as  regards  privacy  and  freedom  of  expression  are  enshrined  in  the  Charter  of 
Fundamental Rights of the European Union and the European Convention on Human Rights. The Member 
States are required to respect these fundamental rights, therefore, these rights should be protected equally 
at a European level. At present the conflict-of-law rules are diverse, therefore, harmonisation of such rules 
would increase certainty in the law . 

-También entiendo que la residencia de la person perjudicada puede facilitar el procedimiento además del 
coste que siempres supone demandar en otro país y enotro idioma.  

-The potential outcome of Option 4 is that the chosen law (of the place of residence of the editor) has no 
real/substantial connection with the dispute (especially if defamatory material is published on the Internet). I 
chose  option  3  as  a  general  rule  but  option  6  -  the  place  where  the  most  significant  elements  of  the 
damage  occur  -  should  be  an  alternative  which  guarantees  that  the  law  of  the  Member  State  most 
connected to the dispute will be applied. 

- Tratándose de dos bienes jurídicos enfrentados, creo que la prevalencia de un derecho sobre otro debe 
ser  resuelto  casuísticamente  por  el  Juez  a  la  vista  del  carácter  público  o  no  de  la  persona,  del  lugar  y 
circunsncias de la intromisión en la privacidad de que se trate en el caso concreto y del interés objetivo de 
la información.   

-Von  einer  Beantwortung  der  vor-  und  nachstehenden  Fragen  wird  abgesehen,  weil  es  sich  um 
rechtspolitische.  
Fragestellungen handelt. Diese dürften, soweit es um die beabsichtigte Schaffung von Rechtsnormen und 
hierbei.  Um  den  zu  gewichtenden  Rechtsgüterschutz  der  Betetiligten  geht,  in  erster  von  den  politischen. 
Entscheidungsträgern zu beantworten sein.  

-We would recommend the effect test to be considered.  

-Zu  2.  Berücksichtigung  der  Grundrechte  je  nach  konkreter  Situation  (z.B.  Vorrang  der  Pressefreiheit  in 
Bezug  auf  Politiker,  sonstige  Prominente)  -->  differenzierter  Ansatz  notwendig.  Lex  fori  wäre  zwar  im 
Interesse einer Verfahrensbeschleuinigung, kann aber für den Beklagten unangemessen sein 

-Creo que el vínculo más razonablesería el lugar en el que se producen los hechos que son objeto de la 
información,  lo  que  con  frecuencia  coincidirá  con  la  residencia  del  perjudicado;  pero  en  otras  no.  Si  se 
toman fotos de una persona en la Costa Azul el derecho aplicable a la difusión de estas fotografías tendría 
que  ser  el  francés,  con  independencia  de  la  residencia  de  editor,  perjudicado  o  lugar  de  difusión,  sobre 
todo  porque  este  último  criterio  -bastante  lógico,  en  principio-  puede  llevar  a  resultados  indesados  dado 
que la difusión por internet no tiene límites territoriales. 

-Creo que la solución adoptada debería posibilitar un equilibrio entre la protección del presunto perjudicado 
y  la  previsibilidad  para  el  autor  de  la  publicación,  lo  cual  traduce  una  ponderación  adecuada  entre  el 
derecho a la vida privada y la libertad de expresión. No me parece por ello justificada la admisión de un 
favor laesi en atención a la persona afectada, ni recurrir directamente a la ley de su residencia habitual, 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Comparative study on the situation in the 27 
Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex II 

que  sin  embargo  sí  reviste  la  ventaja  de  representar  los  vínculos  más  estrechos  con  el  entorno  social  y 
familiar de la víctima. Sin embargo, creo que dichos vínculos sólo se verán afectados si la publicación es 
difundida  en  el  lugar  de  la  residencia  habitual  de  la  víctima,  lo  que  conllevaría  directamente  una 
identificación de la misma con el locus damni. 

-En el caso de daños directos en varios Estados por difusión internacional (Fiona Shevill), la ley aplicable 
debe ser la ley de la residencia de la víctima si se ha difundido allí, como lugar del daño principal. 

- La conexión a la residencia habitual de la persona perjudicada es la que mejor expresa a nivel conflictual 
el  equilibrio  entre  los  derechos  fundamentales  a  la  vida  privada  y  a  la  libertad  de  expresión  .  Por  regla 
general,  la  residencia  habitual  es  el  centro  de  las  relaciones  sociales,  personales  y  económicas 
susceptibles de verse afectadas por un atentado contra la intimidad u otros derechos de la personalidad . 
Es una conexión previsible tanto para la persona perjudicada ( confia en la protección que le ofrece el país 
de  su  residencia  habitual)  como  para  el  responsable  del  daño  ,  ya  que  suele  conocer  las  circunstancias 
personales de la persona perjudicada , incluido el lugar de su residencia habitual. Permite además aplicar 
una ley única , en aquellos supuestos frecuentes en la práctica en los que el daño se manifiesta en una 
pluralidad de Estados . La aplicación de esta ley permite que responsable de un daño transfronterido sólo 
este obligado a respetar los límites a la libertad de expresión previstos en la ley de la residencia habitual 
del perjudicado.   

-La segunda pregunta es vaga e imprecisa. No se dan suficientes datos como para optar de forma clara 
por  ninguno  de  los  dos  derechos  fundamentales.  Ambos,  precisamente  por  esa  condición  de 
fundamentales, cuentan con el mismo peso jurídico, si bien, las circunstancias que rodean el caso harán 
que se incline a favor de uno u otro. Tal y como reglamenta la LO1/82 y avala jurisprudencia TS y TC. Y 
respecto de la pregunta 3, la correlación forum-ius, condiciona la respuesta según tribunal del foro. No es 
lo  mismo  litigar  en  en  el  locus  delicti  (totalidad  de  los  daños)  que  en  el  locus  damni  (solo  por  los  daños 
causados allí). Si el trib. del foro es el locus delicti, para la práctica procesal, lo adecuado sería aplicar la 
lex fori (lex loci delicti) para evitar la aplicación de la doctrina del mosaico. El problema sería determinar 
claramente cuál es el locus delicti en estos casos (teniendo en consideración los medios de la sociedad de 
la información y lo perentorio de la doctrina Fiona Shevill).  

-Otra  alternativa:  La  residencia  de  la  persona  perjudicada,  salvo  contacto  más  signficativo  con  el  lugar 
donde suceden el elemento o los elementos más significativos de la pérdida o del daño. 

-Pregunta  2:  prevalencia  del  derecho  a  la  libertad  de  información  siempre  que  se  trate  de  personajes 
públicos.Pregunta 3: lugar de difusión siempre que esté controlada por el medio de comunicación. 

-Sur le point 3, le choix se justifie en ce que la concentration du dommage (altération de l´image sociale de 
la  victime  auprès  des  récepteurs  de  l´information  et  du  public  en  général)  au  lieu  de  survenance  de  ses 
éléments  les  plus  significatifs  épargne  les  difficultés  liées  à  la  pluralité  des  lois  applicables  et  à  leur 
extranéité  dans  le  système  de  la  mosaïque.  Au  demeurant,  dans  une  Europe  aux  frontières  poreuses,  il 
les  situations 
serait  curieux  que 
intracommunautaires... Pour assurer le meilleur niveau de protection, si telle est la politique de l’Union, ce 
choix pourrait éventuellement être complété par la possibilité offerte au demandeur d´obtenir l´application 
de la lex fori, telle que la déterminerait la mise en oeuvre de l´article 5-3 de Bruxelles 1 (abstraction faite la 
solution  de  dispersion  et  multiplication  des  procédures  de  l´arrêt  Fiona  Shevill;  i.e.  en  étendant  la 
concentration du dommage au plan de la compétence internationale)  

l’étanchéité  de  celles-ci  dans 

impose  ou  suppose 

l´on 

-The place in which editorial control is exercised. Here, and in relation to questions 1 and 2 also we wish to 
state that European Publishers Council remains deeply sceptical as to the desirability of EU intervention in 
this area, touching as it does so closely the area of editorial responsibility and freedom, something which 
under  the  Treaties  IS  outside  the  legal  competence  of  the  EU.  During  the  negotiation  of  the  Rome  II 
Regulation we recalled that the only legal basis upon which the EU is competent to intervene is on internal 
market  economic  grounds.  EU  intervention  in  the  area  of  choice  of  law  in  defamation  and  privacy  cases 
self-evidently  has  no  economic  single  market  objective.  Further  than  this,  I  regret  European  media  are 
unwilling to go. The principle of protecting editorial freedoms at national level is of paramount importance 
and has been expressly acknowledged and reaffirmed in strong Recitals contained in recent single market 
instruments such as the Market Abuse Directive, in relation to financial journalism, and in the Audiovisual 
Media Services Directive. 

 
 
 
 
 
 
 
 
 
 
Comparative study on the situation in the 27 
Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex II 

4. Regardless of the general rule, should the law of the Member State of the usual 
residence of the plaintiff and the publisher prevail over the general criteria?

Yes                   

48,8% 

No          

51,2% 

Free text comments to Q4

- Again, if more uniform standards are to prevail, a more flexible approach is needed.  

-Allein Country of origin; siehe 3.  

-Although the residence of the plaintiff is most likely to be the place where the most significant elements of 
the damage occur.  

-Der gewöhnliche Aufenthalt des Klägers soll für sich genommen keine besondere Rolle spielen, da bspw. 
eine  spanische  oder  deutsche  Zeitung  sich  bei  der  kritischen  Auseinandersetzung  mit  einem  Politiker, 
Unternehmer  etc.  auf  das  spanische  bzw.  deutsche  Presserecht  verlassen  können  muss.  Der  Grad  an 
Kritik kann nicht davon abhängen, ob der Betroffene im Iran, in China, in den USA oder in UK etc. wohnt. 
Hingegen ist der Herausgeberort in der Regel auch der Verbreitungsort (spanische Zeitung in Spanien etc.) 
und  also  der  gesellschaftliche  und  soziale  Wirkraum  der  Kommunikation,  die  auch  die  letztlich  in  diesem 
Wirkraum für ihn bestimmten rechtlichen Grenzen der Kommunikation beachten können und müssen. Ihm 
kommt also natürlich besondere Bedeutung zu, wenn Pressefreiheit mehr ist als ein Wort. 

-Die Frage ist sprachlich nicht recht verständlich  

-El simple hecho que editor y perjudicado sean de un mismo país, no obsta que se pueda reclamar en una 
jurisdicción diferente si el perjudicado la considera más ventajosa.  

-Entiendo que habiendo seleccionado como criterio general la residencia del editor o el lugar de difusión, si 
coincide la residencia con la del demandante , lógicmente ésta sera la opción elegida por el demandante, 
no es necesario añadir esta prevalencia.  

-Ich bin unschlüssig. Diese Regelung hätte etwas für sich.  

-If both in sma estare - yes   

-Maßgeblich  für  die  Feststellung  einer  Persönlichkeitsrechtsverletzung  ist  der  Ort  des  schädigenden 
Ereignisses. Die Berichterstattung der Medien muss sich an dem Recht messen lassen, das im jeweiligen 
Verbreitungsgebiet  Anwendung  findet.  Bei  einer  grenzüberschreitenden  Verbreitung  ist  es  hinzunehmen, 
dass der Kläger das Forum wählen kann.   

-No - see the reasons provided at 3.  

-Not  necessarily  if  the  publisher  is  resident  in  country  A  and  the  plaintiff  is  resident  in  country  B  and  the 
vast majority of the dissemination of the defaming materials occurred in countries C,D and E then obviously 
these should be of relevance, and as set out below either the plaintiff or the court should have the power to 
consider applying the laws in jurisdiction C,D and E.  

-Question is unclear  

-Uunless they live/work in the same country: then yes!  

-Wenn es denn ein einheitliches Recht wirklich gibt, dann ist die Frage des Gerichtsstandes im Kern auch 
durch Fragen des Bequemlichkeitsinteresses bestimmt.  

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Comparative study on the situation in the 27 
Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex II 

-Βάσει της νοµοθεσίας αυτής θα πρέπει να διαπιστώνεται η προσβολή του δικαιώµατος. Το πρόβληµα θα 
εξέλιπε εαν υπήρχε ρύθµιση των προϋποθέσεων ευθύνης καθώς και των αξιώσεων σε επίπεδο Ενωσης. 

-Creo conveniente que se permita que la víctima pueda optar por la ley que más protega su derecho y la 
residencia común simplifica pero no creo que dispense esa protección necesaria. 

-Creo que esta ley puede expresar el mayor equilibrio posible en la ponderación de intereses aludida en el 
apartado anterior. 

-Dans  le  cas  de  l´atteinte  transfrontière  à  la  vie  privée,  cette  hypothèse  -  quoique  pouvant  intéresser  les 
people  -  reste  marginale  pour  le  commun  des  mortels.  Sur  un  plan  général,  le  dommage  étant  survenu 
hors de l´Etat de la résidence des protagonistes et consistant dans la dégradation de l´image sociale de la 
victime auprès d´un public hors de cet Etat de résidence, il paraît plus approprié de définir les conditions, la 
nature et les modalités de la réparation en fonction de ce public et par conséquent de maintenir la solution 
recommandée au point 3. 

-Garantiza la previsibilidad del responsable y los intereses de la víctima. 

-If in conflict the law of the publisher should prevail. 

-La  ley  de  la  residencia  habitual  de  la  víctima  sólo  debería  aplicarse  en  defecto  de  residencia  habitual 
común del resposable del daño y de la victima. 

-La respuesta afirmativa sería inconguente con la respuesta 3. 

-Permite una mayor seguridad jurídica, y previsión apra mabas partes. Suele coincidir con el lugar con el 
que  rpesenta  el  asunto  los  vínculos  más  estrechos.  Pero  como  indiqué  antes,  siempre  habrá  que 
atenderse  a  las  circunstancias  concretas  del  caso,  y  debe  combinarse  con  la  cláusula  de  escape  de  la 
pregunta 5.  

-Unklare Fragestellung; i.ü. über Ziffer 3. geregelt.

 
 
 
 
 
 
 
 
 
 
 
 
Comparative study on the situation in the 27 
Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex II 

5. To make the conflict-of-law rules more flexible, and if it responds better to both 
parties’ expectations, along with the above possibilities, should the court that is 
knowledgeable on the issue be given the option to apply any other law, if that law 
is more connected to the issue?

Yes     

59,4% 

No  
40,6% 

Free text comments to Q5

-Aber zugunsten des Geschädigten   

-Allein Country of origin; siehe 3.  

-Aunque es peligroso el aplicar el "iura novit curia" en toda la Unión Europea  

-Ein Gericht sollte sich mit Gesetzen aus einer anderen Rechtsordnung zurückhalten.  

-Eine  Rechtswahl  durch  das  Gericht  widerspräche  evident  rechtsstaatlichen  Prinzipien.  Vielmehr  muss  das 
anzuwendende Recht vorhersehbar und eindeutig bestimmbar sein.  

-Eine solche Flexibilität würde zu Rechtsunsicherheit und Chaos führen.  

-Grundsätzlich ja. Dies kann aber zu Rechtsunsicherheit führen, wenn ein Gericht Ermessensspielräume hat 
und diese aus welchen Gründen immer in vergleichbaren Fällen unterschiedlich anwendet. Das – 

-Gericht  sollte  daher  eine  Anwendungspflicht  treffen,  wenn  man  diese  Regelungstechnik  grundsätzlich 
verfolgen will.  

-In der Praxis dürfte es kaum möglich sein, sich als Richter hinreichend über die gesetzlichen  

-Bestimmungen  anderer  Mitgliedsländer  zu  informieren.  Entsprechende  Kenntnisse  könnten  nur  nach 
langwierigen  Recherchen  erlangt  werden,  die  einer  schnellen  Erledigung  des  Rechtsstreits,  die  in  den 
angesprochenen Fällen im Interesse gerade der verletzten Partei liegt, entgegen stehen.  

-No.  The  law  of  the  place  where  the  publication  is  disseminated  should  apply  and  the  courts  in  that  place 
should apply their own law.  

-No. Will get it wrong   

-See comment to question 4  

-Siempre que vaya en beneficio de una mayor agilidad y precisión debería permitirse.  

-So abstrakt kann das nicht beurteilt werden. Es ist aber bei den einzig sinnvollen Regeln,  

-Herkunftslandsrecht oder Recht des Hauptverbreitungslandes, auch wohl nicht nötig.  

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Comparative study on the situation in the 27 
Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex II 

-Sólo cuando se den al tribunal criterios objetivos que determinen cuándo se dan vínculos más estrechos; si 
no, tenderá a aplicar la lex fori del prppio tribunal.  
there must be some guidelines otherwise trials will be very expensive dealing with preliminaries such as law of 
the wrong etc..  

-Yes as per my example in 4  

-Aunque creo que podría resultar adecuada esta opción para tener en cuenta factores como el volumen de 
ventas o las audiencias, por ejemplo, también puede introducir un cierto riesgo de arbitrariedad.  

-Contestado  en  comentario  a  respuesta  3,  que  ya  apunta  a  una  regla  flexible.  Ver  respuestas  a  pregunta 
especial infra. 

-En la misma línea que lo anterior, sí cuando la ley con la que el supuesto presente vínculos más estrechos 
mejore la protección de la víctima/demandante. 

-Esta es una solución que tiene sentido en el caso de conexiones neutrales, pero no en una materia como la 
presente en que la vida privada debe garantizarse de forma especial. Por lo demás, genera claramente falta 
de armonía en las soluciones y facilita vás de escape para países de protección restrictiva partidarios de la 
double actionability. 

-La  cláusla  de  escape  es  una  vía  adecuada  para  conseguir  la  justicia  material,  siempre  y  cuandos  e 
encuentre suficientemente justificada la aplicación de esa otra ley.  

-La  ley  de  la  residencia  habitual  de  la  persona  perjudicada  debería  ir  acompañada  de  una  "  cláusula  de 
excepción"  cuando  del  conjunto  de  circunstancias  del  caso  se  desprenda  que  existe  otra  ley  más 
estrechamentge vinculada o cuando no sea posible determinar con exactitud cuál es la residencia habitual del 
perjudicado.  Puede  suceder  que  la  elección  de  la  residencia  habitual  obedezca  a  motivos  fiscales  o  que, 
trátándose de una persona famosa internacionalmente , sea dificil determinar cuál es el centro efectivo de sus 
relaciones sociales.  

-S´il s´agit d´une réserve de flexibilité laissée à l´appréciation du tribunal, la réponse ne peut qu’être négative; 
le tribunal compétent aura bien d´autres occasions de remédier aux carences du législateur communautaire, 
lequel devrait s´il avait conscience de sa fonction, renoncer à se décharger ainsi sur le juge à chaque fois qu´il 
est lui-même dans l´incapacité de fixer la solution appropriée; ce type de "clause échappatoire" est peut-être 
un  aveu  d´humilité,  mais  c´est  d´abord  un  aveu  d´impuissance,  dont  il  faudrait  tirer  la  conséquence  en 
s´abstenant  de  légiférer.  S´il  s´agit  d´offrir  une  optio  legis  au  demandeur,  la  réponse  est  positive,  selon  les 
termes indiqués sous la question 3  

-Únicamente en el caso en el que no se consagrara, como criterio para determinar el ordenamiento aplicable, 
la elección de éste por parte del demandante

 
 
 
 
 
 
 
 
 
 
 
 
Comparative study on the situation in the 27 
Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex II 

6. In these types of violations, damage is often caused in several countries. In this 
case, according to your criteria, which law should the judge apply?

The law of the publisher’s country of residence, if 
it is the origin of the fact causing the damage. 

The law of every country in which the damage is 
caused or the news published, in a distributed 
way. 

The law of the publisher’s country of residence, if 
it is the origin of the fact causing the damage. 

The law of the country where the most significant 
facts occur concerning the damage or loss. 

The law most connected to the case and 
foreseen by the parties. 

Others 

Free text comments to Q6

-As the Plaintiff suffers damage he should have the choice of law not the wrongdoer  

-Country of origin; siehe 3.  

-Dass tatsächlich in den typischen Fällen, in denen eine Zeitung in einem Land zu 99% verbreitet wird und 
nur geringe Randverbreitungen in anderen Ländern mit anderer Sprache und anderen öffentlichen  
Diskussionen stattfinden, „häufig“ in mehreren Ländern ein messbarer Schaden entsteht, muss bezweifelt 
werden. Anzuwenden sein sollte das Recht des Herkunftslands der Publikation oder dasjenige der  
Hauptverbreitung der Publikation. Nur zur Erläuterung: In aller Regel sind beide identisch. In aller Regel tritt 
im Land der Hauptverbreitung auch der größte Teil des Schadens ein. 

-En este caso debería quedar en manos del perjudicado el elegir el fuero más favorable, ya que el daño se 
produce en varios posibles lugares al mismo tiempo.  

-Es  sollten  die  gesetzlichen  Vorschriften  des  Landes  gelten,  in  dem  der  Herausgeber  als  beklagte  Partei 
seinen Sitz hat, denn dort sollte nach meiner Meinung auch der Rechtsstreit anhängig gemacht werden.  

-It is unclear what is meant under foreseen. For example, if the violation occurs through Internet and the 
publisher/editor has determined the applicable law in the Terms and Conditions published on the webpage 
(e.g http://www.bbc.co.uk/terms/#6), is that considered to be foreseeable?  

-Option  3  kann  zu  praktischen  Schwierigkeiten  führen.  Option  4  ist  für  mich  unklar  (wann  ist  eine 
Rechtsprechung am stärksten auf den Fall zutreffend?)  

-Por coherencia con respuestas anteriores tiene que ser la ley de residencia del perjudicado  

-Por consistencia con la cuestión 3, y, a la vez, para facilitar la acción del perjudicado  

-See answer to question 3  

-This way you only have one trial EU wide but the judge can consider all of the relevant jurisdictions laws in 
which  you  were  defamed  and  grant  damages  accordingly  which  is  a  much  more  satisfactory  than  a 
separate  trial  in  every  jurisdiction.  Option  number  three  and  four  are  also  a  viable  solutions  but  would 
presumably limit any damage claim to whichever jurisdiction is chosen.  

 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Comparative study on the situation in the 27 
Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex II 

-Variante 2 zielt auf die Verantwortlichkeit im Rahmen eines nationalen Rechtssystems. Das ist praktikabel 
und  erspart  die  Probleme,  die  mit  Frage  Nr.  7  aufkommen.  Soweit  ein  Verstoß  allerdings 
grenzüberschreitend  wirkt  und  der  Herausgeber  adäquat  kausal  handelte  (  erlaubte  Veröffentlichung  in 
einem anderen Land) sollte eine Wahlfreiheit der Klagepartei bestehen, eine Kombination also aus Option 
#2 und #3.  

-Wenn - vgl. Frage 1 - in der Tat ein einheitlcihes Recht gilt, dann spricht aj auch vieles dafür, dass dann 
vermutlich  auch  ein  einheitliches  Schadensersatzrecht  gelten  sollte,  weil  es  wenig  Sinn  macht,  nur  die 
Voraussetzungen  (Eingriff/Verletzung)  zu  reglen,  nicht  aber  auch  die  Rechtsfolgen.  Dann  macht  die 
gestellte  Frage  nur  dann  Sinn,  wenn  es  sich  um  eine  Mindestharmonisierung  handelt,  so  dass  dann 
weitergehende Ansprüche unberührt bleiben. Das ist bei der Antwort voruasgesetzt.  

-Country of origin 
-Country of origin 
-Country of Origin 
-Country of origin 
-Country of origin 
-Country of origin 
-Country of Origin 

-Creo que la aplicación de la teoría del mosaico en la práctica judicial es muy compleja y costosa para el 
perjudicado (V.gr. carga de la prueba 281 LEC 2000), y en caso de litigar en el locus delicti debería (ya 
que conocerá de la totalidad de los daños por ser el lugar de origen) aplicarse  su lex fori. Pero al existir 
varios fueros de competencia, según donde se litigue el criterio adecuado parece ser otro. creo que ha de 
coordinarse foro y derecho aplicable, para poder unificar razonablemente. Debe correlativamente crearse 
un fuero especial para esta materia u norma de conflicto uniforme en la UE. No hacéis referencia alguna a 
la sociedad de la Información. ¿Qué pasa con los ilícitos cometidos en la Red? Cuál sería el locus delicti? 
¿Necesitaría  de  una  regla  específica:  tanto  en  competencia  judicial  internacionala  como  en  derecho 
aplicable?  NO  puedo  marcar  una  en  concreto,  por  todo  ello.  Creo  que  la  doctrina  Fiona  Shevill  también 
puede ser adecuada a este supuesto. 

-Dada la conexión que defiendo estos problemas no se producirán. 

-El sentido de la respuesta 3 ya cubre esta pregunta. 

-En tal caso, la elección debería consistir en la ley de la residencia del editor o la ley de la residencia de la 
víctima, si ésta última fuera lugar de difusión de la noticia (producción del daño). 

-Esta solución permitiría prescindir de la técnica de mosaico, que conduce a la aplicación distributiva de l 
las  diversas  normativas  nacionales,  ya  que  un  único  ordenamiento  resolvería  sobre  el  conjunto  de  los 
perjuicios sufridos por el demandante y las indemnizaciones pertinentes. 

-La réponse s´entend du droit du pays où surviennent les éléments principaux du dommage et correspond 
donc à celle faite à la question 3 

-Ley de la RH de la víctima o, en su caso, la más vinculada con el supuesto 

-Ley residencia victima 

-Salvo vínculos más estrechos, y con independencia de la relevancia de normas imperativas, la ley de la 
residencia habitual de la víctima no tiene que tener más excepciones 

-The law of the country in which editorial control is exercised 

-Una de las razones por la que se considera que la conexión más apropiada es la de la residencia habitual 
de  la  persona  perjudicada  es,  como  ya  se  ha  señalado,  que  permite  la  aplicación  de  una  ley  unica  en 
aquellos supuestos de plurilozalización del daño. La aplicación distributiva de la ley de cada país donde se 
ha  difundido  la  noticia  difamatoria  ,  puede,  dada  la  diversidad  de  los  dercehos  nacionales,  dar  lugar  a 
soluciones  contradictorias  o  incoherentes  respecto  de  un  mismo  ilícito  .  Ninguna  de  las  otras  soluciones 
propuestas nos parece adecuada , dado el desequilibrio que generan entre el derecho a la vida privada del 
perjudicado y el derecho a la libertad de información del responsable. La ley de la sede del editor inclina 
excesivamente  la  balanza  a  favor  del  responsable  del  medio  que  ha  difundido  la  noticia.  Asi  mismo,  la 
atribución al perjudicado de un derecho a optar por la aplicación de la ley de la residencia del editor o la 
ley del lugar de difusión o del daño directo resulta excesivamente favorable a la victima   

-Una sola ley hace perder los matices de cada difusión.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Comparative study on the situation in the 27 
Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex II 

7. If, according to the chosen criteria, in the law finally chosen to be applicable, the 
protection of the freedom of the press is less than the protection that the law of the 
country of the knowledgeable court would give, do you think the latter law should 
be selected?

Yes                    

16.6% 

No      

31.3% 

Only if the chosen law goes against 
the public international order of that 
State. 
52.1% 

Free text comments to Q7 

-But there needs to be a degree of flexibility to predict and address the different scenarios that are likely to 
occur.  Not  everyone  should  be  reviewed  equally  in  the  eyes  of  the  press  and  what  is  considered 
defamatory  for  a  public  person  who  court  the  press  and  private  person  is  and  should  be  different.  The 
court should be given a discretion as to what laws to apply.  

-Die Abweichung des anzuwendenden Rechtes von der lex fori ist der Regelfall jeder Kollisionsnorm, die 
nicht  einfach  die  lex  fori  zur  Anwendung  bringt.  Der  gesetzte  Fall  dürfte  aber  nicht  sehr  häufig 
vorkommen. Denn in der Praxis wird ein Gericht in einem Land bloßer Randverbreitung in der Regel nur 
dann  angerufen,  wenn  das  Recht  dort  weniger  Pressefreiheit  gewährleistet  als  im  Erscheinungs-  und 
Hauptverbreitungsland.   

-Medien  müssen  sich  auf  ein  Rechtssystem  konzentrieren  können  (siehe  3.).  Die  entsprechenden 
Rechtsgrundsätze müssen dann jedoch zwingen bei der Berichterstattung beachtet werden.  

-Normalmente,  el  perjudicado  está  en  posición  de  desventaja  frente  al  editor,  por  tanto,  salvo  que  las 
leyes internas del estado obliguen a usar su jurisdicción, lo aconsejable sería optar por el criterio elegido.  

-Otherwise it would be a clear case of potential forum shopping.   
So  long  as  the  margin  of  appreciation  produces  different  results  on  such  a  sensitive  issue  the  risk  of 
nationalistic backlas cannot be ignored.  

-Wenn eine einheitliche Ordnung besteht oder geschaffen wird, erübrigt sich eigentlich diese Frage - oder 
sehe ich was falsch?  

-Country of origin; sonst Konflikt zu Ziff. 8. 

-Cualquier otra postura supondría desvirtuar la remisión que la norma de conflicto realiza al ordenamiento 
jurídico, cuando éste es lex causae. Supondría promover el forum shopping. 

-El caracter fundamental de los derechos en conflicto no justifica una aplicación sistemática de la lex fori 
cada vez que la protección de la libertad de prensa según la ley aplicable  
(residencia  habitual  del  perjudicado)  es  menor  que  la  prevista  en  la  ley  del  tribunal  que  conoce  del 
asunto.  La  exclusión  de  la  ley  aplicable  sólo  esta  justificada  cuando  ésta  resulta  manifiestamente 
contraria  a  los  criterios  utilizados  por  la  jurisprudencia  constitucional  y  del  Tribunal  Europeo  de  los 
Derecho  Humanos  a  la  hora  de  ponderar  y  establecer  las  relaciones  y  límites  recíprocos  de  ambos 
derechos fundamentales  

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Comparative study on the situation in the 27 
Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex II 

-En  realidad  la  excepción  de  orden  público  no  es  la  única:  hay  que  tener  en  cuenta  la  relevancia  de 
normas  de  orden  constitucional  cuyo  contenido  garantizador  de  libertades  no  puede  desconocer  el 
Tribunal, al modo de las normas imperativas 

-Evidentemente  no  se  puede  prescindir  de  el  criterio  de  orden  público,  pero  en  esta  materia  es  precisa 
una  orientación  material  que  haga  primar  los  derechos  fundamentales  individuales  a  la  libertad  de 
expresión. Lo contrario habilitará un forum shopping y promocionará la deslocalización de empresas de 
comunicación hacia paraísos de "libertad de prensa". 

-Grundsätzlich Country of origin; ansonsten Konflikt zu 8. 

-Grundsätzlich Country of origin; ansonsten Konflikt zu Ziff. 8. 

-Sí, pero solamente si se ha producido la difusión en el Estado del tribunal y, además, esta protección es 
considerada como de orden público en el Estado del tribunal. 

-Une réponse positive favorable à la substitution de la lex fori ou à la "double actionnabilité" accorderait la 
priorité  à  la  protection  de  la  liberté  de  la  presse  sur  la  protection  de  la  vie  privée,  ce  qui  serait  peu 
compatible avec la réponse faite à la question 2. Il ne reste alors au juge que la ressource d´opposer la 
contrariété à l´ordre public international, pourvu qu´elle soit manifeste. 

8. If, according to the chosen criteria, in the law finally chosen to be applicable, the 
protection of the privacy rights is less than the protection that the law of the 
country of the knowledgeable court would give; do you think the latter law should 
be selected?

Yes                    

16.7% 

No      

29.0% 

Only if the chosen law goes against the 
public international order of that State. 
54.3% 

Free text comments to Q8

-Abweichungen führen zu Rechtsunsicherheit. Ein Richer wird regelmäßig versucht sein, bei  

-Ausnahmeregelungen sein eigenes Recht anzuwenden.  

-Aus den bei Frage 6 gegebenen Gründen kann die Antwort nur nein lauten-  

-Como se ha dicho antes, al estar el perjudicado en posición desventajosa frente al editor, se debe buscar 
siempre  la  norma  más  favorable  para  la  parte  más  débil,  salvo  que  normas  internas  del  estado  lo 
impidieran.  

lex 

-Die Abweichung des anzuwendenden Rechtes von der lex fori ist der Regelfall jeder Kollisionsnorm, die 
nicht  einfach  die 
fori  zur  Anwendung  bringt.  Die  allein  sinnvollen  Regeln  entweder  des 
Herkunftslandsprinzips  oder  des  Hauptverbreitungslandes  führen  dazu,  dass  auf  eine  Klage  in  einem 
Randverbreitungsland auch dann das Recht der Hauptverbreitung oder der Herkunft anzuwenden ist, wenn 
die  Pressefreiheit  in  diesem  Randverbreitungsland  restriktiver  ist.  Die  lex  fori  soll  dann  natürlich  nicht 
gelten.  Wie  immer  wird  die  ordre  public  als  Ausnahme  auch  die  Grundrechte  einschließen,  so  dass  eine 
Verletzung grundrechtlicher Vorgaben nach der lex fori geltend gemacht werden kann. 

-Dito zu Ziff. 7.  

-No for the same reasons as above  

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Comparative study on the situation in the 27 
Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex II 

-Otherwise it would be a clear case of potential forum shopping.   

- Country of origin; sonst Konflikt zu Ziff. 7. 

-El caracter fundamental de los derechos en conflicto no justifica una aplicación sistemática de la lex fori 
cada vez que la protección de los derechos de la personalidad según la ley aplicable ( residencia habitual 
del perjudicado) es menor que la prevista en la ley del tribunal que conoce del asunto. La exclusión de la 
ley  aplicable  sólo  esta  justificada  cuando  ésta  resulta  manifiestamente  contraria  a  los  criterios  utilizados 
por la jurisprudencia constitucional y del Tribunal Europeo de los Derecho Humanos a la hora de ponderar 
y establecer las relaciones y límites recíprocos de ambos derechos fundamentales  

-El mismo argumento anterior. No puede darse primacía, sin más, a un derecho sobre otro, sin atender a 
las circunstancias concretas. 

-Entiendo, en coherencia con todo lo anterior, que la protección de los derechos de la personalidad deben 
primar sobre la libertad de prensa. 

-Grundsätzlich Country of origin; ansonsten Konflikt zu 7. 

-Grundsätzlich Country of origin; ansonsten Konflikt zu Ziffer 7. 

-Idéntica respuesta a la anterior 

-La substitution de lex fori est conforme à la réponse faite à la question 2 comme à celle faite à la question 
3. Cette substitution de la lex fori, censurant la lex loci delicti conduirait à frapper plus sévèrement le délit 
transfrontière  que  le  délit  purement  interne;  elle  n´est  acceptable  que  si  le  système  de  solution  est 
matériellement  orienté  vers  la  plus  haute  protection  possible  de  la  privacy,  mais  en  tout  état  de  cause 
comme  suggéré  à  la  réponse  à  la  question  3,  cette  substitution  doit  être  laissée  à  la  discrétion  du 
demandeur.  Il  ne  reste  alors  au  juge,  si  le  demandeur  ne  réclame  pas  le  bénéfice  de  la  lex  fori,  que  la 
ressource  d´opposer  le  cas  échéant  la  contrariété  à  l´ordre  public  international,  pourvu  que  celle-ci  soit 
manifeste. 

-Si  la  conexión  responde  a  la  protección  de  la  vìctima,  garantizando  la  posibilidad  de  elección  y  de 
protección  conforme  a  la  ley  de  su  residencia/difusión,  no  hay  motivos  para  esta  protección,  a  salvo  del 
orden público. 

-Siempre que la protección de los derechos de la personalidad sea considerada de orden público por dicho 
tribunal.

 
 
 
 
 
 
 
 
 
 
 
 
 
Comparative study on the situation in the 27 
Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex II 

9. Should a specific conflict-of-law rule be foreseen for news and defamatory 
information distributed on the Internet?

Yes    
62,3% 

No      

37,7% 

Free text comments to Q9

-As at 7  

-Die Besonderheiten des Internets - weltweiter zeitgleicher Zugriff auf Informationen - gebieten eine 
 gesonderte kollisionsrechtliche Regelung.  
dies  scheint  nicht  notwendig  zu  sein;  die  allgemeinen  Kriterien  reichen  aus  (Rom  II  und  das  allgemeine 
nationale Kollisionsrecht).  

-En  caso  contrario,  sería  muy  difícil  determinar  la  norma  realmente  aplicable.  Debería  en  estos  casos 
darse una amplia libertad de elección al perjudicado.  

-Es sollten einheitliche Regelungen (country of origin) für grenzüberschreitende Massenmedien geschaffen 
werden.  

-In  such  case  the  general  connection  criteria  to  determine  the  applicable  law  should  be  the  place  of 
residence of the editor, or the place of dissemination (direct damage), as chosen by the plaintiff  

-Internet  tiene  difusión  transnacional  por  lo  que  una  publicación  puede  causar  daño  en  varios  países  al 
mismo  tiempo,  sería  interesante  crear  un  fuero  propio  para  internet  que  agilice  los  procesos  y  evite 
procesos largos por la burocracia interna de los países.  

-Ja in dem Sinne, dass für Online-Veröffentlichungen ausschließlich das Herkunftslandsprinzip akzeptabel 
ist.  Es  wird  allerdings  schon  durch  die  E-Commerce-Richtlinie  angeordnet  (ungeachtet  der  Frage  der 
dogmatischen  Konstruktion)  Die  Frage  ist  irreführend,  da  die  Frage  des  auf  Online-Veröffentlichungen 
anwendbaren Rechts unter Einschluss des Deliktsrechts inklusive Persönlichkeitsrechtsverletzungen durch 
ist.  Es  besteht  mit  dem  Herkunftslandsprinzip  eine  spezifische 
Europarecht  bereits  geregelt 
europarechtliche Regelung durch die E-Commerce-Richtlinie. Das Herkunftslandsprinzip gilt insbesondere 
auch  für  gesetzliche  Anforderugen  an  den  Inhalt  von  Online-Veröffentlichungen.  Der  Vorrang  der  E-
Commerce-Richtlinie  ist  durch  die  Rom  II-Verordnung  in  Erwägungsgrund  35  (2.  Absatz)  ausdrücklich 
anerkannt.  Dass  dieser  Sachverhalt  im  Fragebogen  nicht  dargestellt  und  gewürdigt  wird,  erscheint 
unverständlich.  Das  Herkunftslandsprinzip  ist  für  die  Online-Presse  absolut  unabdingbar,  da  die 
Anwendbarkeit  aller 
restriktiveren  Rechte  möglicher  Abruforte  zu  völlig  einschüchternden  und 
unnehmbaren Beschneidungen freier Berichterstattung führen würde. 

-Most of the webpages contain a link to Terms and Conditions determining the applicable law. If there is no 
specific rule, it is always up to the editor to determine the applicable law. Other connecting factors (e.g. the 
place where the defamatory material was disseminated) are difficult or even impossible to determine and 
therefore, there may be no other choice than to apply the law determined in the Terms and Conditions.   

-The internet must be considered as a discrete issue.  

-Zumindest klare Regelungen wünschenswert  

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Comparative study on the situation in the 27 
Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex II 

-  As  per  the  Parliament’s  amendment  this  should  be  the  law  of  the  country  in  which  editorial  control  is 
exercised.  This  would  bring  private  international  law  aspects  of  cross  border  information  society  services 
into line with the internal market approach of the E-Commerce and Audiovisual Services Directive 

-Creo  no  resultaría  necesario  distinguir  la  regulación  de  estas  vulneraciones  online  de  las  realizadas  a 
través  de  soportes  tradiciones,  y  que  podría  bastar  con  definir  de  forma  unívoca  nociones  específicas 
como "servidor", etc. 

El  probelma  de  internet  es  identificar  al  responsable;  que  sea  una  ley  u  otra  no  parece  que  requiera  un 
tratamiento diferenciado. 

-El sentido de la respuesta 3 ya cubre esta pregunta. 

-En  este  ámbito  puede  mantenerse  un  cirterio  similar,  pero  es  preciso  definir  qué  se  entiende  tanto  por 
residencia  del  editor  como  por  lugar  de  difusión.  En  general,  mantener  el  criterio  de  la  residencia  de  la 
víctima facilita esta extrapolación. 

-Keine Vereinfachung 

-Las razones que justifican la aplicación de la ley de la residencia habitual de la persona perjudicada no se 
alteran  por  el  hecho  de  que  el  medio  de  comunicación  utilizado  sea  Internet.  Cuestión  distinta  son  las 
dificultades  de  derecho  material  que  pueden  surgir  en  el  marco  de  la  ley  aplicable,  tales  como,  la 
imposibilidad de identificar el responsable dada la existencia de mecanismos que facilitan el anonimato en 
el empleo de mensajes difamatorios  
(de  ahi  la  posible  imputación  de  la  responsabilidad  al  proveedor  del  servicio  que  divulga  la  información 
difamatoria)  

-Porque es un medio en el que la difusión es incontralada e instantánea. 

-Si l´internet est réellement international ou délocalisé - le lieu d´injection dans le réseau étant indifférent et 
flottant tandis que la survenance du dommage reste diffuse sauf le cas où le message est dirigé vers un 
pays ou groupe de pays déterminé- il faut prévoir une solution spéciale qui consisterait à désigner la loi de 
la résidence habituelle de la victime (avec concentration du dommage) sauf à préférer la loi de la résidence 
de l´auteur du dommage ou la lex fori si le demandeur le réclame. 

-Son  ilícitos  a  distancia  y  plurilocalizados,  siempre.  Debe  establecerse  criterios  propios  atendiendo  a  las 
especiales características del medio, a la hora de establecer el punto de conexión para la localización del 
derecho aplicable. Lo mismo para la determinación de la competencia judicial internacional, y la necesidad 
de un fuero específico. 

-Technologically neutral rules should be favoured.

 
 
 
 
 
 
 
 
 
 
 
 
Comparative study on the situation in the 27 
Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex II 

10. Should the law of the country where the media organisation or the press editor 
have their usual residence be the law applicable concerning the right to answer, 
object and rectify?

Yes   
56,8% 

No     
43,2% 

Free text comments to Q10

-Das Recht auf Gegendarstellung etc. gibt das Recht zu einem weitgehenden Eingriff in die Pressefreiheit, 
da  der  Inhalt  einer  Publikation  teilweise  durch  den  Betroffenen  bestimmt  wird.  Wenn  hier  alle  möglichen 
verschiedenen  Rechte  zur  Anwendung  kommen,  sind  die  Belastungen  für  die  Pressefreiheit  unzumutbar 
und überbordend  

-Die  Zeitung  muss  sich  auf  das  Recht  der  Länder  einstellen,  in  denen  sie  erscheint.  Ein  Privileg  der 
Niederlassung sollte es nicht geben.  

-Dont see why this is a valid factor to be taken into account.  

-It  would  be  too  difficult  and  expensive  as  a  practical  matter  to  expect  complainants  to  seek  advice  in 
another country.  

-Si  se  aplicara  ese  principio,  el  editor  volvería  a  estar  en  situación  de  superioridad,  debe  responder  allí 
donde haya sido demandado.  

-Siehe 3.  

-The place of dissimination  

-As consistent with the Audiovisual Media Services Directive, noting that in some countries this is subject to 
self-regulation, not law. 

-El sentido de la respuesta 3 ya cubre esta pregunta. Sin embargo, podria contemlarse la opción por a ley 
más favorable a la víctima.  

-Il  me  semble  ici  préférable  de  s´en  tenir  à  la  loi  en  vertu  de  laquelle  la  responsabilité  a  été  établie. 
Cependant  il  serait  opportun  que  le  juge  pour  prescrire  la  mesure  commandée  ou  autorisée  par  la  loi 
régissant  la  responsabilité  prenne  en  considération  la  loi  du  pays  où  cette  mesure  pourra  être  utilement 
exécutée. 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Comparative study on the situation in the 27 
Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex II 

-It  seems  preferable  to  apply  the  same  rule  (connecting  factor)  to  all  the  aspects  described  in  Article  15 
(scope of the applicable law). 

-La ley que regula la existencia y contenido de los derechos de la personalidad debe ser la misma que la 
que  regula  las  consecuencias  de  su  violación,  incluidas  todas  las  medidas  y  acciones  tendentes  a 
satisfacer  el  interés  de  la  persona  perjudicada  ,  entre  las  que  se  encuentran  el  derecho  de  respuesta  y 
rectificación.  

-La  pretensión  de  rectificación  podría  ser  considerada  como  un  caso  particular  diferenciado  del  resto,  al 
definirse como “figura específica del Derecho de prensa”. La ley aplicable al efecto debería posibilitar una 
rápida reacción, y hay que tener en cuenta que puede suponer una limitación de las libertades de opinión y 
prensa garantizadas constitucionalmente en los Estados miembros. 

-Por  lo  general,  las  leyes  reguladoras  de  estos  derechos  conjuntamente  reglamentan  las  medidas  a 
adoptar  por  la  víctima  y  las  correpondientes  al  agente  del  daño.  LO  razonable,  para  no  volver  a  aplicar 
distintas leyes, para los distintos aspectos de la misma situción jurídica,  es que la ley a  la  que  remita la 
norma  de  conflicto  sea  la  que  regalemnte  todas  aquellas  cuetiones  relativas  a  la  existencia  del  daño, 
consecuencias, efectos, legitimación activa y pasiva, prescripción y caducidad de la acción, etc. 

-Por razones prácticas, es lo más aconsejable. 

-Tiene la ventaja de su simplificidad y su previsibilidad.-This is most reasonable solution  

-Wenn es dem Kläger obliegt (Ziff. 6) die für ihn günstigste Option festzulegen, dann muss  dies auch für 
die Abwehransprüche gelten. Denn nur so kann eine Einheitlichkeit erreicht  werden.  

 
 
 
 
 
 
 
 
 
 
Comparative study on the situation in the 27 
Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex II 

11.  EC  Regulation  44/2001  (Brussels  I)  establishes  (Art.  5,  section  3)  a  special 
competence  for  criminal  or  pseudo-criminal  matters  for  the  court  of  the  place 
where the damaging fact took place. When the places of origin and execution of the 
damaging  fact  do  not  match  (common  in  cases  of  violations  of  privacy  by  the 
press),  it  can  be  inferred  from  jurisprudence  that  the  plaintiff  can  choose  to  bring 
the  case  to  the  court  of  the  place  of  the  generating  fact,  or  the  court  of  the  place 
where  the  direct  damage  took  place.  Do  you  think  these  criteria  should  match  the 
criteria of the applicable law? 

Yes         

69,6% 

No   
30,4% 

Free text comments to Q11

-Criminal and civil codes should be different  

-Eine weitgehende Harmonisierung von zuständigkeitsbegründenden Tatsachen und Anknüpfungspunkten 
des anwendbaren Rechts ist aus verfahrensökonomischen Erwägungen (einfachere Rechtskenntnis) zwar 
wünschenswert,  aber  nicht  unbedingt  erforderlich.  Bei  weitgestreuter  Veröffentlichung  erscheint  es 
durchaus legitim sein am Ort des Ursprungs der Störung zu klagen, ungeachtet dessen, dass das Recht 
des Staates des jeweiligen "Erfolgs" der Störung anwendet wird.  

-En general, sí. Los tribunales, aunque puedan aplicar un derecho ajeno a ellos, necesitarán expertos que 
les ilustren, lo que, al final, hace más trabajosa (si no en muchos casos casi imposible) la decisión, que, 
además,  no  generará  jurisprudencia  en  el  país  del  tribunal,  ni  asegurará  que  la  ley  aplicable  resulte 
rectamente interpretada.  

-La ley aplicable debe ser una determinada, independientemente de la opción de la víctima en cuanto al 
tribunal competente  

-Parece  que  este  criterio  es  más  beneficioso  para  el  perjudicado  por  lo  que  debería  convertirse  en  ley 
aplicable.  

-Siehe meine Kommentare zu 6,7,8  

-"Sofern  der  Betroffene  damit  das  Recht  erhält,  zwischen  zwei  Rechtssystemen  zu  wählen,  ist  dieser 
Ansatz abzulehnen. Mit dem Ansatz wollte 
man  bezwecken,  das  anwendbare  Recht  auf  zwei  Rechtssysteme  zu  begrenzen.  Tatsächlich  funktioniert 
dies schon deshalb nicht, weil die 
vielfältige  Berichterstattung  thematisch  die  gesamte  EU  abdeckt  und  daher  in  der  Summe  der  Beiträge 
sämtliche Rechtssysteme der EUMitglieder 
studiert und berücksichtigt werden müssten." 

-Was meint hier „übereinstimmen“? Vorab: Die Frage der internationalen Zuständigkeit bedarf der Reform 
dahingehend,  dass 
jedenfalls  an  Orten  völlig  untergeordneter  Randverbreitung  schon  die 
Gerichtszuständigkeit zu versagen ist. Zum anwendbaren Recht: Wenn bspw. eine spanische Zeitung oder 
Zeitschrift zu 98% in Spanien und jeweils mit geringen Zahlen in Deutschland, Frankreich, UK, Rumänien, 
Portugal etc. verbreitet wird und in all diesen Staaten eine Klage nach Brüssel I zulässig ist, sollte immer 
das Recht des Herkunftslandes bzw. des Hauptverbreitungslandes Anwendung finden. Also insoweit keine 
„Übereinstimmung 

 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Comparative study on the situation in the 27 
Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex II 

-Wenn damit gemeint ist, dass der Geschädigte dasa anwendbare Recht auswählen darf, dann nein. Es ist 
für  ein  nationales  Gericht  immer  misslich,  ein  fremdes  Recht  anwenden  zu  müssen.  Es  sollte  entweder 
Gemeinschaftsrecht geben oder das nationale Recht des Gerichtsortes gilt.   
würde Gerichtsverfahren beschleunigen  

-Yes  the  rules  of  jurisdictions  and  applicable  law  should  be  coherent  if  it  is  possible  (having  in  mind  the 
problems refereeing to Shevill case)  

-Ορα ανωτέρω όπου επιλέγω ως κριτήριο της κατά τόπο αρµοδιότητος τον τόπο κατοικίας του ενάγοντος. 

-Anteriormente argumentado.  

-Creo  que  los  intereses  que  rigen  en  el  terreno  de  la  competencia  internacional  y  la  ley  aplicable  son 
heterogéneos y no deben coincidir por tanto necesariamente. 

-Deseable sí pero no imprescindible. 

-El  tribunal  puede  elegirse  entre  ambos.  La  ley  tambien  entre  ambos  pero  no  tiene  porque  elegirse  la 
misma en los dos casos. Yo, por ejemplo, elijo el tribunal del lugar del daño porque me queda mas cerca 
pero sin embargo puedo elegir la ley del pais del hecho generador porque es mas favorable. Por tanto no 
es necesario coincidan foro y ius. 

-En realidad debería modificarse el criterio competencial, que es confuso y poco adecuado. 
il convient de privilégier la compétence du Tribunal du lieu du fait générateur 

-La réponse par oui ou par non est trop sommaire. En fait l´unité des compétences judiciaire et législative 
est assurée par la seconde branche de la réponse faite à la question 3, si l´article 5-3 de Bruxelles 1 est lu 
sans tenir compte de la jurisprudence Fiona Shevill, en admettant donc la concentration du dommage... 

-La  respuesta  3  no  vale  para  la  competencia  judicial  internacional.  Los  criterios  de  Bruselas  I  no  son 
idóneos valen para trasladarlos a la determinación de la ley aplicable. 

-See  conclusions  of  the  Heidelberg  University  Study  (JLS/C4?2005/03)  para  214  re  the  Regulation  on 
Brussels  I  concerning  article  5.3.  In  our  view  the  Shevill  judgement  and  subsequent  jurisprudence 
challenges  press  freedom,  exposing  publishers  to  multiple  actions  according  to  any  law  in  the  world. 
Furthermore Shevill jurisprudence encourages forum shopping by the plaintiff which further damages press 
freedom. 

-Sí,  pues  homogeiniza  las  respuestas  en  ambos  planos  del  Derecho  internacional  privado  y  se  da  un 
margen de elección a la víctima del daño sin atentar contra la seguridad jurídica 

-Siempre  que  esa  jurisprudencia  se  modificase  en  lo  que  respecta  a  los  daños  diseminados  en  varios 
Estados, permitiendo acumular todas las demandas en el foro de la residencia de la víctima como lugar del 
principal daño. 

-Soweit kein Konflikt zu Ziff. 6. 

-Soweit kein Konflikt zu Ziffer 6 

-Soweit kein Konflikt zu Ziffer 6. 

-Soweit kein Konflikt zu Ziffer 6. 

-Soweit kein Konflikt zu Ziffer 6. 

-Soweit kein Konflikt zu Ziffer 6. 

-Tal  como  esta  formulada  esta  pregunta  puede  ser  interpretada  de  dos  modos  distintos.  Uno,  si  sería 
deseable que los criterios que han llevado al TJCE en el Asunto "Shevill c. Presse Alliance SA" ha declarar 
competentes tanto los tribunales del lugar del hecho generador ( lugar del establecimiento del editor de la 
publicación  difamatoria)  para  conocer  de  la  totalidad  del  perjuicio  causado  con  independencia  de  donde 
éste  se  haya  materializado  ,  como  los  tribunales  del  lugar  o  lugares  donde  se  hayan  manifestado  los 
daños para conocer unicamente de los daños producidos en su territorio , resultan extrapolables al ámbito 
del  Derecho  aplicable.  Otro,  si  sería  deseable  que  una  vez  elegido  el  tribunal  (  el  del  lugar  del  hecho 
generador o el del lugar de producción del daño directo) la ley aplicable fuese la ley del foro (ley material 
del tribunal elegido). Sea cual sea el sentido de la pregunta ninguna de estas dos posibilidaders me parece 
aceptable  .  Una  cosa  es  ofrecer  un  foro  alternativo  al  domicilio  del  demandado  en  aras  a  una  buena 
administración  de  justicia  (  competencia  de  los  tribunales  de  los  Estados  en  los  que  el  daño  se  ha 
manifestado) y otra distinta hacer depender la ley aplicable de la elección efectuada con la consiguiente 
aplicación distributiva deleyeslocalesdistintas. 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Comparative study on the situation in the 27 
Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex II 

12.  Directive  95/46/EC  was  issued  to  ease  freedom  of  movement  of  data  without 
decreasing  the  protection  of  personal  data  and  right  to  intimacy.  It  provides  for 
each  Member  State  to  ensure  to  incorporate  it  into  its  national  juridical  system. 
Under  Art.  4  of  the  Directive,  a  Member  State  will  apply  the  approved  law  for  its 
transposition when the legal address of the entity responsible for handling the data 
is  in  the  territory  of  such  Member  State.  Do  you  think  that  using  this  instrument 
would be enough to harmonise the level of protection in cases of alleged violations 
of  privacy  or  rights  relating  to  personality  performed  by  mass  media  in  a  cross-
border context? 

Yes      

47,1% 

No          

52,9% 

Free text comments to Q12

-Article 9 (Freedom of Expression) gives too much scope for differing interpretations of the proper balance 
between privacy and freedom of expression   

-Dear  Privacy  Study  Team,  I  regret  to  say  that  the  House  of  Lords  European  Union  Committee  cannot 
participate in this study. However you may be interested to know that the Committee produced a report on 
the 
2004 
http://www.publications.parliament.uk/pa/ld200304/ldselect/ldeucom/66/6602.htm  The  Committee  was 
broadly content with the Regulation as adopted in 2007, and has expressed pleasure that cases involving 
violations  of  privacy  were  among  those  excluded  from  the  scope  of  the  Regulation.  Yours  sincerely, 
ANDREW MAKOWER. Clerk to the EU Committee. House of Lords. London SW1A 0PW. 020 7219 5458 

proposal 

Rome 

in 

II 

-Eine Harmonisierung des materiellen Rechts halten wir nicht für zielführend. Siehe 1.  

-Es una buena técnica, aunque sería deseable que los estados tardaran menos tiempo en dar traslado de 
las directivas al derecho interno, ya que a veces transcurren años entre la promulgación de la directiva y 
su  traslado  al  derecho  interno.  Aunque  eso  no  quita  que  sea  una  herramienta  perfecta  para  lograr  la 
armonización.  

-Frage  so  unverständlich.  Auch  bei  etwaigen  Schranken  für  Presseveröffentlichungen  muss  das  o.  g. 
Recht anwendbar, d. h., Herkunftsland oder Hauptverbreitungs- bzw. -bestimmungsland.  

-No es lo mismo la protección de datos de carácter personal, en los que la infracción puede consistir en 
meramente almacenarlos o transferirlos a terceros,incluso aunque no se haga mal uso de ellos después, 
y en los que es fácil determinar de dónde y hacia dónde se han transmitido o dónde se han almacenado 
los datos, que un supuesto de alteración de la privacidad por la publicación de hechos o circunstancias 
particulares a través de medios de comunicación (en sentido amplio) con una difusión mayor, pero menos 
precisa.  

-No, it should be updated. See also directive from 2002 with regard to electronic processing of the data.  

-The Data Protection Directive is designed to fit into national legal systems that already have a developed 
background  privacy  law.  Each  of  the  three  United  Kingdom  jurisdictions  is  still  struggling  to  develop  the 
necessary case law. Legislation will not be put forward because legislators fear to upset the media. So the 
Directive is a limb without a body and incapable of bearing the strain  

-vgl. Frage 1.  

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Comparative study on the situation in the 27 
Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex II 

-Wenn das Recht am Ort der Niederlassung gilt, wird es kaum Harmonisierungen geben.  

-Aunque la respuesta depende de la efectividad en la aplicación de las transposiciones internas. 

-Como  se  ha  indicado  anteriormente,  por  la  incidencia  de  la  sociedad  de  la  información,  pueden 
producirse  daños  dentro  del  territorio  UE  y  el  propietario  del  servidor  encontrarse  fuera  de  territorio 
comunitario,  de  tal  forma  que  la  aplicación  de  esta  directiva  quedaría  excluída.  creo  que  el  criterio 
adecuado sería si el titular de los datos personales colculcados tiene su residencia en el territorio de ese 
Estado. Pero de este tema no soy "muy" conocedora. 

-Creo que, además, debe completarse con otras medidas armonizadoras que garanticen una protección 
comunitaria. 

-En absoluto: tales derechos son de orden constitucional en numerosos Estados miembros, por los que 
cualquier  regulación  comunitaria  corre  el  grave  riesgo  de  suscitar  tremendos  conflictos  entre 
ordenamientos 

-En el estado actual de la construcción europea en este ámbito es la respuesta posible 

-Entiendo que la solución de la Directiva 95/46 está pensada en términos del control efectivo territorial del 
EM, más allá de los meros aspectos de derecho privado.  

-Harmonisierung nur durch einheitliche EU-Gesetzgebung 

-La armonización del nivel de protección en los supuestos de atentados transfronterizos a los derechos de 
la personalidad a través de una Directiva comunitaria permitiría aplicar la ley de origen ( residencia de la 
persona  responsable  de  la  publicación  o  emisisón)  y  facilitaría  de  este  modo  la  libre  circulación  sin 
menoscabo del derecho de la intimidad siempre, claro está, que el resposable estuviera establecido en un 
Estado miembro de la UE.  

-La directiva deja demasiado espacio a los sistemas estatales. 

-Ma réponse négative est de pure précaution et elle repose surtout sur l’insuffisance de ma connaissance 
de la directive 

-Yes,  in  principle,  in  what  concerns  the  applicable  law  to  the  processing  of  personal  data.  However,  we 
would  like  to  raise  your  attention  to  the  following  points:-  Directive  95/46/EC  does  not  harmonize  civil 
liability aspects of a case such as those described in Article 15 of Rome II; - Article 9 of Directive 95/46/EC 
allows  wide  discrepancies  in  implementation,  if  it  comes  to  "privacy  in  the  media",  which  implies  that  the 
need for harmonisation of the level of protection in the area mainly covered by the questionnaire may be 
higher than in other areas of data protection. Please note that the language used in Article 4.1(a) of the  
Directive  is  "establishment  of  the  controller"  and  not  "legal  address  of  the  responsible  person"  as  it  is 
mentioned in the questionnaire. Apart from that, it has to be noted that Article 4.1(c) of Directive 95/46/EC 
is also relevant for data protection cases with an international element in the field of private law. Therefore, 
it is an aspect that has to be explored in the context of the present study. 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Comparative study on the situation in the 27 
Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex II 

EXTENDED QUESTIONNAIRE  (41 answers) 

SPECIAL CUESTION (Q13 to Q16) 

Please give your opinion on the following options, as possible future unified rules on the law 
applicable to violations of privacy or rights relating to personality, in a cross-border context, 
performed by mass media: 

Q13. Conflict-of-law rule No. 1: 

“1.  The  law  applicable  to  non-contractual  obligations  arising  out  of  violations  of  privacy  and  rights 
relating  to  personality  is  the  law  from  the  country  in  which  the  damage  occurs  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 occur. 
2. However, where the person claimed to be liable and the person sustaining damage both have their 
habitual  residence  in  the  same  country  at  the  time  when  the  damage  occurs,  the  law  of  that  country 
shall apply. 
3. Where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely 
connected with a country other than that indicated in paragraphs 1 or 2, the law of that other country 
shall  apply.  A  manifestly  closer  connection  with  a  particular  country  may  be  deemed  to  exist  having 
regard to factors such as the country to which a publication or broadcast is principally directed or the 
language of the publication or broadcast or sales or audience size in a given country as a proportion of 
total sales or audience size or a combination of these factors.” 

TOTAL  

Very appropriate  

Appropriate  

Acceptable 

Not appropriate 

 Press 
Associations (14) 

Rest of 
professions 

Not 
appropriate 

Very appropriate  

Appropriate  

Acceptable 

Not appropriate 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Comparative study on the situation in the 27 
Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex II 

Free text comments to Q13

-Dado que en los atentados transfronterizos a los derechos de la personalidad el responsable y la victima 
suelen residir en distintos Estados y que con frecuencia el daño suele manifestarse en una pluralidad de 
Estados, la "clausula de excepción" prevista en el párraf. 3 pasaría a ser con frecuencia la regla general, 
quedando en manos del autor del daño la posibilidad de elegir el destino principal de la publicación y , con 
ello, el derecho aplicable.  

-En el primer párrafo sería preferible dar a la víctima demandante la opción de elegir entre el ordenamiento 
del país de la residencia del editor o el del lugar de difusión (daño directo) 

-Lo transcrito es en lo sustancial la norma general del Reglamento Roma II: para eso basta no excluir de 
su ámbito de aplicación material la difamación y que quede sometida a dicha regla general. 

-Me parece la opción más completa, pero creo que en este caso, en el apartado 1º, deberían regularse de 
forma detallada los supuestos de plurilocalización de daños para tratar de evitar la aplicación simultánea 
de múltiples leyes recurriendo a la noción de "elementos más significativos" examinada en la pregunta nº 6 
de  este  cuestionario.  A  ello  cabría  añadir  las  precisiones  previstas  en  el  apartado  2º  de  la  norma  de 
conflicto 3 aquí propuesta. 

-Me  recuerda  a  Roma  II.  La  determinación  del  locus  damni  como  criterio  localizador  del  ordenamiento 
jurídico aplicable es válida pero al tratarse por lo general de ilícitos plurilocalizados, el resultado siempre 
va ser el mismo= muchos locus damni, muchas leyes aplicables (tanta, como lugares en los que se haya 
producido daño). No hablamos de los daños indirectos. Teoría del mosaico, si litigamos en el fuero locus 
delicti/  o  foro  general  domicilio  demandado.  NO  habría  problema  si  litigamos  en  fuero  locus  damni 
(aplicaría  su  lex  fori).  Sin  concordar  competencia  judicial  internacional,  dificil  decidir.  hecho  en  falta 
referencia a sector Internet de la norma de conflicto 3. Creo que de todas ésta es la mejor opción.  

-Sobra el apartado 2. Ver respuesta 4. 

-Zu ungenau, unbestimmt

 
 
 
 
 
 
 
 
 
 
 
 
 
Comparative study on the situation in the 27 
Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex II 

Conflict-of-law rule No. 2: 

“1. As regards the law applicable to a non-contractual obligation arising out of a violation of privacy or 
rights  relating  to  the  personality,  the  law  of  the  country  in  which  the  most  significant  element  or 
elements of the loss or damage occur or are likely to occur shall be applicable. 

2.  Where  it  is  clear  from  all  the  circumstances  of  the  case  that  the  tort/delict  has  manifestly  closer 
connection  with  a  country  different  from  the  one  of  paragraph  1,  the  law  of  this  other  country  shall 
apply. A manifestly closer connection with a particular country may be deemed to exist having regard to 
factors such as the country to which a publication or broadcast is principally directed or the language of 
the publication or broadcast or sales or audience size in a given country as a proportion of total sales or 
audience size or a combination of these factors.” 

TOTAL  

Very appropriate  

Appropriate  

Acceptable 

Not appropriate 

Press 
Associations 

Rest of 
professions 

Acceptable 

Not 
appropriate 

Very appropriate  

Appropriate  

Acceptable 

Not appropriate 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
Comparative study on the situation in the 27 
Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex II 

Free text comments to Q14

-¿Como  se  sabe,  antes  de  acudir  al  Juzgado  y  probarlo,  el  país  donde  se  producen  el  elemento  o  los 
elementos  más  significativos  del  daño?  Falta  seguridad  jurídica.  Es  flexible  pero  no  permite  concretar  a 
priori la ley aplicable por las partes. 

-Altamente inseguro 

-Concuerda con respuesta 3 y siguientes. Sin embargo, no es totalmente adecuada en la medida de que 
es muy poco claro el alcance y la función de la excepción del párrafo 2 a una regla flexible como la del 
párrafo 1.  

-De nuevo se ignora la professio iuris por parte de la víctima demandante. 

-Dificultad  en  definir  cúales  son  los  elementos  más  significativos  del  daño.  El  caracter  "abierto"  de  esta 
norma  genera  inseguridad  ya  que  es  dificil  preveer  cual  será  le  ley  que  el  juez  aplicará  en  cada  caso. 
Respecto a la cláusula de excepción del parrafo 2 vis la critica a la norma de conflicto n. 1 

-En esta norma el apartado 2 sobra, nunca va a existir una vinculación más estrecha si la regla general se 
reconduce a esa idea. 

-Zu ungenau, unbestimmt

 
 
 
 
 
 
 
 
 
 
 
 
 
Comparative study on the situation in the 27 
Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex II 

Conflict-of-law rule No. 3: 

“1. As regards the law applicable to a non-contractual obligation arising out of a violation of privacy or 
rights  relating  to  the  personality,  the  law  of  the  country  in  which  the  most  significant  element  or 
elements of the loss or damage occur or are likely to occur shall be applicable.  

2. Where the violation is caused by the publication of printed matter or by a broadcast, the country in 
which  the  most  significant  element  or  elements  of  the  damage  occur  or  are  likely  to  occur  shall  be 
deemed to be the country to which the publication or broadcasting service is principally directed or, if 
this is not apparent, the country in which editorial control is exercised, and that country's law shall be 
applicable.  The  country  to  which  the  publication  or  broadcast  is  directed  shall  be  determined  in 
particular by the language of the publication or broadcast or by sales or audience size in a given country 
as a proportion of total sales or audience size or by a combination of those factors. This provision shall 
the  Internet  and  other  electronic  networks.”
apply  mutatis  mutandis 

to  publications  via 

TOTAL  

Adecuado 

Regular 
Appropriate  

Inadecuado 

Acceptable 

Not appropriate 

Press 
Associations 

Rest of 
professions 

Appropriate  

Acceptable 

Not appropriate 

Appropriate  

Acceptable 

Not appropriate 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Comparative study on the situation in the 27 
Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex II 

Free text comments to Q15

-Además de inseguro, innecesariamente desequilibrado a favor del editor-difusor 

-During the negotiation of the Rome II Regulation we argued that the only basis upon which the EU could 
intervene was on internal market grounds, and that the only rule that could ever be compatible with editorial 
freedom  would  be  one  which  was  consistent  with  internal  market  norms.  On  this  basis  rule  no  3  is 
acceptable as a compromise. Note that in 2002 EC Media and Culture Commissioner, Viviane Reding, said 
that the EU has “no independent mandate to shape the area of the media. Instead, the EU’s legal bases 
are ‘horizontal’ ... designed to achieve the general objectives of the Community, especially the completion 
of the internal market”.  

-El apartado segundo me parece excesivamente largo y complejo para el aplicador. 

-El mismo argumento que la anterior, pero me prece adecuada la especificación para Internet.  

-Entiendo que hace hincapié en el hecho causante del daño, no en el resultado. 

-Las mismas criticas que las formuladas a la norma de conflicto 3  

-Se trata de una solución clásica que, si bien puede ser mejorada, aporta seguridad jurídica

 
 
 
 
 
 
 
 
 
 
 
 
 
 
Comparative study on the situation in the 27 
Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex II 

Conflict-of-law rule No. 4: 

“The law applicable to non-contractual obligations arising out of violations of privacy or rights 
relating to personality is the law of the country of the court that has knowledge of the conflict 
(lex fori).” 

TOTAL  

Very Appropriate  

Acceptable 

Not appropriate 

Press 
Associations 

Rest of 
professions 

Not 

appropriate 

Very Appropriate  

Acceptable 

Not appropriate 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Comparative study on the situation in the 27 
Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex II 

Free text comments to Q16

-Dadas las reglas de competencia judicial en la materia, permite al demandante elegir el derecho que le 
resulte más favorable 

-Dadas las vigentes reglas de Bruselas I, es incongruente con respuesta 3. 

-Debería ser, todo lo más, la regla de cierre de la norma de conflicto 

-Esta peca de lo contrario: excesivamente simple. 

-Salvo que se modifique la interpretación de los foros en esta materia en la jurisprudencia TJCE. 

-Se  echa  en  falta  una  norma  que  contemple  la  elección  por  la  victima.  Una  de  las  preguntas  es 
precisamente esa, pero luego no hay ejemplo ninguno de esa opción. 

-Siempre  y  cuando  se  haya  realizado  una  modificación  uniforme  en  UE  en  el  sector  de  competencia 
judicial  internacional  en  esta  materia  (en  su  caso,  mediante  modificación  de  R44/2001)  que  permita 
concretar un fuero adecuado para conocer del litigio y aplicar su lex fori. Sino es así, de forma aislada, solo 
como  norma  de  conflicto  son  correlativa  modificación  de  los  fueros  de  competencia,  resulta  del  todo 
inadecuada. Por eso no puedo señalar una en concreto.  

-Teniendo  en  cuenta  los  criterios  de  competencia  judicial  del  Reglamento  44/2001(  Bruselas  I)  y  la 
jurisprudencia "Fiona Shevill " a la que ya me he referido en la pregunta 11, la aplicación de la lex fori , 
fomenta el "forum shopping" y la aplicación distributiva de leyes distintas 
( tantas como Estados donde se manifiesta el daño) cuando el actor opta por acudir a los tribunales del 
lugar del daño en vez de a los tribunales del lugar del hecho generador/domicilio del demandado 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
Comparative study on the situation in the 27 
Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex III 

COMPARATIVE STUDY ON THE 
SITUATION IN THE 27 MEMBER STATES 
AS REGARDS THE LAW APPLICABLE TO 
NON-CONTRACTUAL OBLIGATIONS 
ARISING OUT OF VIOLATIONS OF 
PRIVACY AND RIGHTS RELATING TO 
PERSONALITY 

ANNEX III – EU 27 National Reports 

Customer: 

European Commission 

Directorate General Justice and Home Affairs 

Directorate C: Civil Justice, Rights and Citizenship 

Date: 

November 2008 

Our Reference: 

Privacy Study. National Reports. 

1 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
Comparative study on the situation in the 27 
Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex III 

Contents 

AUSTRIA..................................................................................................................................................... 3 

BELGIUM ................................................................................................................................................... 8 

BULGARIA ............................................................................................................................................... 19 

CYPRUS .................................................................................................................................................... 23 

CZECH REPUBLIC................................................................................................................................. 28 

DENMARK................................................................................................................................................ 31 

ESTONIA................................................................................................................................................... 35 

FINLAND .................................................................................................................................................. 42 

FRANCE .................................................................................................................................................... 44 

GERMANY................................................................................................................................................ 61 

GREECE.................................................................................................................................................... 71 

HUNGARY ................................................................................................................................................ 75 

IRELAND .................................................................................................................................................. 82 

ITALY ........................................................................................................................................................ 87 

LATVIA ..................................................................................................................................................... 91 

LITHUANIA.............................................................................................................................................. 96 

LUXEMBOURG ..................................................................................................................................... 100 

MALTA.................................................................................................................................................... 105 

NETHERLANDS .................................................................................................................................... 111 

POLAND.................................................................................................................................................. 115 

PORTUGAL  ........................................................................................................................................... 121 

ROMANIA............................................................................................................................................... 125 

SLOVAKIA ............................................................................................................................................. 129 

SLOVENIA.............................................................................................................................................. 132 

SPAIN....................................................................................................................................................... 135 

SWEDEN ................................................................................................................................................. 141 

UNITED KINGDOM.............................................................................................................................. 145 

2 

 
 
 
 
 
Comparative study on the situation in the 27 
Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex III 

AUSTRIA1 

1. National rules 

In Austria, personal privacy personality rights (“Persönlichkeitsrechte”) are a very wide concept 
and materialised in different ways: both civil law and public law including criminal law make 
their  specific  contributions.  It  also  includes  the  right  to  physical  integrity  and  sexual  self-
determination  but  we  focussed  our  description  on  personality  rights  typically  infringed  by 
communication  media.  We  further  limited  our  description  to  civil  rights,  although  many 
personality rights have a counterpart in criminal law (e.g. defamation)  

General clause:  

Article  16  of  the  Austrian  Civil  Code  (ABGB)  dating  from  1811  provides  that  every  human 
being has “natural rights” by the fact of its birth and is therefore considered as a person. Today, 
this  provision  is  seen  as  general  norm  protecting  human  personality,  dignity  and  identity  and 
therefore  interpreted  by  case  law  as  general  personality  right  and  blanket  clause  for  the 
protection of privacy and personality rights in case of non-existence of any other specific law. It 
is therefore a very important legal norm in this respect.  

Right to protect privacy: 

Article 1328a ABGB provides that everyone who infringes the privacy of another person by not 
respecting  diligence  duties  has  to  pay  compensation  and  extra  compensation  for  immaterial 
damage. This term is not applicable if the infringement is caused by communication media as 
these cases are regulated by the Austrian Communication Media Act (MedienG) being the lex 
specialis. 

Article  6  Austrian  Communication  Media  Act  (MedienG)  gives  a  persons  defamed,  insulted, 
ridiculed or libelled by communication media the right to compensation for the offense suffered, 
except if the infringement occurred in/concerns  debates in the national or local parliaments  the 
content of the publication is true or the interest of the public in receiving information prevails 
(only  in  case  of  defamation)  live  broadcasting  on  TV  without  infringing  due  diligence    the 
content of a web page without infringing due diligence  is a true statement of a third party and 
the interest of the public in receiving information prevails 

If the infringement affects private life, the right to compensation is only excluded if the content 
of the publication is true or if it was broadcasted on TV. 

Article 7 MedienG protects strictly personal matters of private life. If a communication media 
exhibits or discusses strictly personal matters of private life, the person concerned has a right to 
compensation against this communication media. This is excluded if the infringement occurred 
in/concerns 

•  debates in the national or local parliaments 

1MAG.  KONRAD  LENNEIS  and  UBC  (University  of  the  Basque  Country).    Special  attention  was  paid  to  the 
document on libel and the press and media prepared by the Secretariat of the CDMC [Spanish contemporary music 
broadcasting centre] for the Council of Europe. CDMC (2006)007. 

3 

 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
 
Comparative study on the situation in the 27 
Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex III 

• 
• 

• 
• 

the content of the publication is true and related to public life 
the  communication  media  could  reasonably  assume  that  the  person  would  agree  with 
the publication 
live broadcasting on TV without infringing due diligence  
the content of a web page without infringing due diligence  

Protection of rights in court proceedings 

Art  7a  MedienG  protects  against  the  disclosure  of  the  personal  identity  of  crime  victims  and 
suspects of crimes, as far as the public interest in the disclosure of the personal identity is not 
prevailing. 

Art 7b MedienG protects the presumption of innocence by providing that media are not allowed 
to describe a person as the author of the crime but only as a suspect as far as there is no binding 
court decision.  

Art  7c  MedienG  protects  against  the  disclosure  of  the  content  of  images,  records  or  notes  in 
relation to criminal proceedings, which where not used in the trial. 

Media cases 

Article  51  of  the  Austrian  media  act  provides  that  infringements  of  article  6  and  7  (see  the 
description below) are applicable on foreign media enterprises if  

• 
• 

• 

the information was published or broadcasted or could be received in Austria  
the person whose rights have been infringed is Austrian or has residence in Austria or 
important interest of Austria have been infringed. 
the  following  rights  have  been  infringed:  honour,  economic  reputation,  privacy  and 
secrecy, sexual integrity and sexual self-determination, public security and peace. 

Therefore, if  for instance a British media publishes information on the internet, infringing the 
privacy  of  an  Austrian,  the  Austrian  media  act  applies.  This  also  applies  if  the  information  is 
published  in  a  British  magazine,  which  is  also  disseminated  in  Austria,  or  if  the  information 
infringes Austrian interests heavily. 

Defamation 

Both civil and criminal liability are provided for by the law.  
Defense. Under Article 29 of the Media Act (1981), the strict burden of proof of the truth (in 
criminal cases) has been relieved; under the 1981 Media Act, journalists are not guilty of libel if 
they  are  able  to  establish  both  that  they  observed  journalistic  care  and  that  there  was  a  major 
public interest in the publication.  

Public  Figures.  The  relevant  provisions  of  the  Criminal  Law  (Article  111  of  the  Penal  Code) 
and  of  the  civil  law  (Article  1330  of  the  Civil  Code)  apply  to  value  judgements  as  well  as  to 
statements of fact. Following decisions of the European Court of Human Rights, the status of 
the insulted person is considered and the courts have shown readiness to require politicians to 
accept  a  greater  degree  of  criticism  and  scrutiny  regarding  matters,  which  may  affect  their 
qualifications for public service than private persons.  

Invasion of privacy. The 1981 Media Act introduced a separate cause of action for invasion of 
privacy:  Article  7  provides  that  a  media  organ  is  obliged  to  grant  compensation  if  matters 
concerning the private life of a person are presented in such a way as to degrade him or her in 
public  opinion.  Publication  is  permitted  in  any  case  where  there  is  a  "connection  with  public 
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Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex III 

life". However, little use has so far been made of Article 7. It appears that reporting on matters 
of legitimate public interest is not inhibited by this provision  

Article  78  of  the  Copyright  Act  forbids  the  publication  of  pictures  which  violate  legitimate 
interests of the person shown. A few courts have found that there was no violation in case of 
pictures of "public figures".  

2. Applicable law   

Austrian international private Law is codified. The basic legislation in this context is the law of 
15  July  1978  on  international  private  law  (IPRG,  published  in  the  Austrian  Official  Gazette, 
BGBl. no 304/1978). 

The point of connection between extra-contractual claims for damages and injuries is found in 
articles 35 and 48 IPRG.  This type of dispute is governed by the law elected for by the parties 
involved or, if no such election is made, by the law of the state in which the act giving rise to 
the  injury  was  performed.  Notwithstanding,  in  the  case  where  both  parties  have  a  closer  link 
with the law of the other member state, the law of that state prevails, always provided that this is 
the same for both.  

This  conflict  of  laws  rule  determines  the  law  applicable  in  matters  such  as  determining  if  a 
liability for compensation exists, who has to fund the payment of damages and what the amount 
of  damages  should  be.  Similarly,  it  addresses  the  matter  of  joint  liability  and  of  the  right  of 
direct action by the injured party against the insurer, and also the question of the time limit on 
claims for injury and damages.  

There  is  no  specific  rule  to  determine  the  law  applicable  to  liability  for  infringements  of 
individual privacy by the media and press.  

3. Transposition of the Directive  

Directive  95/46/CE  implemented  by  Federal  Act  Concerning  the  Protection  of  Personal  Data 
(Datenschutzgesetz 2000 - DSG 2000). It respects the European Directive.  

Sect. 3 (1) The provisions of this Federal Act [Bundesgesetz] shall be 
applied to the use of personal data in Austria. This Federal Act shall 
also be applied to the use of data [Verwendung von Daten] outside of 
Austria,  insofar  as  the  data  is  used  in  other  Member  States  of  the 
European  Union  for  purposes  of  a  main  establishment  or  branch 
establishment  (sect. 4  sub-para. 15)  in  Austria  of  the  controller 
[Auftraggeber] (sect. 4 sub-para. 4). 

(2) Deviating from para. 1 the law of the state where the controller has 
its seat applies, when a controller of the private sector (sect. 5 para. 3), 
whose  seat  is  in  another  Member  State  of  the  European  Union,  uses 
personal data in Austria for a purpose that cannot be ascribed to any of 
the controller's establishments in Austria. 

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Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex III 

(3) Furthermore, this law shall not be applied insofar as data are only 
transmitted through Austrian territory. 

(4) Legal provisions deviating form paras. 1 to 3 shall be permissible 
only in matters not subject to the jurisdiction of the European Union. 

It respects the European Directive. 

4. Judicial Competence 

Competent Courts for Media/Press Litigation: 

The right of compensation according to Art 6-7c and 41 MedienG can be claimed in criminal 
proceedings before the Regional Courts (Landesgericht) as Criminal Courts where the owner of 
the  communication  media  is  accused.  If  there  is  no  pending  court  proceeding,  the  infringed 
person may apply for a specific media law compensation proceeding at the Regional Court of 
the  place  of  the  registered  office  of  the  owner  of  the  communication  media.  If  the  registered 
office is located outside Austria, the local competence is determined by the place from which 
the content was published, broadcasted or could be received. If there is no connecting factor like 
the  mentioned  before,  the  Regional  Court  of  that  place  is  competent,  where  the  content  was 
published, broadcasted or could be received in Austria. 

Disputes regarding Art 1330 ABGB (defamation) and other “personality rights” are handled by 
the Commercial Court (Handelsgericht) in Vienna, and by the Regional Courts (Landesgerichte) 
as  Commercial  Courts  outside  Vienna  if  the  defamation  concerns  the  publication  in  a 
commercial media and if the amount in disputes exceeds 10.000 Euro, otherwise district courts 
are  competent,  in  Vienna  the  District  Court  for  Commercial  Matters  (Bezirksgericht  für 
Handelssachen). For copyright matters always Commercial Courts are competent. 

5. Case law  

Supreme Court: judgement of 7th of November 2007, 6 Ob 57/06 k - Ernst Happel/postal 
stamp 

The Supreme Court decided that the use of images for postal stamps (here with the image of the 
deceased famous Austrian soccer trainer Ernst Happel) does not affect the personality rights of 
the  pictured  person.  Art.  75  UrhG  protects  imaginary  and  physical  interest.  The  protection  of 
physical  rights  only  applies  if  the  infringement  of  imaginary  interests  affects  also  physical 
interests. The personality rights of the deceased are not hereditary. The right of honour can be 
protected after death as well as a so called post-mortal personality right which can also be put in 
claim by the relatives but is not been infringed by showing a picture on a stamp. 

Supreme Court: judgement of 28th of March 2007, 6 Ob 6/06k - mock of a video camera 

According to Art. 16 ABGB and in consideration of the parties interests, the court decided that 
even if a video camera installed on the balcony of a private house and directed to the neighbour 
is  a  profound  infringement  of  personal  privacy  of  the  neighbour,  even  if  the  camera  is  just  a 
mock . 

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Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex III 

Higher Regional Court of Vienna: judgement of 5th May 2008 – Natascha Kampusch “love 
pictures” 

The  court  allowed  the  publication  of  pictures  showing  Natascha  Kampusch  dancing  with  a 
young man in a well known Vienna dancing club by a local newspaper. Ms. Kampusch’s right 
to protection her privacy is not infringed if the picture shows a situation taking place in a public 
area. Therefore, the court marks a clear separation between public appearance and private life. 

Commercial  Court  of  Vienna,  judgement  of  2nd  April  2007,  18  Cg  197/06v  –  Fiona 
Swarovski/Karl Heinz Grasser 

A  local  newspaper  wrote  that  Ms.  Swarovski  lost  a  child  she  had  from  Mr.  Grasser  and  was 
therefore sued by this couple. The Commercial Court found that if a person takes his/her private 
life  voluntarily  into  the  public  and  is  giving  interviews  about  it,  he/she  can  not  claim  an 
infringement of his/her right to protection of his/her private life. When considering the parties’ 
interests, the interest of the public in receiving information prevails.  

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Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex III 

BELGIUM2 

1. Autonomous legislation  

In Belgium the right of every person to a private life is recognised. The importance given by the 
Belgians to this right is reflected in its inclusion as a fundamental right in Article 22 of the 1994 
Belgian  Constitution.  The  Constitution  establishes  that  whenever  personal  data  concerning  a 
person are processed, said person shall have the right to expect and demand that all precautions 
be taken to protect their private life.  

a.  Loi  du  8  décembre  1992  relative  à  la  protection  de  la  vie  privée  à  l'égard  des 

traitements de données à caractère personnel (loi vie privée). 

 The  Act  of  8  December  1992  (Private  Life  Act)  protects  citizens  against  any  misuse  of  their 
personal data. It defines not only the rights and duties of the person referred to by the data but 
also those of the controller of the processing. 

The private life act creates an independent inspection body, the Commission for the Protection 
of Privacy (or Privacy Commission). This Commission ensures that personal data is used in a 
way that respects the private life act, its spirit and the precautions imposed to protect citizens' 
privacy. 

 Since its enactment, major amendments have been introduced to the act of 8 December 
1992. 

The first was the result of adoption of EU Directive 95/46/EC intended to harmonise the 
rules applied in different European Union member states on the protection of personal 
data. Pursuant to Belgium’s obligation to transpose this Directive into national law, the 
act of 8 December 1992 was amended by the act of 11 December 1998. 

Another important amendment was made to the privacy act by the Belgian legislator in 
response to the rapid development of the "Information Society”. The Commission had 
received  several  demands,  not  only  from  the  public  but  also  from  public  authorities, 
asking  it  to  pronounce  on  difficult  questions  related  to  specific  issues  that  required 
specific  expertise.  The  act  of  26  February  2003  amended  the  status,  composition  and 
powers of the Commission, creating several special committees. 

b.  Arrêté  royal  du  13  février  2001  portant  exécution  de  la  loi  du  8  décembre 
1992  relative  à  la  protection  de  la  vie  privée  à  l'égard  des  traitements  de 
données à caractère personnel 

On 11 December 1998, profound alteration were made to the private life act in order to 
ensure transposition of European Directive 95/46/EC. It immediately became necessary 
to adopt a new executing decision: L'arrêté royal du 13 février 2001. This Decision sets 
out: 

•  The  conditions  under  which  it  is  permitted  to  process  personal  data  for 

historical, statistical or scientific purposes. 

•  The conditions to be respected in processing data of a “sensitive” nature. 

2 UBC with the collaboration of Marinus VROMANS 

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contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex III 

•  The  manner  in  which  a  person  who  has  been  the  subject  of  an  action  by  a 
personal  data  database  can  exercises  their  rights  (right  to  search,  right  to 
have the data rectified or removed) 

•  The systems for declaring the automated processing of personal data  

c.  Arrêté  royal  du  17  décembre  2003  fixant  les  modalités  relatives  à  la 
composition et au fonctionnement de certains comités sectoriels institués au sein 
de la Commission de la protection de la vie privée 

This Decision establishes the workings of the sectoral committees. It specifies who the experts 
are and when they must be called in accordance with the procedures on which they must work. 

d. Loi du 8 août 1983 organisant un Registre national des personnes physiques 

This act determines : 

•  What information is recorded in the National Register and the means of conserving and 

updating it 

•  Who is responsible for managing the national register 
•  What rules are in place to apply the use of the identification number allocated to each 

citizen ( “National Register Number") 

•  That  the  Sectoral  Committee  of  the  National  Register  is  the  only  power  to  which 
applications  may  be  made  for  access  to  the  information  recorded  in  the  National 
Register  

•  That it can make use of the National Register number. 
•  The  composition,  mission  and  powers  of  the  Sectoral  Committee  of  the  National 

Register  

d. Loi  du 15 janvier 1990  relative à l'institution  et à l'organisation d'une Banque-
Carrefour de la Sécurité Sociale 

This act established a "Banque-Carrefour" and a sectoral committee of Social Security 
(from 2007, the Sectoral Committee of Social Security and Health) and determined its 
composition, workings and powers. 

The Banque-Carrefour organises and generates an electronic tool intended to facilitate 
exchange of information among social security agencies and the National Register. It is 
not a databank:  the  Banque-Carrefour does not  retain any of the  information; rather it 
ensures  electronic  transmission  between  the  different  organisms  within  the  social 
security network  

e.  Loi  du  16  janvier  2003  portant  création  d'une  Banque-Carrefour  des 
Entrepris  es,  modernisation  du  registre  de  commerce,  création  de  guichets-
entreprises agréés et portant diverses dispositions 

This law creates a Banque-Carrefour of companies and establishes the working thereof. 
It  is  a  register  of  all  the  data  of  the  companies  contained  in  the  National  Register  of 
natural persons, the trade register, the TVA and the ONSS. The services of the TVA, the 
National Office of Social Security, the Justice and the company windows are connected 
via the Banque-Carrefour des Entreprises. 

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Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex III 

f. Loi du 10 août 2005 instituant le système d'information Phenix 

This  act  establishes  a  system  called  "Phenix"  to  allow  the  internal  and  external 
communication necessary for proper working of justice: 

•  The administration and filing of legal briefs 

•  The establishment of a national role 

•  The creation of a database of jurisprudence  

•  The  establishment  of  statistics  and  the  setting  up  of  a  help  mechanism  for 

management and administration of legal institutions. 

g. Information on defamation  

Criminal Code  

Book II Chapter V Section VIII of the Criminal Code deals with offences against peoples' moral 
integrity.  

In the Criminal Code, offences against honour are classified into: calumny and defamation (Art. 
443, 444, 446, 447, 450 and 451), divulgement (Art. 449), false reports to the authority and false 
accusations  against  a  subordinate  (Art.  445)  and  slander  [injuria]  -  crime  (Art.  448).  To 
complete the provisions of Articles 443 - 453, Article 561 No. 7 of the Criminal Code punishes 
some very different forms of slander not contained therein.  

Articles  275  and  of  the  Criminal  Code  refer  more  specifically  to  offences  against  ministers, 
members of the legislative chambers and guardians of authority or public order. 

Article 447 of the Criminal Code, which includes the false accusations against public persons, 
has been completed in order to reinforce the protection of people subject to such allegations. 

 Other provisions 

In  addition  to  the  aforesaid  provisions,  Belgian  legislation  also  contains  other  texts  to  punish 
injurious  or  offensive  acts.  These  refer  more  particularly  to  defamation  [injurias]  or  offences 
against  certain  people  due  to  their  rank  or  their  functions.  The  Act  of  6  April  1847  deals 
particularly  with  offences  against  the  King  and  members  of  the  royal  family;  the  Act  of  20 
December 1852 with offences against foreign heads of government; the Act of 12 March 1858 
with offences against diplomatic agents; the Royal Order of 19 July 1926, completed by Royal 
Order No. 36 of 3 December 1934, concerning attacks on the credit of the state or the stability 
of the currency, the Act of 10 January 1955 is concerned with the divulgement of inventions or 
manufacturing  secrets  that  are  of  interest  to  the  defence  of  the  territory  or  the  security  of  the 
state 

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Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex III 

2. Legislation applying to non-contractual obligations 
arising out of damages against personality rights 

A. General rule 

Article 99 of the Belgian DIPp act of 16 July 20043establishes the law applicable to the 
obligations deriving from a harmful event which in general terms shall be governed: 

1.  by  the  law  of  the  state  in  whose  territory  the  person  responsible  and  the  person 
wronged have their normal place of residence at the time when the circumstances from 
which the damage arises occur. 

2. In the absence of a residence in the state as the territory in which the harmful event 
occurred or threatened to occur in its entirety. 

3. In all other cases by the law of the state with which the obligation in question has the 
closest associations.  

B. Special rule 

The Belgian Code of International Private Law introduces a special choice of law rule 
for  cases  of  defamation  or  attacks  on  private  life  or  against  personality  rights  (Art. 
99.2.1). 

Art.  99,  Paragraph  2.1  refers  specifically  to  criminal  offences  against  privacy  and 
establishes  that  in  all  cases  the  obligation  derived  from  a  harmful  event  in  case  of 
defamation, attack against private life or against personality rights shall be governed by 
the law of the state in whose territory the operative event or the damage has occurred or 
has threatened to occur, at the plaintiff's choosing, except when the person responsible 
proves that he cannot prevent the damage occurring in that state. 

As we can see, this is a rule that offers the damaged party the possibility of choosing 
between  the  law  of  the  place  where  the  operative  event  has  occurred  and  the  place 
where the damage has occurred, either at present or in the future. This is an application 
of the concept of ubiquity which tends to favour the offended party. 

-In  the  context  of  the  press,  the  attack  made  requires  a  balance  of  interests  of  two 
fundamental rights, protection of private life and protection of freedom of speech. These 
cases  of  constitutional  order  may  involve  resorting  to  the  general  clauses  of  the 
exception of public order when the conditions are applied against a foreign law whose 
application would violate one of these two rights. Does the constitutional imperative of 
protection of press freedom justify the exclusion from the act of damages in favour of 
the place where the press article was produced?  

The place where the act causing the damage is harm will be the place where the written 
medium has been published or the place of the programme that has recounted the facts.  

3 Published in the Belgian Moniteur on 27 July 2004. Came into force on 1 Oct. 2004. 

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Member States as regards the law applicable to non-
contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex III 

-Normally the place where the damage occurs is the plaintiff's place of residence. 

However, the natural person or obligated legal institution may argue that they could not 
have foreseen that the damage was going to occur in a given territory. In this case, they 
can avoid application of the law of that country. In this case, only the place where the 
event giving rise to the damage has occurred may be taken into account. (Art. 99, Final 
Paragraph). 

The  provision  of  the  place  in  which  the  damage  occurred  depends  on  the  type  of 
dissemination  (whether  it  is  a  local  newspaper,  a  programme  broadcast  on  national  or 
global  satellite  channels).  The  language  used  will  also  need  to  be  considered  when 
determining the place where it may have occurred.  

The  same  guidelines  apply  to  the  Internet,  except  that  in  International  Private  Law  when 
remarks made about an act are communicated over the Internet it does not necessarily mean that 
the  damage  has  been  caused  worldwide,  and  that  therefore  the  foreseeable  place  is  the  whole 
world. It all depends on the readership expected to visit the website, the language used, etc. 

Jurisprudence 

• 
Bruxelles  27  April  2004,  Auteurs  &Media  (2005)  80.  Location  in  Belgium, 
place of publication of the photos, the operative event when the person harmed resides 
in France and the photos have been taken in France. 

3.  Transposition of Directive 95/46/EC 

• Belgian Private Life Act of 8 December 1992 

Firstly  the  Belgian  private  life  act  of  8  December  1992  (in  the  consolidated  version  , 
and therefore amended by the act of 11 December 1998 to adapt to Directive 95/46/EC) 
seeks to define a series of concepts that will help us to determine its scope. 

The first article, for example, defines the concepts involved in the protection of personal 
data and people’s private life. 

 Art.  1er.  §  1er.  Pour  l'application  de  la  présente  loi,  on  entend  par  “données  à  caractère  
personnel”  toute  information  concernant  une  personne  physique  identifiée  ou  identifiable, 
désignée  ci-après  “personne  concernée”;  est  réputée  identifiable  une  personne  qui  peut  être 
identifiée, directement ou indirectement, notamment par référence à un numéro d'identification ou 
à un ou plusieurs éléments spécifiques, propres à son identité physique,  physiologique, psychique, 
économique, culturelle ou sociale. 
§  2.  Par  “traitement”,  on  entend  toute  opération  ou  ensemble  d'opérations  effectuées  ou  non  à  
l'aide  de  procédés  automatisés  et  appliquées  à  des  données  à  caractère  personnel,  telles  que  la  
collecte,  l'enregistrement,  l'organisation,  la  conservation,  l'adaptation  ou  la  modification, 
l'extraction,  la  consultation,  l'utilisation,  la  communication  par  transmission,  diffusion  ou  toute 
autre forme de mise à disposition, le rapprochement ou l'interconnexion, ainsi que le verrouillage, 
l'effacement ou la destruction de données à caractère personnel. 
§  3.  Par  “fichier”,  on  entend  tout  ensemble  structuré  de  données  à  caractère  personnel 
accessibles selon des critères déterminés, que cet ensemble soit centralisé, décentralisé ou réparti 
de manière fonctionnelle ou géographique. 

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privacy and rights relating to personality. 
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§ 4. Par “responsable du traitement”, on entend la personne physique ou morale, l'association  de 
fait ou l'administration publique qui, seule ou conjointement avec d'autres, détermine les finalités 
et les moyens du traitement de données à caractère personnel. Lorsque les finalités et les moyens 
du  traitement  sont  déterminés  par  ou  en  vertu  d'une  loi,    d'un  décret  ou  d'une  ordonnance,  le 
responsable du traitement est la personne physique, la personne morale, l'association de fait ou 
l'administration publique désignée comme responsable du traitement par ou en vertu de cette loi, 
de ce décret ou de cette ordonnance. 
§  5.  Par  “sous-traitant”,  on  entend  la  personne  physique  ou  morale,  l'association  de  fait  ou 
l'administration  publique  qui  traite  des  données  à  caractère  personnel  pour  le  compte  du  
responsable  du  traitement  et  est  autre  que  la  personne  qui,  placée  sous  l'autorité  directe  du 
responsable du traitement, est habilitée à traiter les données. 
§  6.  Par  “tiers”,  on  entend  la  personne  physique,  la  personne  morale,  l'association  de  fait  ou 
l'administration publique, autre que la personne concernée, le responsable du traitement, le sous-
traitant  et  les  personnes  qui,  placées  sous  l'autorité  directe  du  responsable  du  traitement  ou  du 
sous-traitant, sont habilitées à traiter les données. 
§ 7. Par “destinataire”, on entend la personne physique, la personne morale, 'association de fait 
ou l'administration publique qui reçoit communication de données, qu'il s'agisse ou non d'un tiers; 
les  instances  administratives  ou  judiciaires  qui  sont  susceptibles  de  recevoir  communication  de 
données  dans  le  cadre  d'une  enquête  particulière  ne  sont  toutefois  pas  considérées  comme  des 
destinataires. 
8. Par “consentement de la personne concernée”, on entend toute manifestation de volonté, libre, 
spécifique et informée par laquelle la personne concernée ou son représentant légal accepte que 
des données à caractère personnel la concernant fassent l'objet d'un traitement. 

Classification:  

Art. 1; For the purposes of applying this act "personal data" shall mean any information 
relating to an identified or identifiable natural person. 

Scope:  Article  3  refers  to  the  scope  of  the  act.  Article  3  stipulates  the  exemptions 
provided in the act in the case of attacks produced via the media with the sole purpose 
of informing, which therefore come within the area of freedom of speech, either artistic 
or literary. 

Art.  3.  §  1er.  La  présente  loi  s'applique  à  tout  traitement  de  données  à  caractère  personnel  
automatisé en tout ou en partie, ainsi qu'à tout traitement non automatisé de données à caractère 
personnel contenues ou appelées à figurer dans un fichier. 
§ 2. La présente loi ne s'applique pas au traitement de données à caractère personnel effectué  par 
une personne physique pour l'exercice d'activités exclusivement personnelles ou domestiques. 
§ 3. a) Les articles 6, 7 et 8 ne s'appliquent pas aux traitements de données à caractère personnel 
effectués  aux  seules  fins  de  journalisme  ou  d'expression  artistique  ou  littéraire  lorsque  le 
traitement se rapporte à des données rendues manifestement publiques par la personne concernée 
ou sur des données qui sont en relation étroite avec le caractère public de la personne concernée 
ou du fait dans lequel elle est impliquée. 
b) L'article 9, § 1er, ne s'applique pas aux traitements de données à caractère personnel effectués 
aux  seules  fins  de  journalisme  ou  d'expression  artistique  ou  littéraire  lorsque  son  application 
compromettrait  la  collecte  des  données  auprès  de  la  personne  concernée.  L'article  9,  §  2,  ne 
s'applique  pas  aux  traitements  de  données  à  caractère  personnel  effectués  aux  seules  fins  de 
journalisme ou d'expression artistique ou littéraire lorsque son application aurait une ou plusieurs 
des conséquences suivantes: – son application compromettrait la collecte des données; 
– son application compromettrait une publication en projet; 
– son application fournirait des indications sur les sources d'information. 
c)  Les  articles  10  et  12  ne  s'appliquent  pas  aux  traitements  de  données  à  caractère  personnel 
effectués aux seules fins de journalisme ou d'expression artistique ou littéraire dans la mesure où 
leur  application  compromettrait  une  publication  en  projet  ou  fournirait  des  indications  sur  les 
sources d'information. 

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d) Les articles 17, § 3, 9° et 12°, § 4 et § 8, ainsi que les articles 18, 21 et 22 ne s'appliquent pas 
aux  traitements  de  données  à  caractère  personnel  effectués  aux  seules  fins  de  journalisme  ou 
d'expression artistique ou littéraire. 
§ 4. Les articles 6 à 10, 12, 14, 15, 17, 17bis, alinéa 1er, 18, 20 et 31, §§ 1er à 3, ne s'appliquent 
pas aux traitements de données à caractère personnel gérés par la Sûreté de l'Etat, par le Service 
général du renseignement et de la sécurité des forces armées, par les autorités visées aux articles 
15,  22ter  et  22quinquies  de  la  loi  du  11  décembre  1998  relative  à  la  classification  et  aux 
habilitations, attestations et avis de sécurité et l'organe de recours créé par la loi du 11 décembre 
1998 portant création d'un organe de recours en matière d'habilitations, d'attestations et d'avis de 
sécurité,  par  les  officiers  de  sécurité  et  par  le  Comité  permanent  de  contrôle  des  services  de 
renseignements et son Service d'enquêtes, ainsi que par l'Organe de coordination pour l'analyse 
de la menace lorsque ces traitements sont nécessaires à l'exercice de leurs missions. 

•  1.  This  act  applies  to  all  partially  or  wholly  automated  processing  of  personal 
data and to all non-automated processing of personal data contained or destined 
to be included in a file. 

2.  This  act  shall  not  apply  to  the  processing  of  personal  data  carried  out  by  a 
natural  person  in  the  exercise  of  activities  which  are  exclusively  personal  or 
domestic. 

3°.  a)  Articles  6,  7  and  8  shall  not  apply  to  the  processing  of  personal  data 
carried  out  solely  for  journalistic  purposes  or  the  purpose  of  artistic  or  literary 
expression in which the processing corresponds to manifestly public data offered 
by the person concerned or data that are closely related to the public character of 
the person concerned or in which same is involved. 

b)  Article  9. 1  does  not  apply  to  the  processing  of  personal  data  carried  out 
solely for journalistic purposes or the purpose of artistic or literary expression in 
which the application thereof would compromise the gathering of data about the 
person concerned. Article 9. 2 does not apply to the processing of personal data 
carried  out  solely  for  journalistic  purposes  or  the  purpose  of  artistic  or  literary 
expression  in  which  the  application  thereof  would  have  one  or  more  of  the 
following  consequences:  Its  application  would  compromise  the  project  of  a 
publication  or  its  application  would  reveal  indications  as  to  the  sources  of 
information 

c) Articles 10 and 12 do not apply to the processing of personal data carried out 
solely  for  journalistic  purposes  or  the  purpose  of  artistic  or  literary  expression 
insofar  as  its  application  would  compromise  a  publication  or  its  application 
would provide indications as to the sources of information 

d) Articles 17.3. 9 and 12; 4 and 8 and Articles 18, 21 and 22 shall not apply to 
the processing of personal data carried out solely for journalistic purposes or the 
purpose of artistic or literary expression.  

4. Articles 6 to 10, 12, 14, 15, 17, 17 bis, row 1 18, 20 and 31 and from 1 to 3, shall 
not apply to the processing of personal data generated by State Security and by the 
general information and security service of the Armed Forces…. 

5…. (Refers to public authorities, etc.) 

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Applicable law. Article 3 bis refers to the applicable law.  

Art. 3bis. La présente loi est applicable au traitement de données à caractère personnel  
1°  lorsque  le  traitement  est  effectué  dans  le  cadre  des  activités  réelles  et  effectives  d'un 
établissement fixe du responsable du traitement sur le territoire belge ou en un lieu où la loi belge 
s'applique en vertu du droit international public;  
2° lorsque le responsable du traitement n'est pas établi de manière permanente sur le territoire 
de  la  Communauté  européenne  et  recourt,  à  des  fins  de  traitement  de  données  à  caractère 
personnel, à des moyens automatisés ou non, situés sur le territoire belge, autres que ceux qui sont 
exclusivement utilisés à des fins de transit sur le territoire belge. 
Dans  les  cas  visés  à  l'alinéa  précédent,  2°,  le  responsable  du  traitement  doit  désigner  un 
représentant établi sur le territoire belge, sans préjudice d'actions qui pourraient être introduites 
contre le responsable du traitement lui-même. 

Art. 3 Bis. This act will apply to the processing of personal data: 

1.  When  the  processing  is  carried  out  in  the  context  of  the  activities  of  an 
establishment of the controller on Belgian territory or in a place where Belgian 
law applies by virtue of International Public Law. 

2.  When the controller is not permanently established on Community territory and, 
for purposes of processing personal data makes use of equipment, automated or 
otherwise,  situated  on  Belgian  territory,  or  others  used  only  for  purposes  of 
transit through the territory of the Community. 

In the circumstances referred to in Line 2 above, the controller must designate a 
representative established in Belgian territory, without prejudice to legal actions 
which could be initiated against the controller himself. 

COMPARISON  WITH  THE  DIRECTIVE:  According  to  Directive  95/46/EC  the 
applicable law will be that of the country in which the controller of the personal data is 
established; that is to say the country of residence of the controller of the file regardless 
of the place of processing of the data (lex loci delicti commissi) and of the nationality or 
residence of the victims of said processing.  

Under  Belgian  law  the  applicable  law  will  be  Belgian  law  when  the  residence  of  the 
controller of the file is Belgium. The act therefore complies with the Directive 

Like  the  Directive,  Belgian  law  provides  that  Belgian  law  will  also  apply  when  the 
controller of the file does not live in Belgium but makes use of equipment located there for 
gathering data. It therefore fully complies with the Directive. 

4. International jurisdiction on non-contractual obligations 

A. General rule 

•  Belgian Code of International Private Law (Act of 16 July 2004) 

The  Belgian  Code  of  International  Private  Law  has  introduced  a  special  rule  for 
lawsuits  founded  on  a  non-contractual  obligation  associated  with  a  harmful  event 
(Art. 96.2). The text is based on the Brussels I Regulation and allows the jurisdiction 

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privacy and rights relating to personality. 
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of the Belgian Courts to be established in cases in which the “operative event” of the 
damage occurred in Belgium. 

In the event of a partial location in Belgium, jurisdiction is not limited to cases in 
which the operative event has occurred in Belgium but also includes cases in which 
the damage has been caused in Belgium. Like the Brussels Regulation the text limits 
the jurisdiction to local damage, and the defendant must therefore have recourse to 
the foreign courts if he wishes to obtain a concentration of suits. 

Unlike the Brussels Regulation the Code does not normally [normalmente] establish 
the  internal  territorial  jurisdiction.  This  shall  be  determined  in  accordance  with 
Articles 624 et seq. of the Legal Code. 

Article 635 of the Legal Code contains no specific provision in this regard and the 
jurisdiction will therefore be determined in accordance with other concepts such as 
the  domicile  or  residence  of  the  defendant  or  plaintiff,  or  in  accordance  with  the 
place in which the obligation has been created.  

CHAPTER  IX,  Obligations,  Section  1:  International  jurisdiction.  International 
jurisdiction in matters of contractual and non-contractual obligations 

Art 96. The Belgian Courts are qualified to hear all suits in matters of obligations 
and other cases provided for in the general provisions of this act when the suit 
concerns: 

1. A contractual obligation… 

2. An obligation derived from a harmful event  

a. If the operative event of the damage occurs or threatens to occur in all or in a 
part of Belgium  

b. if and insofar as the damage has occurred or threatens to occur in Belgium 

3. A quasi-contractual obligation if the event from which this obligation arises has 
occurred in Belgium  

B. Special rule on matters of offences against personality 

In  the  absence  of  special  rules  we  refer  to  the  rules  of  international  jurisdiction 
governing matters of civil liability. 

In  the  context  of  the  Brussels  Regulation  the  forum  corresponding  to  the  “harmful 
event”  is  translated  as  the  place  where  the  defamation  has  been  made  by  way  of  the 
media.  The  term  harmful  event  [hecho  dañoso]  covers  two  constituent  elements:  the 
event giving rise to the damage and the materialisation of the damage and the plaintiff 
may  choose  between  different  EU  member  states  depending  on  where  each  of  these 
elements  has  occurred  (TJCE  case  21/76,  m30  Nov.  1976  Bier  c  Mines  de  potase 
d’Alsace).  In  the  case  of  the  libellous  publication  the  event  giving  rise  to  the  damage 
can  only  be  located  in  the  establishment  since  it  is  the  place  of  origin  of  the  harmful 

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privacy and rights relating to personality. 
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event  from  which  the  defamation  has  been  declared  and  circulated  (TSCE  Case  C 
68/1993,  7  March  Shevill  Re.  Gene  Dr.civ  1996)  and  the  attack  on  the  reputation 
occurred  in  the  place  of  its  manifestation,  the  place  where  the  publication  has  been 
published or where the victim has learnt of it (Shevill case)  

Belgian jurisprudence  

•  Bruxelles , 4 mai 2001 “la veuve de Saint Pierre”, Journal des Tribunaux 2003, 
234. They locate the event giving rise to the damage in the place of production of 
the  film  or  of  the  copies  and  the  damage  in  the  place  of  distribution  (TV 
programmes abroad, location of a video library) 

•  Civ.  Bruxelles,  7  janvier  2002,  Auteur  &Media  (2002)455.  The  place  of 
materialisation of the damage is considered to be the place of dissemination of a 
book in Belgium. 

•  Bruxelles,  26  février  2003,  Revue  générale  des  assurances  et  des  responsabilités 
2004 n° 13871. The place of materialisation of the damage is considered to be the 
place of distribution by way of the press.  

The solution appears to favour the publisher. Indeed, the event will normally be located 
in the place of his domicile (Art. 2) and this limits the options provided to the damaged 
party  by  virtue  of  Art.  5.  Furthermore  the  decision  to  disseminate  in  a  given  country 
could be viewed as an event giving rise to damage, 

5. Summary  

1. Autonomous Legislation: Loi du 8 décembre 1992 relative à la protection de la vie 
privée  à  l'égard  des  traitements  de  données  à  caractère  personnel  (loi  vie  privée) ; 
Arrêté royal du 13 février 2001 portant exécution de la loi du 8 décembre 1992 relative 
à  la  protection  de  la  vie  privée  à  l'égard  des  traitements  de  données  à  caractère 
personnel . 
2.  The  Belgian  Code  of  International  Private  Law  introduces  a  special  choice  of  law  rule  for 
cases  of  defamation  or  attacks  on  private  life  or  against  personality  rights  (Art.  99.2.1). 
Jurisprudence: Bruxelles 27 abril 2004, Auteurs &Media (2005) 80. Location in Belgium, place 
of publication of the photos, the operative event when the person suffering the damage lives in 
France and the photos have been taken in France. 

3. Transposition of the Directive 46/95: It complies with the Directive 
4.  Jurisdiction:  Belgian  Code  of  International  Private  Law  (Act  of  16  July  2004):  Art.  96.2 
special rule on non-contractual obligations.  
Belgian  jurisprudence:  Bruxelles  ,  4  mai  2001  “la  veuve  de  Saint  Pierre”,  Journal  des 
Tribunaux 2003, 234. They locate the event giving rise to the damage in the place of production 
of the film or of the copies and the damage in the place of distribution (TV programmes abroad, 
location of a video library; Bruxelles, 7 janvier 2002, Auteur &Media (2002)455. The place of 
materialisation  of  the  damage  is  considered  to  be  the  place  of  dissemination  of  a  book  in 
Belgium; Bruxelles, 26 février 2003, Revue générale des assurances et des responsabilités 2004 
n°  13871.  The  place  of  materialisation  of  the  damage  is  considered  to  be  the  place  of 
distribution by way of the press.  

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6. BIBLIOGRAPHY 
•  RIGAUX, F y FALLON, M., Droit International Privé. 3eme ed. Précis de la Faculté 

de Droit de l’Université catholique de Louvain, 2005, Bruxelles. 

•  FALLON,  M.,  « The  law  applicable  to  international  obligations,  a  Belgian  point  of 
view”,  Hague/Zagreb/Ghent  essays  8,  Anvers,  Maklu  1989;  id.  “L’incidence  de  la 
autonomie de la volonté sur a détermination du droit applicable à la responsabilité civil 
no contractuelle », Mélanges Dalq Bruxelles, Larcier 1994 ;  

•  FALLON, M y FRANCQ, S. « Le conflits de en matière d’obligations contractuelles et 
non  contractuelles  1986/1997.  Chronique  de  jurisprudence »,  Journal  de  Tribunaux 
1998, pp. 683/700 

•  VANDER  ELST,  R.  « Lois  régissant  l’action  en  réparation  d’un  délit  commis  par  un 

belge a l’étranger », Rev. Crit. Jur. Belg. 1957, pp. 195/203 

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BULGARIA4 

a) Autonomous Rules 

Defamation 

The offence of defamation is included in articles 146 to 148 of the Bulgarian Penal Code. After 
the  reform  of  1998,  the  punishment  for  these  offences  changed  from  imprisonment  to  Court-
determined  criminal  fines  which,  in  accordance  with  Article  78  of  the  penal  Code,  are  often 
changed to administrative fines. 

On  22  July  1999,  Parliament  amended  the  criminal  Code  to  remove  imprisonment  as  a 
punishment for insult and defamation. Six months later, Parliament decided to replace custodial 
sentences  with  fines  of  5,000  to  30,000  levs  (around  US$2,500-US$15,000).  However, 
President Petar Stoyanov vetoed the level of the fines, claiming that they were too high in light 
of the salaries paid to journalists. As a result, insult and defamation remain offences, but they 
are no longer punished by prison sentences. 

The civil Code establishes from a civil point of view that both individuals and legal entities may 
bring an action for insult and defamation by the press. Individuals may claim for damages and 
both material and non-pecuniary losses; legal parties may only claim for damages and material 
losses. The defendant bears the burden of proof in establishing the truth of published matter. 

Events  in  criminal  application  and  provision  of  civil  rights  concerning  defamation  at  a 
national level 

In July 1998 the Constitutional Court rejected a movement by members of Parliament for total 
decriminalisation of defamation, arguing that in a democratic society there had to be effective 
protection for human dignity, and that human dignity was of central importance to and directly 
protected in the Bulgarian Constitution.  

The  Constitutional  judges  justified  the  penal  Code’s  special  protection  for  civil  servants  and 
other government representatives with the explanation that “the criminal provisions protect not 
just the individual but also the reputation of the relevant institution”. 

In  an  official  declaration,  the  Justice  Ministry  maintained  that  Bulgaria’s  defamation  law 
complies  with  obligations  arising  from  the  international  human  rights  Treaties  ratified  by  the 
State, forming part of its domestic legislation in accordance with Article 4 of the Constitution 
and  more  specifically  with  the  European  Convention    on  Human  Rights  and  Fundamental 
Liberties. 

According to the Bulgarian authorities, the quantity of fines imposed on press journalists under 
the Criminal Code appeared to have fallen in 2000.  

4  UBC.  Particular  attention  was  paid  to  the  document  on  defamation  and  press  media  created  by  the 
Secretariat of the CDMC at the Council of Europe. CDMC (2006)007. 

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Some  courts  continue  to  impose  heavy  sentences  with  disproportionate  fines.  (Several  non-
governmental  organisations  criticise  this  situation  (Bulgarian  Helsinki  Committee,  AR  2003; 
RSF-AR, 2004).  

While  the  number  of  defamation  cases  rose  between  2001  and  2003  (Bulgarian  Helsinki 
Committee  AR  2003)  the  number  of  journalists  convicted  is  relatively  low.  According  to  the 
Bulgarian  Institute  of  Statistics  only  11  people  were  sentenced  in  2004  for  affronts  in  press 
articles.  Seven  people  were  convicted  under  Article  148  paragraph  1  and  one  person  under 
Penal Code Article 148 paragraph 2.  
Information from the National Reports On Human Rights – 2004 (Office of Democracy, Human 
Rights  and  Employment,  28  February  2005)  show  that  the  fines  imposed  may  be  considered 
reasonable  and  range  from  US$2,000  (3,000  levs)  to  US$6,670  (10,000  levs)  for  libel  and 
US$3,335 (5,000 levs) to US$10,000 (15,000 levs) for defamation. 

In  its  2003  annual  report,  RSF  reports  that  Pact  146,  147  and  148  of  the  current  law  on 
communication  media  allows  for  fines  and  was  used  against  journalists  who  accused  political 
figures of corruption (RSF-AR, 2003). 

b) Applicable law 

•  Bulgarian International Private Law Code. Prom. SG. 42/17 May 2005  

Art. 2. (1) private relationships with an international element are regulated by the legislation of 
the State with which they are most closely connected. The content of the code provisions with 
regard to determination of the applicable law shall express this principle. 
2) Should it not be possible to determine the applicable law according to the reasons given in 
Part  Three,  other  criteria  shall  be  used  to  determine  the  legislation  of  the  most  closely  linked 
state.  

General rules: Non-contractual obligations 

Art. 105. (1) The obligations deriving from the infraction shall be determined by the law of the 
State on whose territory the harm or direct damages occurred or the danger existed of the harm 
or direct damages arising. 
(2)  If  the  person  causing  the  harm  or  the  injured  party  are  normally  resident  or  active  in  the 
same State, the law of said State shall apply. 
3)  In  spite  of  the  provisions  of  Paragraphs  1  and  2,  if  given  the  whole  circumstances  of  the 
suspected infraction it is deduced that there is a considerably closer connection to another State, 
the  law  of  this  other  State  shall  apply.  In  the  process  a  closer  connection  may  be  found 
depending on a previous relationship between the parties, such as a contract closely related to 
the infraction. 

Special rules 

Art.  108.  (1)  The  wronged  party  may  choose  whether  obligations  arising  from 
defamations  by  the  media  relating  to  personal  rights,  and  above  all  by  press,  radio, 
television or other mass media, are regulated by: 
1. the law of the State where they normally reside, or 2. the law of the State on whose 
territory  the  harm  occurred,  or  2.  the  law  of  the  State  where  the  party  whose 
responsibility is being tested is normally resident or active 

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contractual obligations arising out of violations of 
privacy and rights relating to personality. 
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(2) In the cases of Paragraph 1, articles 1 and 2 the person whose responsibility is being 
tested must have been able to foresee that the harm could have occurred on the territory 
of the respective State. 
(3) The right to objection in cases of infraction relating to personal rights by the mass 
media shall be determined according to the law of the state where publication took place 
or the programme was broadcast. 
(4)  The  provisions  of  Paragraph  1  shall  also  be  applied  to  obligations  arising  from 
infraction of rights concerning the protection of personal information. 

c) Transposition of the Directive 

•  Law on protection of data promulgated in the State Gazette ¼ January 2002, enters into 
force on 1 January 2002 (Prom. SG. 1/4 Jan 2002, amend. SG. 70/10 Aug 2004, amend. SG. 
93/19 Oct 2004, amend. SG. 43/20 May 2005, amend. SG. 103/23 Dec 2005, amend. SG. 
30/11 Apr 2006, amend. SG. 91/10 Nov 2006, amend. SG. 57/13 Jul 2007) 

Art.  4.  this  law  shall  be  of  application  to  the  processing  of  personal  information  where  the 
administrator of personal information: 
1.  is  established  on  territory  belonging  to  the  Republic  of  Bulgaria  and  processes  personal 
information during the course of business;  
2. is not established on territory belonging to the Republic of Bulgaria, but this law is applicable 
because of international public law; 
3. is not established in territory of an EU member state but for the purposes of the media uses 
localised information-handling measures on Bulgarian territory, except where it is only intended 
to  be  used  for  purposes  of  transportation;  in  this  case  the  administrator  shall  inform  a 
representative, chosen by the Republic of Bulgaria, without discharge of responsibility. 

Therefore under Bulgarian law (as well as the Directive) Bulgarian law shall apply to the 
party responsible for the file if resident in Bulgaria. It fully respects the Directive. 

Bulgarian Law. As well as the Directive, Bulgarian law considers that Bulgarian law shall 
apply  when  the  party  responsible  for  the  file  is  not  situated  in  France  but  uses  media 
situated  in  Bulgaria  for  the  collection  of  information.  Therefore  it  respects  fully  the 
Directive. 

d) Legal Jurisdiction 

•  Bulgarian International Private Rights Code. Prom. SG. 42/17 May 2005  

Art. 18. (1) Bulgarian courts shall have jurisdiction over claims for harm and damages, except 
for the cases of Art. 4, where the operative event for the harm was committed in the Republic of 
Bulgaria, or the harms or damages or a part thereof occurred in the Republic of Bulgaria. 
(2)  the  harmed  or  injured  party  shall  present  jurisdiction  of  Paragraph  1  directly  against  the 
insurer of the party whose responsibility is being tried.  

Art. 19. (1) The Bulgarian courts shall have exclusive jurisdiction over claims included in Art. 
80 Paragraph 1 page “d” of the Civil Procedures Code, where the legal entity is registered in the 
Republic of Bulgaria.   

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contractual obligations arising out of violations of 
privacy and rights relating to personality. 
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e) Summary  

1.  Autonomous  Rules:  the  offence  of  defamation  is  included  in  articles  146  to  148  of  the 
Bulgarian Penal Code. 
2.  Special  conflict  rule  in  the  realm  of  non-contractual  obligations  deriving  from 
offences  against  personal  rights  committed  by  the  mass  media:  Art.  108,  Bulgarian 
International  Private  Rights  Code.  Prom.  SG.  42/17  May  2005:  choice  of  the  injured 
party between 1. law of the State where they are normally resident, or 1. the law of the 
State  where  the  damages  occurred,  or  3.  the  law  of  the  State  where  the  party  whose 
responsibility is being tried is normally resident or carries out business  
3. Transposition of the Directive 46/95: fully respects the Directive. 
4. Legal Jurisdiction: Bulgarian International Private Rights Code. Prom. SG. 42/17 May 2005: 
Art. 18. “Bulgarian courts shall have jurisdiction over claims for harm and damages, except for 
the cases of Art. 4, where the operative event for the harm was committed in the Republic of 
Bulgaria, or the harms or damages or a part thereof occurred in the Republic of Bulgaria” 

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CYPRUS5 

1. Substantive Law 

The legal system is a mixture of English and continental law. On issues of human rights the 

relevant  part  of  the  Constitution  is  almost  identical  to  that  of  Greece.  On  the  other  hand 

common law (anglo-saxon) principles apply extensively. Protection on such issues derives from 

the international treaties, the EU law, the Constitution and the internal secondary legislation. 

The  right  to  respect  for  the  private  life  of  every  person  is  provided  by  Article  15 

(Part II) of the Constitution of the Republic of Cyprus. According to this article:  

to 

the 

right 

respect 

“1.  Every  person  has 
family life. 
2. There shall be no interference with the exercise of this right except such as is in 
accordance with the law and is necessary only in the interests of the security of the 
Republic or the constitutional order or the public safety or the public order or the 
public health or the public morals or for the protection of the rights and liberties 
guaranteed by this Constitution to any person”6. 

for  his  private  and 

For  its  part,  the  law  on  the  freedom  of  expression  is  acknowledged  in  art.  19  of  the  said 

Constitution7.  

These  rights  are  also  protected  by  the  European  Convention  of  Human  Rights  and 

Fundamental Freedoms, since the Convention was ratified by Cyprus in 1962. The Convention 

forms  part  of  the  Law  of  Cyprus  and  its  force  is  superior  to  any  other  internal  rule,  although 

according to the hierarchy it is under the Constitution. 

Another of the internal regulatory instruments to be taken into consideration in connection 

with this matter is the Civil Wrongs Law. Defamation is regulated in sections 17-24 of the Civil 

5 Dr. Pavlos Neofytou Kourtellos and the University of the Basque Country 
6 The Police v. Yiallourus (1992), CLR 147. 
7 “1. Every person has the right to freedom of speech and expression in any form. 2. This 
right  includes  freedom  to  hold  opinions  and  receive  and  impart  information  and  ideas  without 
interference  by  any  public  authority  and  regardless  of  frontiers.  3.  The  exercise  of  the  rights 
provided  in  paragraphs  1  and  2  of  this  Article  may  be  subject  to  such  formalities,  conditions, 
restrictions or penalties as are prescribed by law and are necessary only in the interests of the 
security of the Republic or the constitutional order or the public safety or the public order or the 
public health or the public morals or for the protection of the reputation or rights of others or for 
preventing the disclosure of information received in confidence or for maintaining the authority 
and impartiality of the judiciary. 4. (...). 5. (...). 

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privacy and rights relating to personality. 
JLS/2007/C4/028. Annex III 

Wrongs Law8. Defamation consists of the publication by any person by means of print, writing, 

painting,  efiggy,  gestures,  spoken  words  or  other  sounds,  orby  any  other  means  whatsoever, 

including broadcasting by wireless telegraphy of any matter which: imputes to any other person 

a crime, or; imputes to any other person misconduct in any public office, or; naturally tends to 

injure  or  prejudice  the  reputation  of  any  other  person  in  the  way  of  his  profesión,  trade, 

business, calling or office, or; is likely to expose any other person to general hatred, contempt or 
ridicule, or; is likeky to cause any other person to be shunned or avoided by other persons9. 

Responsibility for defamation is divided into two categories: libel and slander, according as 

to whether the defamatory statement is in a permanent form. 

According to section 19 of the Civil Wrongs Law The defendant can allege that: the matter 

of  which  complaint  was  made  was  true;  the  matter  of  which  complaint  was  made  was  a  fair 

comment  on  some  matter  of  public  interest;  the  publication  of  the  defamatory  matter  was 

privilege  under  sections  20  and  21  of  the  Act,  and;  the  defamation  was  unintentional  under 
section 22 of the Law10. 

2. Rules of Conflict 

The  jurisdiction  of  Cyprus  is  one  of  common  law  and  the  principles  of  common  law  of 

English  Law  will  apply  in  the  courts  of  Cyprus  when  no  specific  regulation  or  jurisprudence 
exists  in  the  law  of  Cyprus  for  the  specific  case11.  This  point  has  been  acknowledged  by  the 
courts of Cyprus in the matter Cochino v. Irfan12. 

In regard to non-contractual liability, in the private international law of Cyprus the 

central  question  is  as  follows:  When  a  claim  is  presented  in  the  courts  of  Cyprus  in 

respect  of  facts  that  have  taken  place  in  another  State,  should  the  courts  of  Cyprus 

declare themselves to be competent? And in the case of an affirmative response, which 

law must be applied? 

When the tort occurs in Cyprus, the courts will apply the Substantive Law of Cyprus; this is 

the same solution for which provision is made in English law. This option was confirmed by the 
Supreme Court of Cyprus in the case Georghiades and son v. Kaminaras13. 

In  cases  of  defamation  taking  place  abroad,  the  courts  of  Cyprus  will  apply  Private 

International English Law. Accordingly, the rule of double actionability will apply. In order for 

8 A Neocleous, Introduction to Cyprus Law, Limassol, Yorkhill Law Publishing, 2000, pp. 

558 et seq 

9 Cf. ibid. p. 559. 
10 Cf. ibid. pp. 561-562. 
11 Ibid., p. 871. 
12 Cochino v. Irfan (1997) 11 JSC, 1780. 
13 Georghiades and son v. Kaminaras (1958), CLR, 276. 

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contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex III 

the courts of Cyprus to hear a claim, it must be actionable both in accordance with the Law of 

the State where the unlawful action (lex loci delicti) took place, and in accordance with the Law 

of Cyprus (lex fori).  

The  Court  hearing  the  case  Coupland  v.  Arabian  Gulf  Oil  Co.  considered  that  once  the 

requirement of double actionability had been met, the Law according to which the court should 

decide must be the lex fori, to the extent that this corresponds with the provisions of the lex loci 

delicti.    This  decision  was  cited  and  approved  by  the  Supreme  Court  of  Cyprus  in  the  case 
Safarino v. Stavrinou14. 

Civil liability according to the lex fori and the lex loci delicti must exist between the same 

parties involved in the proceeding. In the event that in accordance with the lex loci delicti the 

action may only be brought by another person who is not the plaintiff, the said action may not 

be brought in Cyprus. Equally, if a claim cannot be brought against the defendant in accordance 
with the Foreign Law according to the lex fori the said action cannot take place15. 

However, the general rule on double actionability does have one exception. According to 

this  special  rule,  in  specific  cases  the  court  may  apply  another  Law  when  this  presents  closer 

connections with the proposed Law and the parties. By means of this exception the flexibility of 

the rule is increased and instances of injustice can be avoided that could arise as a consequence 
of the application of the general rule16, as legal uncertainty is increased. 

3. Case Law concerning Rules of Conflict  

In  regard  to  the  relevant  case  law  concerning  rules  of  conflict  in  cases  of  defamation, 

English case law must be taken into consideration. In particular: Phillips v. Eyre (1870) L).R. 6 

Q).b. 1 (Exch.) and Boys v. Chaplin (1971) AC 356. 

Among  the  decisions  the  Courts  of  Cyprus  the  aforementioned  Safarino  v.  Stavrinou  is 

especially noteworthy. 

4. Specialised Courts 

In  Cyprus  we  do  not  have  courts  especially  for  violations  of  personality  and/or  privacy 

rights. 

14 Cf. Ibid., p. 883. 
15 Cf. Ibid., p. 883. 
16 Cf. Ibid., p. 883 

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privacy and rights relating to personality. 
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5. Directive 95/46/EC 

According to art. 3.3 on the Processing of Personal Data (Protection of the Individual) Law 

of 2001, as amended in 2003: 

“This law shall apply to any processing of personal data, where this is performed –  
a) By a controller established in the Republic or in a place where Cyprus law applies by 
virtue of public international law; 
b) a controller not established in the Republic who, for the purposes of the processing of 
personal  data,  makes  use  of  means,  automated  or  otherwise,  situated  in  the  Republic, 
unless such means are used only for purposes of transmission of data through the Republic. 
In  such  a  case,  the  controller  must  designate,  by  a  written  statement  submitted  to  the 
Commissioner, a representative established in the Republic, who is vested with the rights 
and  undertakes  the  obligations  of  the  controller,  the  latter  not  being  discharged  of  any 
special liability”. 

As  can  be  observed  in  this  article,  the  Cyprus  Law  of  Transposition  coincides  to  a  great 

extent with the provisions of art. 4 of Directive 95/46/EC of the European Parliament and of the 

Council of 24 October 1995 in relation to the protection of natural persons in connection with 

the processing of personal data and the free circulation of such data. 

However, a notable difference does exist. The Directive establishes that National Law will 

apply  to  the  entities  responsible  for  the  processing  the  data  which  are  not  established  within 

Community  Territory  and  have  access,  for  the  processing  of  personal  data,  to  resources, 

electronic or otherwise, located within the territory of the said Member State, except where the 

said  resources  are  used  solely  for  purposes  of  transit  by  the  territory  of  the  European 

Community.  For  its  part,  the  Law  of  Cyprus  provides  that  in  these  same  cases  the  Law  of 

Cyprus  will  apply  when  the  entity  responsible  for  the  processing  is  not  established  within  the 

Republic  of  Cyprus  (and  not  in  a  Member  State).  This  is  an  important  difference,  in  that  the 

Law  of  Cyprus  will,  in  principle,  apply,  notwithstanding  that  the  entity  responsible  for  the 

processing is established in another Member State where the Directive has been transposed by 

means  of  domestic  law.  This  defective  transposition  goes  against  the  spirit  of  the  rule  and 

amounts  to  nonfulfilment  of  the  Directive.  Accordingly,  it  would  be  possible  that  in  future 

decisions  handed  down  by  the  Courts  of  Cyprus  contrary  to  the  provisions  of  art.  4  of  the 

Directive may not be recognized in the other Member States. 

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privacy and rights relating to personality. 
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6. Bibliography 

Neocleous,  A.:  Introduction  to  Cyprus  Law,  Limassol,  Yorkhill  Law  Publishing,  2000,  en 

http://www.neocleous.biz/en/download/ebook/neobook.pdf.  

Secretariat of the Council of Europe: “Examination of the alignment of the laws on defamation 

with the relevant case law of the European Court of Human Rights, including the issue 

of decriminalisation of defamation”, Strasbourg, 2006. 

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privacy and rights relating to personality. 
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Czech Republic17 

1. Applicable Law 

The Constitution of the Czech Republic does not include a list of fundamental rights 

and freedoms such as are found in many European Constitutions. Nevertheless, Art. 3 of 

the Constitution provides that “an integral component of the constitutional system of the 

Czech  Republic  is  the  Charter  of  Fundamental  Rights  and  Freedoms”.  Therefore,  it 

should  be  understood  that  privacy  and  personality  rights  are  protected  in  the 

constitutional system since Art. 8.1 of the Charter of Fundamental Freedoms and Rights 

forms an integral part of the Constitution.  

The  protection  of  personality  rights  is  set  out  in  the  Civil  Code,  Act  no  40/1964.  The 

provisions of this law are as follows: 

Para 11: provides that “an individual shall have the right to protection of his or her 
personhood,  in  particular  of  his  or  her  life  and  health,  civic  honour  and  human 
dignity as well as of its privacy, name and expressions of personal nature”.  

§  12:  (1)  Documents  of  personal  nature,  portraits,  pictures  and  image  and  sound 
records  concerning  an  individual  or  expressions  of  his  personal  nature  may  be 
taken or used only with his or her consent. 
(2) The consent shall not be required if the documents of personal nature, portraits, 
pictures  and  image  and  sound  records  are  to  be  used  for  official  purposes  on  the 
basis of an act. 
(3) Portraits, pictures and image and sound records may be taken or used without 
the consent of the individual adequately also for purposes of science or art and for 
the purposes of press, motion picture, radio and television news service. However, 
such use must not be at variance with lawful interests of the individual.  

§  13:  (1)  The  individual  shall  be  entitled  in  particular  to  demand  that  unlawful 
violation  of  his  or  her  personhood  be  abandoned,  that  consequences  of  this 
violation be removed and that an adequate satisfaction be given to him or her. 
(2) If the satisfaction under paragraph 1 appears insufficient due to the fact that the 
individual's dignity or honour has been considerably reduced, the individual shall 
also have a right to a pecuniary satisfaction of the immaterial detriment. 
(3) The amount of the satisfaction under paragraph 2 shall be specified by the court 
with regard to intensity and circumstances of the arisen infringment.  

17 Jakub Vyplel and the University of the Basque Country. 

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§  15:  After  the  death  of  the  individual,  the  right  to  protection  of  his  or  her 
personhood  may  be  asserted  by  his  or  her  spouse  or  children  or,  if  there  are  no 
spouse or children, to his or her parents.  

§ 16: A person who causes damages by unlawfully violating the right to protection 
of personhood shall be liable for these damages according to the provisions of this 
Act concerning liability for damages.  

2. Rules of Conflict 

In the Czech Republic legal system conflict of laws rules for instances of denial of personal 

rights are found in Law no. 97/1963, on International Private and Procedural Law. There is no 

specific law governing instances of infringement of personality rights by the media, so general 

law pertaining to non-contractual obligations set out in Art. 15 of the Law apply. Pursuant on 

this law,  

"Claims to compensation of damages shall be governed by the law of the place where the 
damages occurred or by the law of the place where it came to the event that justifies the 
right  to  compensation  of  damages  unless  the  matter  is  non-fulfillment  of  an  obligation 
following from agreements or other legal acts”. 

Therefore, claims for compensation for injury arising from personal rights will be governed 

by the law of the place in which the injury occurred and by the law of the place where the event 

giving rise to the damage occurred.  

By  applying  this  provision  to  personality  right  infringements  by  publications  in  the  press 

we may conclude that the governing law would be the law of the state in which publication took 

place, the law of the states in which it was distributed, or in any state in which infringement of 

personal privacy rights was suffered.  

3. Case Law on Rules of Conflict 

Only two legal rulings are found that apply Art. 15 of Law no. 97/1963, on International 

Private and Procedural Law: The Supreme Court of the Czech Republic in decision 25 of ref 

2881/2004 and The Supreme Court of the Czech Republic in decision 25 ref 2892/2000. 

4. Specialised Courts 

We are not aware of any specialised court operating in this field. 

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contractual obligations arising out of violations of 
privacy and rights relating to personality. 
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5. EC Directive 95/46/EC 

According to Art. 3.5 of the Consolidated version of the Personal Data Protection Act, Act 101 
of April 4, 2000 on the Protection of Personal Data and on Amendment to Some Acts, which 
transposes art. 4 of the EC Directive 95/46/EC of the European Parliament and Council of 24 
October 1995 relating to the protection of natural persons in terms of processing personal data 
and free circulation of such data: 

“Furthermore, this Act shall apply to personal data processing: 
(a) if the law of the Czech Republic is applicable preferentially on the basis of the international 
public law, even if the controller is not established on the territory of the Czech Republic, 
(b) if the controller who is established outside the territory of the European Union carries out 
processing  on  the  territory  of  the  Czech  Republic,  unless  where  it  is  only  the  personal  data 
transfer over the territory of the European Union. In this case the controller shall be obliged to 
authorize  the  processor  on  the  territory  of  the  Czech  Republic  under  procedure  laid  down  in 
Article 6. 
If  the  controller  carries  out  processing  through  its  organization  units  established  on  the 
territory  of  the  European  Union,  he  must  ensure  that  those  organization  units  will  process 
personal  data  in  accordance  with  national  law  of  a  respective  member  state  of  the  European 
Union”. 

This provision accurately reproduces the contents of Art. 4 of the Directive. 

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contractual obligations arising out of violations of 
privacy and rights relating to personality. 
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Denmark18 

1. National rules 

There exist a number of rules relating to protection of private life and intimacy in Denmark. The 
most important is the following: 

- Section 71 constitution stating: "Personal liberty shall be inviolable. No Danish subject shall, 
in  any  manner  whatsoever,  be  deprived  of  his  liberty  because  of  his  political  or  religious 
convictions or because of his descent." This protects the individual against imprisonment due to 
political, religious convictions or descent. Furthermore subsection 2 of section 71 protects states 
that imprisonment can only take place if warranted by law.  

- Section 72 of the constitution stating: "The dwelling shall be inviolable. House search, seizure, 
and examination of letters and other papers, or any breach of the secrecy that shall be observed 
in  postal,  telegraph,  and  telephone  matters,  shall  not  take  place  except  under  a  judicial  order, 
unless  particular  exception  is  warranted  by  statute."  This  protects  the  individual  against 
unwarranted search of the individual's premises, letters etc. 

-  Section  73  of  the  constitution  stating:  "The  right  of  property  shall  be  inviolable.  No  person 
shall be ordered to surrender his property except where required in the public interest. It shall be 
done  only  as  provided  by  statute  and  against  full  compensation."  This  means  that  property 
cannot be claimed by the state unless this is required due to public interests, and in such case the 
individual must be compensated and it should be warranted by law. 

-  Section  1  of  the  unfair  marketing  practices  Act  (Act  No.  1389  of  21  December  2005  with 
amendments  of  No.  538  of  8  June  2006,  No.  1547  of  20  December  2006,  and  No.  181  of  28 
February 2007)  stating: "1. Traders subject to this Act shall exercise good marketing practice 
with reference to consumers, other traders and public interests." 

 This clause is used by the courts to protect the personality rights, i.e. the right to your name, 
picture, voice and story. Thus, if a media brings pictures of a person without any text with an 
editorial content, it will be in conflict with the Unfair Marketing Practices Act. 

-Freedom of speech is protected  by the Constitution section 77. Section 77 bans all forms for 
censorship but does not protect the individuals against criminal or civil liability after the speech 
has  been  made.  Section  77  does  not  explicitly  address  the  freedom  of  the  press,  but  as 
censorship is banned, the press will have the possibility of publishing everything, but of course 
made. 
subject 

publication 

liability 

been 

after 

has 

the 

to 

Information on relevant legal provisions on defamation   

Criminal Code  

18 Malou Bech Gilbertsson and UBC.  Special attention was paid to the document on libel and the press and media 
prepared  by  the  Secretariat  of  the  CDMC  [Spanish  contemporary  music  broadcasting  centre]  for  the  Council  of 
Europe. CDMC (2006)007. 

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The  Danish  legal  provisions  on  defamation  appear  in  sections  267-273  of  the  Criminal 
Code. These offences are liable to private prosecution.  
Section 267. “Any person who violates the personal honour of another by offensive words 
or  conduct  or  by  making  or  spreading  allegations  of  an  act  likely  to  disparage  him  in  the 
esteem of his fellow citizens, shall be liable to a fine or to imprisonment for any term not 
exceeding four months.”  

Section 268. “If an allegation has been made or disseminated in spite of one's knowledge to 
the contrary, or if the author has had no reasonable ground to regard it as true, he shall be 
guilty of defamation and liable to imprisonment for any term not exceeding two years. If the 
allegation has not been made or disseminated publicly, the punishment may, in mitigating 
circumstances, be reduced to a fine.”  

Section 269. “An allegation shall not be punishable if its truth has been established or if the 
author of the allegation in good faith has been under an obligation to speak or has acted in 
lawful protection of obvious public interest or of the interest of himself or of others.  
(2) Punishment may be remitted where evidence is produced which justifies the grounds for 
regarding the allegation as true.”  

Section  270.  “Where  the  form  in  which  the  allegation  is  made  is  unduly  offensive,  the 
penalty described in Section 267(1) of this Act may be inflicted, even where the allegation 
is true; the same shall apply if the author had no reasonable grounds for making the insult.  
(2) If the injured party demands punishment only under this section, the offender shall not 
be  allowed  to  prove  the  truth  of  the  accusation,  unless  this  is  clearly  justified  by 
considerations of public policy.”  

Section  271.  “In  the  case  of  an  allegation  of  a  punishable  act,  the  person  who  made  the 
allegation  shall  not  be  allowed  to  prove  the  committing  of  such  an  act  if  the  accused  has 
already been acquitted of it in the home country or abroad.  
(2)  Proof  of  conviction  of  a  punishable  act  shall  not  exempt  the  author  of  the  allegation 
from  punishment  if,  having  regard  to  the  nature  of  the  offence,  the  person  convicted  of  it 
had a reasonable claim that the act in question should not now have been revealed.”  

Section 272. “The penalty prescribed in Section 267 of this Act may be remitted if the act 
has been provoked by improper behaviour on the part of the injured person or if he is guilty 
of retaliation.”  

Section 273. “If a defamatory allegation is unjustified, a statement to that effect shall, at the 
request of the injured party, be mentioned in the judgment.  

(2) Any person who is found guilty of any defamatory allegation may, at the request of the 
injured party, be ordered to pay a sum fixed by the court to meet the cost of publishing, in 
one or several public papers, either the full report of the sentence of this together with the 
court’s reasoning. This shall apply even though the judgment was merely one of annulment 
of the allegation under Subsection (1) above.”  

Section 121 of the Criminal Code provides that a person who assaults a public servant with 
insults,  abusive  language  or  other  offensive  words  or  gestures  is  liable  to  a  fine  or  a 
maximum sentence of 6 months imprisonment. It is the public prosecutor who initiates the 
proceedings. According to information provided by the Danish authorities, it appears from 
its wording that the scope of application of section 121 is not defamation as such, but rather 

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privacy and rights relating to personality. 
JLS/2007/C4/028. Annex III 

verbal attacks on the categories of persons mentioned by means of insults, abusive language 
or other offensive words or gestures (e.g. spitting).  
Furthermore, section 266 b) provides that “any person who, publicly or with the intention of 
wider dissemination, makes a statement or imparts other information by which a group of 
people  are  threatened,  insulted  or  degraded  on  account  of  their  race,  colour,  national  or 
ethnic origin, religion or sexual inclination shall be liable to a fine or to imprisonment for a 
term not exceeding two years”. The Danish authorities specify that this provision deals with 
information  by  which  certain  groups  of  people  threatened,  insulted  or  degraded  (so-called 
hate speech).  

Developments  in  the  application  of  criminal  and  civil  law  provisions 
concerning defamation at domestic level  

Section  267,  paras.  2  and  3,  and  section  267a  of  the  Criminal  Code,  which  made  specific 
mentioning of public officials, were revoked in 2004.  

When Danish courts decide on a case concerning defamation, they examine the case in the 
light of the European Convention on Human Rights and they apply the test laid down in the 
case  law  of  the  European  Court  of  Human  Rights.  The  provisions  on  defamation  are  thus 
applied  and  sanctions measured  out  within in the  limits set out by the European Court on 
Human  Rights.  The  courts  therefore  very  often  specifically  refer  to  the  European 
Convention for Human Rights.  

For example, in 2003, the Danish Supreme Court acquitted a defendant from the charge of 
defamation,  making  reference  inter  alia  to  Article  10  of  the  European  Convention  on 
Human Rights and specifically to judgment of 26 February 2002 from the European Court 
of  Human  Rights,  Unabhängige  Initiative  Informationsvielfalt  v.  Austria.  (Ugeskrift  for 
Retsvæsen, 2003, pp. 2044) 

2. Applying law to non contractual obligations 

 Applying law to non contractual obligations resulting from infringements of personal privacy 
and personality rights: In Denmark the same articles would be used in a non contractual liability 
case with an international element as a similar case without an international element, provided 
that the case is subject to Danish law.  
In Denmark there is no law regulating the choice of law in non-contractual responsibility cases. 
The  general  principle  is  the  lex  loci  delecti,  which  means  that  the  law  of  the  place  of  the 
infringement will apply. However, if this does not lead to a "reasonable result" then the courts 
will assess to which country the case has the closest connection, and then this law applies.  

3. Court decisions 

Court  decisions  focusing  on  the  applicable  law  to  non-contractual  obligations  arising  from 
privacy and personality right infringements: 

-Decisions from the press council: 

2008-6-667 of 24 June 2008 regarding the use of hidden camera; 2008-6-674 of 24 June 2008 
regarding use of wrong information from a credible source; 2003 - 32 of 25 May 2008 regarding 
the right to comment on information  

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privacy and rights relating to personality. 
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-Court decisions with an international element: 

U.1960.1057/2 of 31 October 1960, Supreme Court: Danish law applied in a case where an 
English ship collided with a bridge in Denmark. 

4.  Directive 95/46/CE  

Directive 95/46/CE implemented by: The Act on processing of personal data (Act No. 429 of 31 
May 2000 as amended by section 7 of Act No. 280 of 25 April 2001, section 6 of Act No. 552 
of  24  June  2005  and  section  2  of  Act  No.  519  of  6  June  2007.  It  respects  the  European 
Directive.  

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Estonia19 

1. SUBSTANTIVE LAW 

Article 17 of the Estonian constitution sets forth that no one’s honour or good name 

must be defamed. Article 26 of the Estonian constitution sets forth that everyone has the 

right  to  the  inviolability  of  private  and  family  life.  State  agencies,  local  governments, 

and their officials shall not interfere with the private or family life of any person, except 

in the cases and pursuant to procedure provided by law to protect health, morals, public 

order,  or  the  rights  and  freedoms  of  others,  to  combat  a  criminal  offence,  or  to 

apprehend a criminal offender. Article 25 of the Estonian constitution further sets forth 

that everyone has the right to compensation for moral and material damage caused by 

the unlawful action of any person.  

The  detailed  provision  of  the  compensation  for  damage  are  stipulated  in  Articles 

1046, 1047 of the Estonian Law of Obligations Act. Compensation for the violation of 

the  right  of  privacy  by  ungrounded  imprisonment  is  governed  by  the  Estonian  State 

Liability Act and the Estonian Compensation for Damage Caused by State to Person by 

Unjust Deprivation of Liberty Act.  

These relevant provisions of the Law of Obligations Act set forth as follows: 

“§ 1046. Unlawfulness of damaging personality rights 
(1)  The  defamation  of  a  person,  inter  alia  by  passing  undue  judgement,  by  the 
unjustified use of the name or image of the person, or by breaching the inviolability 
of  the  private  life  or  another  personality  right  of  the  person  is  unlawful  unless 
otherwise  provided  by  law.  Upon  the  establishment  of  unlawfulness,  the  type  of 
violation,  the  reason  and  motive  for  the  violation  and  the  gravity  of  the  violation 
relative to the aim pursued thereby shall be taken into consideration. 
(2)  The  violation  of  a.  personality  right  is  not  unlawful  if  the  violation  is  justified 
considering  other  legal  rights  protected  by  law  and  the  rights  of  third  parties  or 
public  interests.  In  such  case,  unlawfulness  shall  be  established  based  on  the 
comparative assessment of different legal rights and interests protected by law”. 

“§ 1047. Unlawfulness of disclosure of incorrect information 
(1)  The  violation  of  personality  rights  or  interference  with  the  economic  or 
professional activities of a person by way of disclosure of incorrect information or 
by  the  incomplete  or  misleading  disclosure  of  factual  information  concerning  the 

19 Maksim Greinoman and the University of the Basque Country. 

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contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex III 

person  or  the  activities  of  the  person  is  unlawful  unless  the  person  who  discloses 
such information proves that, upon the disclosure thereof, the person was not aware 
and  was  not  required  to  be  aware  that  such  information  was  incorrect  or 
incomplete. 
(2)  The  disclosure  of  defamatory  facts  concerning  a  person  or  facts  which  may 
adversely affect the economic situation of a person is deemed to be unlawful unless 
the person who discloses such facts proves that the facts are true. 
(3)  Regardless  of  the  provisions  of  sub-articles  (1)  and  (2)  of  this  article,  the 
disclosure  of  information  or  facts  is  not  deemed  to  be  unlawful  if  the  person  who 
discloses  the  information  or  facts  or  the  person  to  whom  such  facts  are  disclosed 
has  legitimate  interest  in  the  disclosure  and  if  the  person  who  discloses  the 
information  has  checked  the  information  or  facts  with  a  thoroughness  which 
corresponds to the gravity of the potential violation. 
(4)  In  the  case  of  the  disclosure  of  incorrect  information,  the  victim  may  demand 
that the person who disclosed such information refute the information or publish a 
correction  at  the  person's)  expense  regardless  of  whether  the  disclosure  of  the 
information was unlawful or not”. 

“Article 9 of the State Liability Act sets forth as follows: 
(1) A natural person may claim financial compensation for non-proprietary damage 
upon  wrongful  degradation  of  dignity,  damage  to  health,  deprivation  of  liberty, 
violation  of  the  inviolability  of  home  or  private  life  or  the  confidentiality  of 
messages or defamation of honour or good name of the person. 
(2) Non-proprietary damage shall be compensated for in proportion to the gravity 
of the offence. 
(3) Fault in causing damage is not taken into account where the moral damages are 
claimed  for  under  a  decision  of  the  European  Court  of  Human  Rights,  which 
established breach of the European Convention of Human Rights or its protocol by 
a bearer of public authority”.  

It  should  be  noted  that  moral  damage  may  be  caused  by  torts  other  than 

infringements  of  personal  privacy  and  personality  rights.  Such  torts  are,  for  example, 

causing bodily damage, which are however excluded from this study.  

As has been seen above, Estonian law differentiates between violation of privacy in 

general on the one side and libel and slander on the other side. 

However,  the  limitation  of  claims  period  is  three  years  from  the  moment  the 

claimant learnt or must have learned the identity of the defendant, but not more than ten 

years  from  committing  or  occurring  of  the  tort  (Article  150  (1),  (3)  of  the  Estonian 

General Part of the Civil Code Act, Article 9 (4) of the Administrative Court Procedure 

Act). 

Both natural and legal persons may sue for violation or privacy, libel and slander, 

but  the  legal  persons  may  not  sue  for  the  compensation  of  moral  damage.  The  legal 

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privacy and rights relating to personality. 
JLS/2007/C4/028. Annex III 

person  is  entitled  only  for  the  compensation  of  material  damage  caused  by  libel 

(Decision of the National Court no. 3-2-1-35-97)  

Violation of privacy may manifest in different ways. For example, it is a breach of 

privacy  and  a  violation  of  Article  26  of  the  constitution  to  publish  in  newspaper 

information  that  the  defendant  was  a  victim  of  a  sex  crime  giving  data  allowing  to 

identify the person (Decision of the National Court no. 3-2-1-138-02). It is also a breach 

to  apply  solitary  confinement  to  a  person  in  the  custody  without  a  statutory  reason 

(Decision of the National Court no. 3-3-1-2-06). 

Estonian  law  does  not  give  generally  different  legal  consequences  to  libel 

(defamatory  publication)  and  slander  (oral  defamation).  However,  should  a  slander 

occur  in  public  or  against  a  judge  or  representative  of  state,  this  may  constitute  an 

offence. Penal law punishment does not however affect a right of the claimant for the 

damages. By contrast, Estonian law differentiates between libel/slander on one side and 

insult on the other.  

Differentiation of defamation by a factual statement and by an insult is critical both 

from the points of the burden or proof and remedies. 

In its decision no. 3-2-1-99-97 the National Court explained it as follows: “Factual 

statement may be potentially controlled, its trueness or falseness may be proven in court 

proceedings. Value judgement is exposed in the opinion of a person, which is because of 

its  content  (way  of  revealing)  or  form  is  in  the  given  cultural  environment  is  of 

defamatory nature. Value judgement may be reasoned, but its trueness or falseness may 

not be proven. Therefore if an honour of a person is defamed by a value judgement, this 

person may not demand […] refuting – since that information does not content data.”  

Differentiating between the two may be challenging and it may be helpful to take a 

view  of  the  court’s)  explanation  in  its  case  no.  3-2-1-99-97.  The  court  was  concerned 
with  the  phrase  “Luther”20  is  a  classical  extortioner  as  all  hammerheads21”.  The  court 
ruled that “Luther was an extortioner” was a statement of fact and “hammerhead” was a 

value judgement. Another good example is a decision of the National Court no. 3-2-1-

161-05,  where  the  court  has  rules  that  expressions  “misappropriation  of  property” 

“misuse  of  the  official  positions”  may  be  also  statement  of  facts  depending  of  the 

context  and  the  person  to  whom  these  have  been  addressed  (Decision  of  the  National 

Court no. 3-2-1-161-05, § 9).  

20 This is a person’s name. 
21 An Estonian slang expression meaning sa physically strong person wearing short haircut, 

who is expected to be involved in criminal activity. 

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privacy and rights relating to personality. 
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However,  if  the  defendant  does  not  disclose  facts,  but  creates  an  impression,  he 

knows the facts, this is treated as a moral judgment (Decision of the National Court no. 

3-2-1-161-05,  §  12).  Unjustified  moral  judgement  may  be  caused  by  its  merely 

inappropriate expression (Decision of the National Court no. 3-2-1-161-05, § 12).  

Another  issue,  is  whether  s  factual  statement  defamatory  or  not  and,  this  is 

obviously  a  matter  of  fact.  It  is  important  to  notice,  that  “the  expressed  factual 

statements  must  be  taken  as  they  are,  that  the  court  must  in  case  of  dispute  establish 

what  the  defendant  has  expressed  taken  form  a  reasonable  person’s)  standpoint.  It  is 

irrelevant  what  the  person  expressing  the  statement  actually  meant.”  (Decision  of  the 

National  Court  no.  3-2-1-161-05,  §  11).  For  instance,  allegation,  that  the  claimant 

disclosed  the  former  KGB  agents  to  the  Estonian  security  police  for  the  sake  of 

obtaining a residence permit for himself, may be defamatory (3-2-1-73-07, § 15). 

By contrast, court review of a value judgement depend on both the actual grounds 

as  well  as  on  the  person  being  so  evaluated.  The  court  has  explained  that,  the  “Value 

judgement  defaming  the  person  is  to  be  ruled  by  the  court  as  defaming  the  person’s) 

honour if the person does not give reason (no ground) for such evaluation [...]” (3-2-1-

63-02, § 7). „In defining whether there was a moral damage the court must take account 

of  that  the  minister  as  a  member  of  public  life  had  itself  under  high  public  attention. 

Therefore defamation of a member of a public life in relation to his life in public may 

result in moral damage only when the court treats that the untrue data disseminated in 

his respect had been especially defamatory for his honour and good name” (3-2-1-123-

97). 

If  the  factual  data  disclosed  defames  the  claimant,  the  defendant  bears  burden  of 

proof.  However,  if  the  facts  are  not  defamatory,  but,  in  the  view  of  the  claimant  still 

violates  some  other  personal  right,  then  the  burden  of  proof  that  the  facts  are  wrong 

vests in the claimant (Decision of the National Court no. 3-2-1-161-05, § 13). 

Violation  of  personal  rights  presumes  non-monetary  damage,  but  this  does  not  in 

itself mean a right for the compensation in money, since the court case and decision of 

the  court  may  be  sufficient  remedy  for  the  negative  consequences  of  the  defamation 

(Decision of the National Court no. 3-2-1-11-04). It may be also sufficient for the court 

to declare the defendant’s) behaviour illicit (Decision of the National Court no. 3-3-1-

44-06).  

In case of untrue factual statement the claimant may good general state of health the 

court to order the defendant to refute its statement. This is however not possible in case 

of insult and the claimant may not ask for pardon. The National Court explained that the 

court may not order the defendant to ask for pardon, but voluntary request for pardon 
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privacy and rights relating to personality. 
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may  be  relevant  in  deciding  on  the  monetary  compensation  for  the  caused  moral 

damages (Decision of the National Court no. 3-2-1-17-05, § 28-29). 

The  National  Court  has  ruled  it  is  generally  sufficient  to  prove  the  circumstances 

giving rise for the right to moral damages. The amount of the damages is established in 

the discretion of the court under Article 127 (6) of the Estonian Law of Obligations Act 

and  Article  233  (1)  of  the  Estonian  Civil  Procedure  Code  (decision  of  the  National 

Court no. 3-2-1-19-08, § 13). 

As  a  general  rule,  courts  prefer  no  to  satisfy  the  claims  for  moral  damages  and, 

when satisfied, the amount of the damages are in the range of 1.000 to 7.500 EEK, in 
rare cases up to 30.000 EEK (15.6466 EEK = 1 EUR).22 

Article 5 (1) of the Compensation for Damage Caused by State to Person by Unjust 

Deprivation  of  Liberty  Act  sets  forth  that  compensation  in  an  amount  of  the  minim 

seven  daily  wages  shall  be  paid  for  each  twenty-four  hour  period  during  which  the 

person was unjustly deprived of liberty. It should be noted however that in the order no. 

3-3-1-32-06,  §  23  the  National  Court  hinted  this  provision  may  be  unconstitutional, 

because  the  lump  sum  amount  is  fixed  and  does  not  allow  for  review  of  every  given 

case.  

2. RULES OF CONFLICT 

For  determining  the  applicable  law  in  cases  of  violation  of  privacy  or  personality 

rights, reference must be made to the provisions of the Estonian International Private 

Law  Act  of  2002.  The  rules  to  be  taken  into  consideration  are  the  articles  comprised 

between 50 and 54. There is no specific piece of legislation for violations of these rights 

through the media. Therefore, these cases will remain under the general system of non-

contractual obligations. 

Art.  50  of  the  Estonian  International  Private  Law  Act  sets  out  the  general  rule.  

According to this rule, in cases of non-contractual obligations originating from unlawful 

acts, the Estonian Courts will apply the law of the State where the act that gave rise to 

the damage occurred.  

However, if the consequences are not clear in the State where the act that gave rise 

to the damage took place, the Law of the State where the consequences of the act or the 

incident  are  evident  will  be  applied.  The  latter  Law  will  only  be  applied  if  this  is 

22  Margit  Vutt,  MItterahalise  kahju  hüvitamise  nõuded  halduskohtus,  Tartu:  2007,  online: 

http://www.riigikohus.ee/vfs/651/MittevaraliseKahjuHyvitamineHalduskohtus5.pdf, p 22 

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privacy and rights relating to personality. 
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requested by the injured party, that is to say the victim of the unlawful act. Accordingly, 

the situation of the victim is favoured, the victim having the option to choose, in these 

specific cases, the Law that is the most favourable to his interests. 

Art.  52  of  the  Law,  for  its  part,  provides  for  the  possibility  of  restricting  the 

consequences  that  may  arise,  in  relation  to  compensation,  by  the  fact  of  applying  a 

foreign Law. Accordingly, the application of a foreign Law may not lead the Estonian 

courts  to  order  compensation  significantly  greater  than  that  provided  for  similar 

damages  in  Estonian  Law.  Therefore,  the  lex  fori  serves  as  a  reference  law  for  the 

foreign Law that may apply in accordance with the rule of conflict of art. 50.  

In  addition  to  that  which  has  been  stated  up  until  now,  art.  53  establishes  an 

exception  to  the  points  of  connection  based  on  the  closest  links.  By  virtue  of  this 

precept, if the non-contractual obligation has a closer link with the law of a State other 

than those indicated by the foregoing rules of conflict, the Law of that other State will 

apply.  Furthermore,  art.  52,  in  its  second  section,  indicates  when  it  should  be 

understood  that  a  closer  link  exists.  In  this  connection,  the  closest  link  can  arise  in 

particular: 1) from a legal relationship or a factual connection between the parties or; 2) 

due to the fact that at the time of occurrence of the act giving rise to the damage, the 

parties are residing in the same State.  

Finally, it is of interest to point out that Estonian Law permits the limited factor of 

the  autonomy  of  will  on  the  question  of  non-contractual  obligations.  Accordingly,  in 

accordance with art. 54 of the Law, the parties may agree on the application of Estonian 

Law  always  after  the  act  giving  rise  to  the  non-contractual  liability  has  occurred. 

Therefore, the autonomy of the will of the parties, albeit acknowledged in the Law, is 

limited. In the first place, their choice is limited to Estonian Law. In the second place, 

the  choice  will  only  be  valid  if  it  is  subsequent  to  the  fact  giving  rise  to  the  [non-

contractual] liability. And in the third place, the choice of Law cannot affect the rights 

of third parties. 

3.  CASE LAW CONCERNING RULES OF 

CONFLICT 

We have no evidence of the existence of case law in this connection. 

4. SPECIALISED COURTS 

Estonian court system consists of land and administrative court as the court of first 

instance, district courts as the courts of second instance and the National Court as the 

highest court. There are no special courts in Estonia.  

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privacy and rights relating to personality. 
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Estonia is a civil law country and the court decision in civil cases does not have a 

force or precedent. The courts of first and second instance are bound by the stance of 

the National Court only in the case, where they have been given (Article 693 (2) of the 

Code of the Civil Procedure). The National Court is entitled to reverse is previous views 

(Article 19 (1) of the Code of the Civil Procedure), though such cases are not frequent. 

5. DIRECTIVE 95/46/EC 

The Data Protection Act, passed on 12 February 2003, and entered into force on 1 

October  2003,  is  the  rule  of  transposition  of  Directive  95/46/EC  of  the  European 

Parliament and of the Council of 24 October 1995 relating to the protection of natural 

persons concerning the processing of personal data and the free circulation of such data. 

However,  this  does  not  incorporate  art.  4  of  the  Directive  which  regulates  the 

application of the National Laws.  

Given the absence of this provision, and therefore, in view of nonfulfilment due to a 

lacuna of the Directive, the Romanian authorities [sic] must refer to its ordinary rules of 

conflict  in  order  to  decide  on  transborder  matters  when  the    Data  Protection  Act  is 

applied. This could mean that the scope of application of the Law could be broader than 

that provided in the Directive.  

The consequence of this fact could be the lack of recognition, on the part of other 

Member States, of the decisions issued by the Romanian Courts [sic] in application of 

the Data Protection Act when they go against the spirit of the Directive. 

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contractual obligations arising out of violations of 
privacy and rights relating to personality. 
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FINLAND23 

1. Autonomous Rules 

•  Act on the Protection of Privacy in Working Life (759/2004)  

Information on relevant legal provisions on defamation  

Criminal Code  

In  Finland,  the  libel  of  State  authorities  and  symbols  as  such  has  not  been  established  as  a 
criminal  offence.  Under  section  8  of  the  Act  concerning  the  Finnish  flag  (Statutes  of  Finland 
380/1978), a person who ruins or disrespectfully uses the Finnish flag will be sentenced with a 
fine.  

Criticism against politicians and public servants is only punishable subject to certain conditions. 
Under chapter 24, section 9, subsection 1, paragraph 1 of the Criminal Code (Statutes of Finland 
531/2000), a person who spreads false information or a false insinuation about another person 
so  that  the  act  is  conducive  to  causing  damage  or  suffering  to  that  person,  or  subjecting  that 
person to contempt, shall be sentenced for defamation. Under paragraph 2, a person who makes 
a derogatory comment on another person otherwise than in a manner referred to in subparagraph 
1 shall also be sentenced for defamation. Under section 9, subsection 2, criticism that is directed 
at  a  person’s  activities  in  politics,  business,  public  office,  public  position,  science,  art  or  in  a 
comparable public position and that does not obviously overstep the limits of correctness shall 
not constitute defamation under paragraph 2 of section 1.  

Developments in the application of criminal and civil law provisions concerning defamation 
at domestic level  

The number of persecutions, convictions and fines imposed on media companies and journalists 
have  reportedly  increased  in  defamation  cases  over  the  past  10  years  (FH-FP,  2004;  IPI-AR, 
2003).  

2. Applicable law 

The  Finnish  legislation  does  not  contain  any  provisions  on  what  law  is  to  be  applied  to non-
contractual obligations, nor are the conflict of laws rules established in customary law. 

There are some special provisions on certain questions relating to non-contractual obligations. 
Finland is bound by the Hague Convention of 1973 on Law Applicable to Products Liability. 

The Act on Competition Restrictions, section 2(4) affects the choice of law in connection with 
non-contractual  liability  for  damages.  The  section  determines  the  application  of  this  Act  on 
competition  restrictions  limiting  economic  competition  outside  Finland.  Unless  otherwise 
provided by a Decree from the Council of State, the Act shall, according to section 2(4) not be 
apply to competition restrictions limiting economic competition outside Finland in so far as it is 

23  UBC.  Particular  attention  was  paid  to  the  document  on  defamation  and  press  media  created  by  the 
Secretariat of the CDMC at the Council of Europe. CDMC (2006)007. 

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contractual obligations arising out of violations of 
privacy and rights relating to personality. 
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not directed against Finnish clients. The State Council may prescribe that the Act be extended to 
cover a competition restriction felt abroad if so required by an agreement made with a foreign 
state,  or  if  it  is  in  the  interests  of  Finland's  foreign  trade.  The  provision  in  question  shall, 
however, according to section 2(5) not apply to such measures taken by the Finnish Competition 
Authority which are covered elsewhere in the EC statutes 

Public order 

The  principle  of  ordre  public  is  regarded  to  be  in  force  in  Finland  as  a  general  principle  of 
international private law. The principle is explicitly expressed in some international conventions 
binding Finland and in national laws. 
Some  acts,  such  as  the  Marriage  Act  and  the  Inheritance  Code,  include  special  provisions  on 
internationally mandatory provisions. 

3. Transposition of the Directive  

Personal Data Act (523/1999) 

Section 4 — Application of Finnish law 

(1)  This  Act  applies  to  processing  of  personal  data  where  the 
controller is established in the territory of Finland or otherwise subject 
to Finnish law. 

(2)  This  Act  applies  also  if  the  controller  is  not  established  in  the 
territory  of  a  Member  State  of  the  European  Union,  but  it  uses 
equipment  located  in  Finland  in  the  processing  of  personal  data, 
except  where  the  equipment  is  used  solely  for  the  transfer  of  data 
through  the  territory.  In  this  case  the  controller  shall  designate  a 
representative established in Finland. 

It fully respects the Directive. 

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FRANCE24 

1. Rights to a private life and rights to press freedom in 

France 

A. Autonomous Legislation 

a. Private Life 

The French Constitution does not include the right to privacy [intimidad] and private life [vida 
privada]. The only national text alluding to the right to private life and privacy is Article 9 of 
the French Civil Code: "every person has the right to a private life"25. This article refers more to 
the respect for private life  than the “intimacy of private life”. To distinguish between the two 
terms in France, it should be noted that the right to privacy [intimidad] refers to private life only 
in matters concerning the control of personal data; according to a French expression the right to 
privacy should be seen as the “secret to private life”26. 

Article  9  of  the  French  Civil  Code  was  introduced  by  Act  70/643  of  17  July  197027.  During 
preparation of this bill, the scope of the concept was discussed; the government feeling that “we 
should not risk violating the principle of press freedom in an attempt to protect private life too 
greatly.  The  bill  tends  to  limit  the  scope  of  private  life  subject  to  legal  protection  stating  that 
only attacks on the privacy of that private life will be punished by criminal or civil means”28.  

The concept of private life is not established in law and we therefore need to have recourse to 
jurisprudence. According to jurisprudence, the concept of privacy includes: home, image, voice, 
the  fact  of  being  pregnant,  health,  sentimental  life,  postal  correspondence  (including 
correspondence  at work). Nonetheless, jurisprudence does not protect against the divulgement 
of  the  assets  of  public  persons  (such  as,  for  example,  the  head  of  a  company)  or  a  person’s 
religious persuasion. The fact that a person has divulged certain facts does not authorise them to 
be "redivulged" (the so-called “right to forgetting”). It is necessary to have the consent of the 
person for the “re-divulgement”, except when no harm is caused to the person or there exists a 
legitimate interest.  

There are two versions in case law: some that view it is as a broad concept and within private 
life include the right to a normal family life, the “right to a sex life”, “respect for acts” and even 
“respect  for  appearances”29.  This  concept  of  private  life  is  close  to  the  English  concept  of 

24  UBC.  In  particular  we  have  taken  into  account  the  document  on  defamation  and  the  media  drawn  up  by  the 
secretariat of the CDMC of the Council of Europe. CDMC (2006)007. 

26 ALVARAZ, H. “El Derecho a la intimidad en Francia en la época de la “sociedad de la información”, 
Aracucaria.  Revista  iberoamericana  de  filosofía,  política,  y  humanidades  n°  18.  Segundo  semestre  de 
2007.  
27 Loi n° 70.643, JO 19/07/1970, JCP 1970 III n°36850; add.D. 1970 L., p. 199. 
28  Speech  by  M.  J.  Pleven,  Garde  de  Sceaux,    JORF  Debates  of  the  National  Assembly,  Session  of  28 
May  1970,  pp.  2068.    [Spanish]  translation  and  text  taken  from  ALVARAZ,  H.,  “El  Derecho  a  la 
intimidad en Francia…op cit, p. 8.. 
29  “El  derecho  de  la  persona  a  ser  percibida  por  terceros  con  la  apariencia  que  ella  haya  escogido”, 
LEBRETON, G., Libertés publiques y Droits de l’homme, Paris, Armaud Collin Dalloz, 2003 7°ed, pp. 
290 and ss. 

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privacy 30. And others preferring a more limited concept, closer to the “right to privacy”. These 
are the ones who speak of “the right to keep secret the intimacy of the existence itself, for the 
purpose of not being prey to public curiosity and malice”31. 

In  France,  there  is  a  National  Commission  for  Information  Technology  and  Liberties 
(Commission Nationale de l’informatique et des libertés - CNIL) whose purpose is to safeguard 
the  protection  of  personal  data  and  private  life.  Germany,  Sweden  and  France  were  the  first 
countries to introduce an act for the protection of private life in the computer area.  

The concept of malicious denunciation in France is very similar to that of Spain. It is governed 
by  Articles  226-10  et  seq.  of  the  French  Criminal  Code.  It  consists  of  the  making  of  a 
denunciation  before  a  public  functionary  of  the  commission  of  an  offence  knowing  that 
denunciation to be false or inaccurate, for the purposes of damaging a person. It is punishable 
by five years' imprisonment and a fine of €45,000. 

The concept of slander [injuria] is established in Article R 621-2. Non-public slander against a 
person,  when  not  preceded  by  a  provocation,  is  punishable  with  a  first  degree  fine  (38e), 
provided that the veracity of the event has not been proven, in accordance with press freedom. 
By virtue of this freedom Article 29 establishes that "any insulting expressions, terms of disdain 
or invectives that do not contain the imputation of any fact is an injuria".  

It  may  be  an  offence  or  a  crime  depending  on  the  circumstances  of  the  event,  whether  it  was 
made  publicly  or  not,  whether  it  was  preceded  by  a  provocation  or  not.  A  public  insult  is 
punishable  with  a  fine  of  €12000  (Act  of  1881,  Article  33).  The  act  of  selling  T-shirts  with 
homophobic  inscriptions  over  the  Internet  was  ruled  to  be  a  public  injuria  to  homosexual 
people;  likewise,  a  dismissed  worker  was  condemned  for  having  referred  to  the  company  in 
question in her blog as an "association of thieves". 

b. Freedom of Press 

The Council of Europe, in Art. 10. 1 of the Convention for the Protection of Human Rights and 
Fundamental  Freedoms,  includes  the  freedom  to  hold  opinions  and  to  receive  and  impart 
information and ideas without interference by public authority. 

 In France press freedom was one of the achievements of the French Revolution of 1789. During 
that period the press became a social phenomenon. Article 11 of the Declaration of the Rights of 
Man recognises the right of all citizens “to print freely” their opinions.  

Following  the  restoration  of  the  monarchy  in  1814,  Article  8  of  the  Charte  du  4  juin  1814 
proclaimed  the  press  freedom  and  reaffirmed  that,  “The  French  have  the  right  to  print  their 
opinions,  in  accordance  with  the  laws  that  must  suppress  the  abuse  of  this  freedom”32. 
Nonetheless,  the  Act  of  21  October  1814  re-established  censorship  and  in  1817,  newspapers 
were subjected to a regime of authorisation. With the coming of the Second Republic in 1848, a 
very  liberal  position  was  adopted  with  regard  to  press  freedom  in  the  constitution  of  1848. 
However,  the  gradual  transformation  of  the  republican  regime  into  an  imperial  one  was 
accompanied by new attacks against press freedom. It was not until the final years of the reign 
of  Napoleon  III  and  the  period  of  the  liberal  empire,  that  the  traditions  of  liberalism  were 

30 WARREN, S.D, and BRANDEIS, L. D. The right of privacy, Harvard law review 5, 1890, vol. IV, p. 
193.  
31 MAZEAUD, H and L ; MAZEAUD J and CHABAS, F., Leçons de Droit civil. Les personnes. Paris. 
Montchrestien 1997, T. 1 Vol. 2, 8° Ed.   

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restored.  Thus  the  Act  of  11  June  1868  eliminated  censorship  and  the  requirement  for  prior 
authorisation. But this act was to have little influence  

With the coming of the Third Republic, there was doubt as to what attitude to take with regard 
to press freedom; ultimately, however, the sentiment that triumphed was that it was necessary to 
provide the press with a true statute that would guarantee its freedom. And that was precisely 
the aim of the Act of 29 July 1881. 

•  The Loi du 29 juillet 1881 

The Act of 29 July 1881 [Loi du 29 juillet 1881] on press freedom remains today the positive 
French law on the issue. From that point on censorship and prior authorization were definitively 
abolished. Likewise, the repression of press crimes was also liberalised and crimes of opinion 
were done away with. 

The  press  freedom  act  of  29  July  188133  included  the  prohibition  of  defamatory  acts  in  three 
cases,  of  which  the  one  relating  to  the  privacy  of  the  person  is  particularly  pertinent.  This 
provision is today contained in Article 35 of the Act of 29 July 1881, amended by the Order of 3 
May 194434 It reads as follows: 

“The  truth  of  the  defamatory  fact,  solely  if  it  relates  to  their  functions,  can  be  established  by 
normal  means  in  cases  of  allegations  against  established  bodies,  the  armed  forces,  public 
administrations  and  against  all  of  the  persons  listed  in  Article  31.  The  truth  of  defamatory  or 
insulting  allegations  may  also  be  established  against  directors  or  administrators  of  any 
industrial, commercial or financial enterprise that publicly seeks (investments through) savings 
and  loans.  The  truth  of  defamatory  facts  may  be  proven,  except:  a)  When  the  allegation 
concerns  the  person’s  private  life;b)  When  the  allegation  refers  to  facts  that  are  more  than  10 
years old” 

The punishments for crimes against private life are provided for in Articles R 226-1 et seq. of 
the Criminal Code. A penalty of one year's imprisonment and a fine of €45,000 is incurred for 
any wilful violation of the intimacy of the private life of other persons without prior consent for 
that  public  divulgement.  Moral  persons  may  also  be  responsible.  The  right  to  anonymity  and 
freedom of conscience and opinion are also included35. 

c. The thin line between public life, private life and press freedom 

It is becoming increasingly difficult to speak of press freedom and the right to private life and 
the issue has become confused with the right to information in the case of “public” personalities 
who may operate both in the public and the private spheres. 

These are unquestionably two different concepts since private life and public life are situated in 
different domains (C.A. Paris, 16 mars 1955, Recueil Dalloz 1955 p 255). Thus, in principle the 
legitimate  exercise  of  the  right  to  information  lies  in  the  area  of  public  life  but  it  is  often  not 
easy to disassociate the two concepts36. 

d. Right to information  

35LUCHAIRE, F., La protection constitutionnelle des droits et libertés Paris, Economica, 1987. 

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Any person may contact the CNIL to request its help in exercising his rights (especially in the 
case  of  a  refusal  of  the  right  to  access).  Any  person  may  directly  contact  a  body  to  know 
whether or not files are held on him.  

B. Judgements on the concept of private life and press freedom 

a. Nature of protection 

For French jurisprudence the right to the protection of private life derives from the concept of 
freedom established in Article 2 of the Declaration of the Rights of Man and of the Citizen and 
recognised together with the right to property, security and resistance to oppression37: 

• Décision  du  Conseil  constitutionnel  23  juillet  1999  n°  99/416.  Recueil  critique  de 
jurisprudence  et  législation  Dalloz,  Journal  Officiel  28  juillet.  Recueil  Dalloz,  2000, 
Sommaire  265,  observations  Marino.  Ibid  Sommaire  422  observations  Fatin  Rouge. 
Communication Commerce électronique 1999, n° 52, note Desgorges, Revue trimestrelle 
de droit civil (Dalloz) 1999, 725, observations Molfessis. 
• 9  novembre  1999,  n°  99/419  Recueil  critique  de  jurisprudence  et  législation,  Journal 
Officiel  16  nov.  Esta  decisión  establece  que  el  Derecho  de  cada  uno  a  la  vida  privada 
proclamada  por  el  art.  9  no  tiene  porque  partir  de  aquello  concerniente  al  estado  de  las 
personas. 
• Arrêt  de  la  chambre  criminelle  de  la  Cour  de  cassation  16  avril  1980  Recueil  Dalloz 
1981, 68, note Mestre 

b. Autonomy of the protection resulting from Art. 9 of the CC 

According  to  Article  9  the  mere  verification  of  an  attack  on  private  life  gives  rise  to  an 
entitlement for reparation: 

•  Arrêt  d’une  chambre  civile  de  la  Cour  de  cassation,  1ere,  5  novembre  1996.  Bulletin 
des  arrêts  des  chambres  civiles  de  la  Cour  de  cassation,  1,  n°  38.  Grands  arrêts  de  la 
jurisprudence  civile  par  F.  Terré  et  Y.  Laquette,  11  ed.  2000  (Dalloz)  n°  17 ;  Recueil 
Dalloz  1997,  403,  note  Laulom ;Recueil  Dalloz  1997  Sommaire  289  observations 
Jourdain; Juris classeur périodique (Semaine juridique) 1997, II, 22805 note Ravanas ; 
Juris classeur périodique 1997, I, 4025 n° 1, observations Viney ; Revue trimestrielle de 
droit civil (Dalloz) 1997, 632, observations Hauser. 

•  25 février 1997, Bulletin des arrêts de la chambre civil 1 n°73. Juris classeur périodique 

(Semaine Juridique) 1997, II, 22873, note Ravanas. 

•  6 octobre 1998, Civ 1re, Bulletin des arrêts des chambres civiles de la Cour de cassation, 
I,  n°  274,  Recueil  Dalloz  1999,  sommaire  376,  observations  Lemoland ;  Revue 
Trimestrielle de droit civile 1999, 62, observations Hauser. Esta decisión establece que 
la  divulgación  de  relaciones  mantenidas  por  una  oven  con  un  deportista  de  renombre 
constituyen una violación de la vida privada.  

c. Freedom of speech and the protection of private life 

The right to respect for private life and freedom of speech, as contained in Articles 8 and 9 the 
European Convention of Human Rights and in Art. 9 of the CC, have the same legal value. It is 

37  Art.  2  Déclaration  des  droits  de  l´homme  et  du  citoyen  “Le  but  de  toute  association  politique  est  la 
conservation des droits naturels et imprescriptibles de l’homme. Ces droits sont la liberté, la propriété, la 
sûreté, et la résistance a l’oppression».  

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therefore up to the judges to seek a suitable balance and to protect the most legitimate interest in 
each case.  

For French jurisprudence any interference into the private life of another is illicit: 

•  Arrêt d’une chambre Civil de la Court de Cassation 1er 6 de mars 1996. Recueil Dalloz 

1997, 7 note, Ravanas. 

•  Arrêt d’une chambre Civil de la Court de cassation 2e de 3 de juin 2004. Bulletin des 
arrêts des chambres civiles de la Cour de cassation, n°273 ; Recueil Dalloz 2004, 2069 
note,  Ravanas ;  Droit  de  la  famille  2004,  n°172,  note  Larribau  Terneyre ;  Revue 
trimestrielle de droit Civil (Dalloz), 2004, 489, observations Hauser, note 12 : 

« L’atteinte  à  la  vie  privée  est  indépendante  du  mode  compassionnel,  bienveillant  ou 
désobligeant sur lequel elle est ópérée ».It is considered an attack on private life regardless of 
the manner with which it is carried out and whether or not is degrading: 

•  Arrêt d’une chambre Civil de la Court de Cassation 1ere, 23 de avril 2003.  Bulletin 
des arrêts des chambres civiles de la Cour de cassation, I, n°98 ; Recueil Dalloz 200, 
1854  note  C.  Bignot  (2e  esp);  ibid  sommaire  1539,  observations  A.  Lepage ;  Juris 
classeur  périodique  (  Semaine  Juridique)  2003,  II,  10085,  note  Ravanas ;  Gazette  de 
Palais 2003, 2403, note Amson : 

« Caractérise une immixtion illicite dans la vie privée d’une personne le fait de la faire épier, 
surveiller et suivre ». The act of spying on, surveying or following a person is considered to be 
an interference on that person's private life: 

•  Arrêt d’une chambre Civil de la Court de cassation, 1ere 25 janvier 2000. Bulletin des 
arrêts  des  chambres  civiles  de  la  Cour  de  cassation  I,  n°  26 ;    Recueil  Dalloz  2000, 
sommaire 267, observations A. Lepage  

d. Freedom of information 

It is necessary to reconcile freedom of information and each person's right to have their private 
life respected: 

•  Arrêt d’une chambre Civil de la Court de cassation, 1ere, 23 avril 2003. Bulletin des 
arrêts des chambres civiles de la Cour de cassation, I, n°98 ; Recueil Dalloz 200, 1854 
note  C.  Bignot  (2e  esp);  ibid  sommaire  1539,  observations  A.  Lepage ;  Juris  classeur 
périodique  (  Semaine  Juridique)  2003,  II,  10085,  note  Ravanas ;  Gazette  de  Palais 
2003, 2403, note Amson : 

« Il n’y a pas atteinte à la vie privée lorsque les prétendues révélations ne sont que les relations 
de faits publics ou ne présentent qu’un caractère anodin ». It is considered that there is no attack 
on  the  private  life  when  the  revelations  made  by  the  press  are  accounts  of  public  facts  or  are 
harmless and irrelevant.  

•  Arrêt d’une chambre Civil de la Court de cassation, 1ere, 3 avril, 2002. Bulletin des 
arrêts  des  chambres  civiles  de  la  Cour  de  cassation  I,  n°  110 ;  Recueil  Dalloz  2001, 
316, note C Bignot ; Recueil Dalloz 2003, Sommaire 1543, observations Caron ; Juris 
classeur  périodique  (Semaine  Juridique),  I,  2003,  126  n°  11,  observations  Tricoire ; 
Gazette Palais 2003, 1040, note Toucas et Juillard ; Petites Affiches 6 mai 2002, note 
Derieux ; Commerce électronique 2002, n° 158 note A. Lepage. 

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•  23 avril 2003. Recueil Dalloz 2003, 1854, note C. Bignot (1ere esp) fait de actualité, 

officiel et notoire. 

•  Arrêt  d’une  chambre  civil  de  la  Court  de  cassation  2e  19  février,  2004.  Bulletin  des 
arrêts  des  chambres  civiles  de  la  Cour  de  cassation,  II  n°  72 ;  Recueil  Dalloz  2004, 
2596,  note  C  Bignot  (3e  esp) ;  ibid  sommaire  1633  observations  Caron ;  Gazette  de 
Palais  10/12  avril  2005,  note  Guerder  (détails  anodins  au  sujet  d’une  naissance 
princière) 

•  3  juin  2004.  Bulletin  des  arrêts  des  chambres  civiles  de  la  Cour  de  cassation  II,  n° 

272(faits publics déjà divulgués) 

•  8  juillet  2004.  Bulletin  des  arrêts  des  chambres  civiles  de  la  Cour  de  cassation  II,  n° 
388, Recueil Dalloz 2004, ir, 2694 (commentaires anodins sur le futur mariage d’une 
personnalité. Simple perturbation insuffisante) 

«Le  respect  de  la  vie  privée  peut  s’imposer  avec  davantage  de  force  à  l’auteur  d’une  œuvre 
romanesque qu’à un journaliste remplissant sa mission d’information ». Respect for private life 
can be imposed with greater solidity on the author of a novel than on a journalist exercising his 
mission of information.  

• 

•  Arrêt d’une chambre civil de la Court de cassation 1er, 9 juillet 2003. Bulletin des 
arrêts civils de la Cour de cassation I, n° 172. Recueil Dalloz 2004, sommaire 1633 
observations  Caron ;  Gazette  de  Palais  2003,  3853,  note  Guerder ;  Droit  et 
patrimoine  janvier  2004,  p.  90,  observations  Loiseau   (feuilleton  consacré  à  la 
disparition d’une couple et des ses enfants : interdiction en référé).  
In the following cases there is considered to have been no attack on the private life 
of the wife and children by a newspaper article recounting the circumstances of the 
death of the husband and father and this information only responds to the need for 
public information of a relatively “divers” event; Arrêt d’une chambre civil de la 
Court de cassation 2e, 20 novembre 2003. Bulletin des arrêts civils de la Cour de 
cassation n° 354 ; Gazette de Palais, 10/12 avril 2005, note Guerder : « ni à la vie 
privée  d’un  fonctionnaire  de  police  la  révélation  de  son  nom  dans  un  article  des 
presse relatant son inculpation ». The revelation of the name of a police official in 
a  press  article  recounting  his  denunciation  was  not  considered  to  be  an  attack  on 
his private life.  

•  Arrêt d’une chambre civil de la Court de cassation 2e, 29 avril 2004. Bulletin des 
arrêts civils de la Cour de cassation, n° 201 ; Recueil Dalloz 2004, ir, 1430 : « Mais 
le  traitement  journalistique  d’un  événement  d’actualité  dont  un  organe  de  presse 
peut légitimement rendre compte peut constituer une extrapolation non nécessaire 
à  la  information  du  public  et  un  détournement  de  l’objectif  d’information ».  But 
the  journalistic  treatment  of  a  current  event  by  a  press  organ  about  which  it 
legitimately reports may constitute an unnecessary extrapolation of the information 
to the public and a deviation from the purpose of informing.  

The  publication  of  an  article  devoted  exclusively  to  the  private  life  of  a  13-year-old  from  a 
“princière”  family,  with  no  official  function  does  not  constitute  a  current  event  and  therefore 
infringes the respect of her private life:  

•  Arrêt d’une chambre civil de la Court de cassation 2e 25 nov, 2004. Bulletin 

des arrêts de II, n° 506 ; Recueil Dalloz 2004, ir, 3197.  

e. Ways of infringing on private life. 

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 Domicile: the publication in the press of the photograph of the home of a person together with 
the name of the owner and the precise location of the dwelling constitutes an infringement of 
the respect for private life: 

•  Arrêt d’une chambre de la cour de cassation civil 2e, 5 de juin, 2003. Bulletin 
des arrêts civils de la Cour de cassation II n° 175 ; Recueil Dalloz 2003, 2461, 
note  Dreyere ;  Deffrenois,  2003,  1577  observations  Aubert ;  Gazette  Palais 
2004, sommaire 1387 observations Vray ; Droit et Patrimoine octobre 2003, p. 
83,  observations  Loiseau,  Revue  juridique  des  personnes  et  famille  (Dalloz) 
2003 11/13 note Caron. 

Previously in this regard, also:  

• 

• 

Jugement  d’un  Tribunal  de  Grand  Arrêt  de  la  Cour  européenne  des  doits  de 
l’homme  28  de  octobre  instante,  Paris  2  uin  1976,  Recueil  Dalloz  1977,  363, 
(3e esp) note Lindon, on the divulgement in the press of the home address of a 
person without his consent 
 Likewise, the dissemination of a telephone number is also considered to be an 
infringement of the private life of its owner as established by le Jugement d’un 
Tribunal de chambre correctionnelle, Briey, 15 septembre 1992; Gazette Palais 
1993, 1 201.  

•  But  it  is  not  an  infringement  of  the  person's  private  life  for  the  directory 
published by the Posts and Telegraphs to impose or establish the payment of an 
amount  for  the  person's  telephone  not  to  appear  in  the  telephone  directory,  as 
establece l’ arrêt du Conseil d’État 30 decembre 1998, Juris classeur périodique 
(Semaine Juridique) 1999, IV; 1759. 

However, although every person has the right to deny that their address or residence be known, 
this possibility cannot be used to evade compliance with their obligations or to free themselves 
from the rights of their creditors: 

•  Arrêt  d’une  chambre  de  la  cour  de  cassation  civil,  1ere  19  mars  1991 
Recueil Dalloz 1991, 568, note Velardocchio ; Revue trimestrielle de droit 
civile 1991, 499 observations Hauser.  

Civil Status. Le nom patronymique (de la familia) échappe par sa nature à la sphère de la vie 
privée 

•  Paris,  30  oct  1998,  recueil  Dalloz  1998,  ir,  259 ;  D’Affaires  1999,  165, 
observations  J.F  (nom  attribué  a  des  personnages  de  bande  dessiné),  el 
nombre atribuido a las personas de una banda designada. 

•  Le nom d’une personne en tan que moyen identification personnelle et de 
rattachement  à  une  famille  concerne  à  la  vie  privé  et  familiale  de  cette 
personne).  The  name  of  a  person  as  a  means  of  identification  and  of 
belonging to a family concerns his private and family life. Arrêt de la Cour 
européenne  des  doits  de  l’homme,  22  février,  1994,  Burghartz  c/suisse, 
serie A n° 280/B, Recueil Dalloz 195, 5 note Marguéneaud 

•  Para  los  titulos  nobilieres  la  solución  es  la  contraria.  Arrêt  de  la  Cour 
européenne des doits de l’homme 28 de octobre 1999, Pilar de la Cierva et 
a cl Espagne; Droit de la famille 2001, n° 90, note Lamy. 

•  However,  the  public  revelation  of  an  artist's  true  “patronyme”  (family 
name) accompanied by his address and home, his telephone number and the 
town  in  which  he  has  his  country  home  do  constitute  an  interference  into 

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his private life, as can be deduced from Paris, 15 de mai de 1970, Recueil 
Dalloz 1970 466, conclusions Cabannes. 

State  of  health.  A  person  has  the  right  to  oppose  remarks  on  his  state  of  health  in  an  article 
intended to arouse public curiosity and to exploit his private life for commercial purposes.  

•  Paris 9 juillet, 1980. Recueil Dalloz 1981, 72 (2e esp) note Linton 
•  The revelation in a book of facts covered by medical confidentiality and concerning 
a  dead  person  constitutes  an  attack  against  the  intimacy  of  the  private  life  of  the 
spouse and children; as may be deduced from Paris ref 13 mars 1996, Juris classeur 
périodique ( Semaine Juridique) 1996, II, 22632 note Derieux; Revue trimestrielle 
Droit  civil  1997,  499,  observations  Normand  Masiis  ,  Recueil  Dalloz  19987 
choriique 291 
Jugement  d’un  Tribunal  de  Grand  instance,  Paris  6  juin  1988,  Gazette  de  Palais 
1989, 1 , 30 ; the photographing of a comedian on his discharge from hospital is an 
attack against medical confidentiality and the person's private life. 

• 

C. Defamation 

In French law, defamation is both a tort (a civil wrong) and a criminal offence. It consists of any 
allegation of fact which constitutes an attack on the honour or reputation of a person (Article 29 
of the 1881 Press Act). If found guilty, the editor, publisher or author may be ordered to pay a 
criminal fine to the State in addition to civil damages to the aggrieved party.  

The major amendment under the Law dated 9 March 2004 was the abrogation of such a crime as 
insult against the head of a foreign state. The amendment was enacted pursuant to the relevant 
ruling of the European Court of Human Rights.  
Under the Law dated 15 June 2000 most terms of imprisonment for libel or insult were repealed.  

Jurisprudence:  Developments  in  the  application  of  criminal  and  civil  law  provisions 
concerning defamation at domestic level  

Following  the  ECtHR’s  judgment  in  the  Colombani  case  (judgment  of  25  June  2002),  the 
offence of insulting a foreign Head of State was repealed and Article 36 of the Press Law was 
abrogated in March 2004.  

No progress can be noted concerning the specific offences of protecting public institutions and 
authorities against defamation, provided in the Press Law of 1881. 

On 22 December 2004, the Senate passed legislation creating a council against discrimination 
and for equality (HALDE). Organisations fighting sexism and homophobia will be able to bring 
complaints for insult or defamation if they took place within the last five years. The new law, 
that  carries  penalties  of  prison  sentences,  brings  legislation  into  line  with  that  on  racism  and 
anti-Semitism. (RSF 23/12/04)  

Following  a  judgment  of  the  Court  of  Cassation  of  11.06.2002,  in  the  course  of  court 
proceedings in a libel case, journalists are now allowed, for their defence, to provide documents 
which would normally be covered by the rule of secrecy of preliminary investigations pending 
in other cases (such as information from preliminary investigations) (Cour de Cassation, appeal 
n° 01-85.237, 11.06.2002).  
In 2003, 422 people were convicted on cases of insult and defamation.  

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contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex III 

4. Law applicable to non-contractual obligations 

A. General rule 

Art.  3  CC  “Le  lois  de  police  et  de  sûreté  obligent  tous  ceux  qui  habitent  le  territoire.  Les 
immeubles,  même  ceux  possédés  par  des  étrangères,  son  régis  par  la  loi  française.  Le  lois 
concernant  l’état  et  la  capacité  des  personnes  régissent  les  Français,  même  résidant  en  pays 
étrangère »  The  Police  and  Security  Act  is  binding  on  all  persons  living  on  French  territory. 
Properties  [real  estate]  located  in  France,  even  if  it  belongs  to  foreigners,  is  also  governed  by 
French  law.  The  law  concerning  peoples'  status  and  capacity  governs  French  citizens  even  if 
they are living abroad. 

This  is  confused  wording  which  requires  firstly  considering  the  rules  on  tortious  [delict] 
liability,  in  the  sense  of  the  Civil  Code,  as  police  laws;  and  to  submit  to  the  criterion  of 
residence in the territory, which is also imprecise and allows for different interpretations38.  

In matters of tort [delict], jurisprudence has generally opted for the law of the place in which the 
crime  was  committed,  lex  loci  delicti,  which  corresponds  to  the  traditional  solution  of 
jurisprudence  and  legal  doctrine  since  the  Middle  Ages.  The  rule  was  consecrated  by  the 
Lautour and Luccantoni rulings of the Cour de Cassation39. 

There  are  numerous  arguments  in  favour  of  this  criterion;  it  is  the  only  neutral  criterion  of 
connection in the absence of a decisive reason for choosing the jurisdiction of the victim over 
and above that of the offender or vice versa; the consequences of crimes or quasi-crimes are of 
interest to the state of the territory on which the crime has been committed; the law of the place 
of the crime and the law of the forum frequently coincides, the court of the place in which the 
crime is committed holds jurisdiction  (Art., 46 nouveau C Processale civile and 5. 3rd Lugano 
Convention and Regulation 22/2000)  

The  Rome  II  Regulation  adopted  on  11  July  2007  which  will  apply  from  11  July  2009  also 
follows  this  traditional  solution  as  a  general  principle  but  it  should  be  noted  that  it  excludes 
attacks on private life and personality rights (Art. 1). 

B. Jurisprudence: The general principle of local law 

Therefore,  unless  otherwise  stipulated  in  international  treaties,  non-contractual  obligations  are 
governed  by  the  law  of  the  place  in  which  the  event  has  occurred  that  gave  rise  to  them.  As 
provided for in the following jurisprudence: 

•  Arrêt  d’une  chambre  civil  de  la  Cour  de  Cassation  1ere,  1  juin  1976,  Recueil  Dalloz 

1977, 257 note Monéger, Juris Classeur 1977.91, note Audit 

•  16 avril 1985, Bulletin des arrêts des chambres civiles de la Cour de cassation I, n° 114 
• 
In  the  same  sense  as  the  aforementioned:  Arrêt  d’une  chambre  civil  de  la  Cour  de 
Cassation 25 mai 1948, Dalloz 1948 357 note PLP, Juris classeur périodique (Semaine 
juridique) 1948, II, 4542, note Vasseur  

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contractual obligations arising out of violations of 
privacy and rights relating to personality. 
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•  Arrêt d’une chambre civil de la Cour de Cassation 1ere, 30 mai 1967, Recueil Dalloz 

1967 629 note Malaurie  

•  28 octobre 2003, Bulletin des arrêts des chambres civiles I, n° 219 ; Rapport annuel de 
Cour  de  cassation  p.  477 ;  Dalloz  2004,  233,  note  Delebecque;  Juris  classeur  2004,  II 
10006,  note  Lardeux ;  Responsabilité  civil  et  assurances  2004  n°  30,  note  Groutel; 
Petites affiches 23 décembre 2003, note P. Ancel 

•  Paris 16 janvier de 1997, Journal de Droit International (Clunet) 1997, 987 note Légier, 
reference to the place where the damage has occurred and where the interest being tried 
has been broken. 

In the case of a composite or complex offence, the jurisprudence refers to the search for the 
country with the closest associations with the harmed circumstance: 

•  Arrêt d’une chambre civil de la Cour de Cassation 1ere, 11 mai 1999, Bulletin des 
arrêts  des  chambres  civiles  I,  n°  153 ;  Recueil  Dalloz  1999,  sommaire  295, 
observations Audit ; Juris Classeur périodique (Semaine Juridique) 1999 II 10183, 
note  Muir  Watt ;  Revue  critique  DIPr  2000,  199,  note  Bischoff ;  Juris  Classeur 
1999 1048 note Légier  

C. Attacks on personality rights 

Specifically in attacks against personality rights, the issue becomes more complex. Classing this 
category of crimes as crimes linked to non-contractual responsibility creates some problems. 

 First  of  all,  this  type  of  crime  cannot  be  contained  in  a  uniform  category  but  diversifies  by 
virtue of the rights subject to protection (right to privacy, right to private or family life, right to 
image,  right  to  honour);  by  virtue  of  the  materials  and  technologies  used  as  a  medium  (press, 
radio, Internet, etc.) or from the point of view of the means of protection of the victims (civil, 
penal,  etc.).  This  diversity  necessarily  has  an  influence  when  it  comes  to  determining  as  a 
choice-of-law rule the place of the crime and from this point of view some flexibility needs to 
be given and other connecting factors should be taken into account such as the operative event, 
the  domicile  or  residence  of  the  victims  without  entirely  abandoning  any  classification  of  tort 
[delict] for personal status. In this regard, the use of connecting factors —associated or not with 
these choice-of-law rules— must also be recommended40. 

Classification.  Within  the  area  of  attacks  against  the  person,  the  plaintiffs  are  generally 
“spontaneously” located in the domain of the civil liability contained in Art. 9. 2. The Cour de 
Casation  has  declared  that  “the  consequences  of  an  attack  on  a  person's  private  life  or  of  the 
violation of a right he possesses to his image shall be governed by the law of the place where it 
has been committed” evoking the classification of tort [delict].  

This  choice  is  complicated  when  the  event  has  occurred  in  different  places  at  the  same  time, 
thus dispersing the place of commission. The typical case is the publication of a photographs in 
a  magazine  that  may  involve  the  photo's  being  made  in  one  place  and  the  magazine's  being 
published in another or in various places or its being printed an another place. in this case the 
damage  has  to  prevail  over  the  operative  event  and  the  conflict  is  solved  by  opting  for  the 
domicile of the defendant or his main activity. (Gaudemet Tallon sentence 1976). 

 It is also possible to award the plaintiff the possibility of opting in favour of the place of the 
establishment of the author of the attack. However the solution that most closely accords with 
reality  appears  to  be  to  consider  that  in  cases  of  attacks  by  way  of  the  press  in  which  the 

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contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex III 

dissemination causes different damage in each country, giving rise to the distributive application 
of  the  laws  of  the  different  countries  where  the  attack  has  occurred.  This  option  will  mean 
taking  into  account  the  criterion  of  local  dissemination  and  assessing  the  damage  in  each 
country separately41. In the Yasmina Aga Khan sentence of 1976, French and German law were 
applied distributively. 

 The  draft  European  Regulation  on  applicable  law  in  delict  designated  that  the  applicable  law 
was that of the habitual residence of the person harmed at the time when the crime occurred ( 
art. 7). 

French  jurisprudence  does  not  appear  to  define  offences  against  the  personality  as  an 
independent  category.  The  Cour  de  Cassation  has  not  defined  the  notion  of  the  place  of 
commission of the crime committed by way of the press, limiting itself to speaking of the place 
of  the  facts  without  further  precision  (Civ.  13  avril  1988).  When  the  underlying  jurisdiction 
faces  more  problems  of  jurisdictional  authority  than  of  legislative  authority  it  appears  to 
manifest  itself  in  favour  of  the  place  of  dissemination42,  and  as  a  result  the  applicable  laws 
multiply  when  this  dissemination  occurs  in  the  territory  of  various  states,  unnecessarily 
complicating  the  task  of  the  judges.  A  similar  consequence  can  be  avoided  by  centring  the 
indices of location on the place of residence of the victims43. 

D. Jurisprudence on non-contractual obligations, private life and press freedom 

In  jurisprudence,  therefore,  the  consequences  of  an  attack  against  privacy  or  against  the 
violation  of  the  right  to  image  are  subject  to  the  law  of  the  place  in  which  the  deeds  were 
committed. As we shall see, French jurisprudence has regularly used the criterion of the place of 
dissemination in issues of damage to personality rights via the press.  

•  Trib.  gr.  inst.  Paris  (1er  Ch)  27.04.1983  (Carolina  de  Monaco  c.  Soc.  Burda 

GmbH) rev. crit. 1983, 672;  

•  Trib. gr. inst. Paris (1er Ch) 29.09.1982 (Romy Schneider c. les Editions Heinrich 

Bauer Verlag), rev. cri. 1983, 671.  

•  Trib. gr. inst. Paris (3er Ch) 23.06.1976 (Dlle. Aga Khan c. soc. Axel Springer er 

autre), rev. crit. 1978, 132.  

•  Sobre el principio de la lex loci delicti en materia de delitos cometidos por medio de 
la prensa ver también, Cour de Cassation (1re Ch. civ.) 13.04.1988 (soc. jours de 
France c. Farah Diba), rev crit. 1988, 546, note Bourel; Juris classeur périodique 
(Semaine  juridique)  1988  II  21320  note  Putman.  En  el  mismo  sentido  Paris  13 
enero  2003,  Juris  classeur  périodique  (Semaine  juridique)  2004  II  ,  10018  note 
Chabert. 

5. Transposition  of  Directive  95/46  in  France.  The  French 

personal data protection act 

The  “Information  Technology  and  Freedoms”  act  is  one  of  the  oldest  in  the  area  of  personal 
data  protection.  In  1974,  the  disclosure  in  the  French  press  of  a  government  project  to 
interconnect  all  administrative  files,  on  the  basis  of  the  single  citizen  identification  number 
(known by the name of the project, SAFARI), aroused public debate.  

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privacy and rights relating to personality. 
JLS/2007/C4/028. Annex III 

Arising out of this controversy a commission was set up to make proposals to guarantee that the 
information technology would be developed in respect of private life and individual and public 
liberties.  In  accordance  with  the  recommendations  of  the  European  Commission,  these  were 
presented  to  the  Parliament  and  on  6  January  1978  an  act  was  passed  on  information 
technology, files and liberties, which in turn established an independent authority in charge of 
ensuring its compliance: 

•  Loi n° 78-17 du 6 janvier 1978 relative à l’informatique, aux fichiers et aux libertés. 

The issue of the protection of personal data vis-a-vis information technology was raised shortly 
thereafter at European level, first with the Agreement of the Council of Europe of 28 January 
1981, and then with Directive 95/46 of 24 October 1995.  

Thelatter, the founding text of a harmonised European legislation, was supposed to be integrated 
by each Member state into its national legislation within a period of 3 years. 
France was the last country to do so, with an act published on 6 August 2004 that profoundly 
amended the act of 6 January 1978. Without trying to justify this delay, it is partly explained by 
the fact that the French act was largely inspired by the European text and respects most of the 
contents of the Directive: 

• 

 Loi n°2004-801 du 6 août 2004 - art. 1, JORF 7 août 2004 

The “Commission National de l’informatique et des libertes” (CNIL) presented the text on 21 
February 2006. 

This delay had certain positive consequences; as a result the amended French act is considered 
to  be  one  of  the  most  modern;  particularly  because  it  was  passed  after  a  long  and  mature 
reflection, and it capitalised on all the options provided by the directive to transform the way it 
focused  personal  data  protection  and  put  its  principles  into  practice.  Notable  features  are  the 
idea  of  companies'  responsibility  in  applying  the  law  (recognition  of  the  interest  of  self-
regulation),  but  also  of  the  citizens'  responsibility  for  protecting  their  rights.  It  also  takes  into 
account all the possibilities of simplification and exemption of notification, even in the case of 
designation of a person “in charge of protection of personal data”.  

The most important development is the reestablishment of the balance between monitoring prior 
to  the  processing,  which  has  always  been  the  privileged  form  of  action  of  the  CNIL,  and 
subsequent control, especially through the hearing of complaints, inspections and —an entirely 
new feature— the exercise of the authority to sanction. 

A. Scope 

Art. 2. - La présente loi s’applique aux traitements automatisés de données à caractère 
personnel, ainsi qu’aux traitements non automatisés de données à caractère personnel 
contenues ou appelées à figurer dans des fichiers, à l’exception des traitements mis en oeuvre 
pour l’exercice d’activités exclusivement personnelles, lorsque leur responsable remplit les 
conditions prévues à l’article 5. 

Article  5.  I.  -  Sont  soumis  à  la  présente  loi  les  traitements  de  données  à  caractère 
personnel :  
1°  Dont  le  responsable  est  établi  sur  le  territoire  français.  Le  responsable  d’un 
traitement  qui  exerce  une  activité  sur  le  territoire  français  dans  le  cadre  d’une 
installation, quelle que soit sa forme juridique, y est considéré comme établi ;  

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contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex III 

2° Dont le responsable, sans être établi sur le territoire français ou sur celui d’un autre 
État membre de la Communauté européenne, recourt à des moyens de traitement situés 
sur le territoire français, à l’exclusion des traitements qui ne sont utilisés qu’à des fins 
de  transit  sur  ce  territoire  ou  sur  celui  d’un  autre  État  membre  de  la  Communauté 
européenne.  

II.  -  Pour  les  traitements  mentionnés  au  2°  du  I,  le  responsable  désigne  à  la 
Commission  nationale  de  l’informatique  et  des  libertés  un  représentant  établi  sur  le 
territoire  français,  qui  se  substitue  à  lui  dans  l’accomplissement  des  obligations 
prévues  par  la  présente  loi  ;  cette  désignation  ne  fait  pas  obstacle  aux  actions  qui 
pourraient être introduites contre lui.  

Art. 5. I. Databases of personal data are subject to this act  

1.  When  the  controller  (of  the  database)  is  established  in  France.  The  controller  of  a 
database that carries out activity in French territory in the context of an establishment, 
whatever its legal form, is considered to be established 

2.  When the controller is not established on French territory or on the territory of another 
community state and, for purposes of processing personal data makes use of equipment, 
automated  or  otherwise,  situated  on  French  territory,  unless  such  databases  are  used 
only  for  purposes  of  transit  through  this  territory  or  the  territory  of  any  other 
community state.  

B.- Conclusions 

a. The law applicable In Directive 95/46/EC  

What law applies in the case of a violation of privacy when the personal data used are gathered 
in a country other than that of the residence of the subject in question for processing and storage 
in another country if, in turn, the gathering company may be established in another country? 

Article 4 of Directive 95/46/EC deals with the applicable law. The first paragraph refers back to 
the national provisions adopted by the member states in order to transpose and apply the content 
of this Directive.  

Scope of the Directive 
The scope of Directive 95/46/EC is established in Article 3. Section 1 of this article states that 
its  provisions  shall  apply  “to  the  processing  of  personal  data  wholly  or  partly  by  automatic 
means, and to the processing otherwise than by automatic means of personal data which form 
part of a filing system or are intended to form part of a filing system”.  

Applicable law. As established in Recital 10, the purpose of the Directive is to harmonise the 
level of protection offered by the member states in their various legislation on the protection of 
privacy and thus to ensure "a high level of protection in the Community" or an “adequate level”. 
Pursuant to this objective, and Article 32 of the Directive, member states had to transpose the 
Directive  into  their  national  legislation  within a  period  of  three  years.  (Before  2008).  In  short 
the States will apply the law they have passed in transposition of the Directive to their national 
legislation  in  the  following  cases  contained  in  Art.  4  of  Directive  95/46/EC,  when  the 
processing is carried out in the context of the activities of an establishment of the controller on 
the territory of the Member State.  

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contractual obligations arising out of violations of 
privacy and rights relating to personality. 
JLS/2007/C4/028. Annex III 

We can state, although this is a somewhat confusing text44, according to Directive 95/46/EC the 
applicable  law  shall  be  that  of  the  country  in  which  the  controller  of  the  personal  data  is 
established; That is to say the country of residence of the controller of the file regardless of the 
place  of  processing  of  the  data  (lex  loci  delicti  commissi)  and  the  place  of  nationality  or 
residence  of  the  victims  of  said  processing45.  The  connecting  factor  chosen  is  the  “country  of 
location of the responsible file [sic]” and, obviously, it may not be the case, in an international 
event, that it is the court of said state that is hearing the matter. 

As  can  be  seen,  Directive  95/46/EC  does  not  apply  the  general  rule  on  non-contractual 
responsibility  which  is  the  lex  loci  delicti  Comissi  or  the  law  of  the  country  where  the  illicit 
processing  of  the  data  takes  place.  In  this  way  it  avoids  the  problems  derived  from  data 
processing  in  different  countries  and  the  consequent  concurrence  of  various  national  laws,  as 
frequently  happens  with  companies  that  process  personal  data  using  information  technology. 
This  demonstrates  that  it  is  intended  to  facilitate  the  activity  of  this  type  of  company  and 
promote free circulation of data within the community area. 

The law of the country of establishment is a criterion of application intended to reduce costs 
for  companies  and  thus  the  choice  of  this  connecting  factor  is  marked  by  an  “economic 
argument” which does not take into account the law of the country with the closest links, but 
rather  pursues  a  given  material  result  that  is  favourable  to  IT  companies  operating  in  the 
industry,  regardless  of  the  country  in  which  the  company  performs  its  activities46.  It  does  not 
take into account the principle of proximity that supposedly underlies any choice of law rule and 
rejects  criteria  such  as  that  of  the  nationality  or  residence  of  the  subject  affected  or  the 
nationality or residence of the controller of the file or the country of the physical location of the 
file.  By  doing  so,  Directive  95/46/EC  in  accordance  with  its  Recital  18,  seeks  to  ensure  that 
individuals are not deprived of the protection to which they are entitled under this Directive, by 
submitting  any  processing  of  data  by  any  person  (regardless  of  his  nationality  or  the  place  in 
which the activity is carried out) acting under the authority of a controller who is established in 
a Member State to the law of that State. This also ensures that companies do not have to inform 
themselves on the contents of all the laws of the community countries where they might carry 
out their activity.  

Furthermore,  this  is  a  choice  of  law  rule  without  an  exclusion  clause  or  escape  clause, 
establishing a rigid rule in order to favour the controller of the file 

Thus, if an IT company located in France gathers a series of data in France, Spain, Portugal and 
Italy and subsequently stores these data in Germany, all the activities of the French company are 
exclusively bound by French law, and their administrative obligations are those established by 
French  law.  Neither  Spanish,  Portuguese  nor  Italian  law  shall  apply,  even  if  data  has  been 
gathered in these countries; Nor shall German law apply, even though the data is stored in said 
country47. 

The  choice  of  the  aforementioned  connecting  factor  demonstrates  that  the  Directive  offers 
greater  concessions  to  companies  than  to  individuals,  who,  if  their  rights  are  violated,  are 

44HEREDERO  HIGUERAS,  M,  La  Directiva  Comunitaria  de  Protección  de  datos  de  Carácter 
personal, Aranzadi, Pamplona, 1997, p. 94 
45CALVO  CARAVACA  A.l,  CARRASCOSA  GONZÁLEZ  J.,  Conflicto  de  leyes  y  conflicto  de 
jurisdicción en Internet, Madrid, 2001, pp. 156-157. 
46CALVO  CARAVACA  A.l,  CARRASCOSA  GONZÁLEZ  J.,  Conflicto  de  leyes  y  conflicto  de 
jurisdicción en Internet, Madrid, 2001, pp. 159. 
47Ejemplo  tomado  de  CALVO  CARAVACA  A.l,  CARRASCOSA  GONZÁLEZ  J.,  Conflicto  de 
leyes y conflicto de jurisdicción en Internet, Madrid, 2001, pp. 161. 

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privacy and rights relating to personality. 
JLS/2007/C4/028. Annex III 

obliged to litigate in accordance with the law of the place of establishment of the controller of 
the  file  and  in  accordance  with  a  jurisdiction  with  which  they  are  probably  not  familiar. 
Economic  considerations  and  free  circulation  of  data  in  the  European  area  is  therefore  given 
precedence over protection of individual privacy.  

However, to prevent companies' getting round the applicable legislation of the states in which 
they operate and to guarantee the suitable framework of protection pursued by the Directive, if 
the  controller  of  the  file  is  established,  either  by  way  of  a  branch  or  a  subsidiary,  in  various 
member states, he must guarantee that each of his establishments complies with the legislation 
of the state in which it is located. Likewise the activities carried out in each establishment shall 
be governed by the law of the country of residence of the establishment (Recital 18 and Art. 4.1 
of the Directive) 

French Law. As we have seen, French Law will apply the French act (like the Directive) to 
the controller of the file when he lives in France. It fully complies with the Directive. 

Establishments located in third countries 

in turn, when the establishment responsible for the file is not located in a community member 
state  but  in  a  country  in  which  the  law  of  a  member  state  is  applied,  in  accordance  with  the 
standards of International Public Law, the legislation of said state will likewise apply ( Art. 4 b. 
Directive 95/46/EC) 

Along  the  same  lines,  with  the  aim  of  ensuring  that  all  activities  carried  out  within  the 
framework of the European area observe the same level of protection to the persons included in 
the  Directive;  when  the  controller  is  not  established  in  a  member  state  but  for  purposes  of 
processing personal data makes use of equipment situated on the territory of a Member State, 
unless  such  equipment  is  used  only  for  purposes  of  transit,  the  law  of  said  state  shall  apply 
(Recital 20 and Art. 4 c) Directive 95/46/EC) 

Likewise, in order to ensure the protection established in the Directive the transfer of personal 
data  of  community  citizens  to  non-community  third  countries  (insofar  as  lex  loci  delicti 
commissi  would  apply)  the  national  authorities  may  reject  that  transfer  when  it  considers  that 
the  country  does  not  offer  “an  adequate  level  of  protection”  of  privacy  (Art.  25  Directive 
95/46/CE). 

And, finally, when data processing is carried out by a third country in an EU member state, the 
criterion of location of the file is not used, but Art. 4.1 c) of the Directive might apply, referring 
to the applicable law of the member state in which the processing has been carried out (law of 
the  place  of  gathering  of  the  data,  law  of  the  place  of  its  classification,  dissemination,  etc.). 
Therefore in the case of a third country making use of a member state for processing data, the 
lex loci delicti commissi does apply. 

French  Law.  Like  the  Directive,  French  Law  stipulates  that  French  law  will  apply  when 
the controller of the file is not located in France but uses equipment located in France for 
gathering data. It therefore fully complies with the Directive. 

6. Jurisdiction 
Process Civil Code Art. 33 to 52 
Chapter I: Objective jurisdiction, Art. 33 to 41 
Chapter II: Territorial jurisdiction, Art. 42 to 48 
Chapter III: Common provisions; Art. 49 a 52  

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7. Summary  

1. Autonomous legislation: In France, the only national text alluding to the right to private life 
and privacy is Article 9 of the French Civil Code. 
The Press Freedom Act of 29 July 1881 [Loi du 29 juillet 1881] (Loi du 29 juillet 1881 sur la 
liberté de la presse)is still today the positive French law on the issue. 
2.  General  rule  Art.  CC.  There  is  no  specific  choice  of  law  rule  for  crimes  to  govern  attacks 
against private life committed by the media. 
Principal jurisprudence: Trib. gr. inst. Paris (1er Ch) 27.04.1983 (Carolina de Monaco c.  Soc. 
Burda GmbH) rev. crit. 1983, 672; Trib. gr. inst. Paris (1er Ch) 29.09.1982 (Romy Schneider c. 
les  Editions  Heinrich  Bauer  Verlag),  rev.  cri.  1983,  671;  Trib.  gr.  inst.  Paris  (3er  Ch) 
23.06.1976  (Dlle.  Aga  Khan  c.  soc.  Axel  Springer  er  autre),  rev.  crit.  1978,  132;  Cour  de 
Cassation (1re Ch. civ.) 13.04.1988 (soc. jours de France c. Farah Diba), rev crit. 1988, 546, 
note Bourel; Juris classeur  périodique (Semaine juridique)  1988 II 21320 note Putman. En el 
mismo  sentido    Paris  13  enero  2003,    Juris  classeur  périodique  (Semaine  juridique)  2004  II, 
10018 note Chabert. 
3. Transposition of the Directive: It fully complies with the Directive 
4. Jurisdiction: Process Civil Code Art. 33 to 52 

8. Bibliobraphy on Privacy and Freedom of Expression 

AGOSTINELLI, X., Le droit à l’information face à la protection civile de la vie privée. 
Libraire de l’Université d’ Aix en Provence, 1994.  
ALVARAZ, H. “El Derecho a la intimidad en Francia en la época de la “sociedad de la 
información”, Aracucaria. Revista iberoamericana de filosofía, política, y humanidades 
n° 18. Segundo semestre de 2007. 
AUDIT, B.,  Droit International Privé, 4 ed Economica. 2006, Paris. 
BEIGNIER, Droit de famille 1997 Chronique 11 (protection de la vie privée et liberté 
d’expression 
BEITZKE «Les obligations délictuelles en droit international privé », Recueil des Cours 
de La Haye 1965, vol II, p. 67 y ss. 
BIGOT,  C.  Recueil  Dalloz,  1998  Chronique  235  (droits  de  la  personnalité  et  liberté 
d’expression)  dalloz.fr 
BOUREL, P. Les conflits de lois en matière d’obligations extracontractuelles. Dalloz, 
Paris 1961 
 « Du rattachement de quelques délits spéciaux en doit international privé », Recueil des 
Cours de La Haye, 1989 II,  p. 253 
DERIEX,  E.,  Juris  classeur  périodique  (Semaine  Juridique)  1997,  I,  4053  (référé  et 
liberté d’expression) ;  « La loi du 29/07/1881 » Revue de Droit public, 1981. 
DOUAQUI,  D.  Recueil  Dalloz  2001,  Chronique  1333  (réparation  du  trouble 
médiatique) dalloz.fr 
GRIDEL, Bulletin d’information de la Cour de cassation 15 de marzo 2003 p. 11 (vie 
privée  et  liberté  d’expression  le  fond  du  droit) ;  Recueil  Dalloz  2005  Cronisse  391 
(liberté de la presse et droits de la personnalité); Mélanges Aubert, Dalloz 2005, p. 441 
(sur les arrêts CEDH des 18 de juin 2004) 

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GRIDEL Y LACABARATS, Gazette du Palais 2002, doctrine 1632 (vie privé el liberté 
de expression) 
HEREDERO  HIGUERAS,  M,  La  Directiva  Comunitaria  de  Protección  de  datos  de  Carácter 
personal, Aranzadi, Pamplona, 1997. 
KAYSER, P. La protection de la vie privée, 2 ed. PUAM, Economica, 1990. 
LACABARATS,  Bulletin  d’information  de  la  Cour  de  cassation15  mars  2003,  p.  18 
(vie privé et liberté de expression : les actions en justice) 
LEBRETON, G., Libertés publiques y Droits de l’homme, Paris, Armaud Collin Dalloz, 
2003 7°ed, pp. 290 y ss. 
LOUSSOUARN,  Y,    BOUREL,  P.,    ET  DE  VAREILLES  SOMMIERES,  P.,  Droit 
International privée, Dalloz,  8 ed. Paris 2004. 
LUCHAIRE, F., La protection constitutionnelle des droits et libertés Paris, Economica, 
1987 
MAZEAUD,  H  y  L ;  MAZEAUD  J  y  CHABAS,  F.,  Leçons  de  Droit  civil.  Les 
personnes. Paris. Montchrestien 1997, T. 1 vol. 2, 8° ed.   
MALLET  POUJOL,    Recueil  Dalloz  2002,  Chronique  2420  (droit  de  la  information) 
dalloz.fr 
 MAYER,  P.,    Y    HEUZÉ,  V.    Droit  International  privé,  Montchrestien,  9  ed,  2007, 
Paris. 
NITARD, E., La vie privée de las personnes célèbres. Thése, Paris II, 1987. 
RAVANAS, Recueil Dalloz 2000 Chronique 1502, dalloz.fr 
RAVANAS, Recueil Dalloz 2000, Chronique 459 (liberté d’expression et protection des 
droits de la personnalité) dalloz.fr 
RIGAUX, F., «Le concept de la vie privée », Annales de la Faculté de Louvain RTDB 
Tome  XLIV  ½  1984  p.2 ;  « La  protection  de  la  vie  privée  et  des  autres  biens  de  la 
personnalité »,  Bibliothèque  de  la  faculté  de  Droit  de  Louvain  Toe  XX  LGDJ,  Paris 
1990 p. 13.  
WARREN, S.D, y BRANDEIS, L. D. The right of privacy, Harvard law review 5, 1890, 
vol. IV, p. 193.  

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 GERMANY48 

1. National legislation  

a) The Constitution 

The German Constitution of 23 May 1949, does not lay down any principle directly recognising 
the  right  to  personal  and  family  privacy.  Notwithstanding,  paragraph  1  of  the  German 
Constitution  establishes  the  inviolability  of  human  dignity  and  paragraph  2  recognises  the 
guarantee of free development of personality and the inviolability of the person. 

In  spite  of  this  paragraph  10.1  recognises  privacy  of  correspondence  and  confidentiality  of 
communications and paragraph 13 establishes the inviolability of the home. For the protection 
of  privacy  in  relation  to  data  processing,  it  is  important  to  refer  to  the  finding  of  the  German 
Federal  Court  of  15  December  1983,  which  gathered  together  the  bases  of  the  content  of  the 
right to protection of data of a personal nature 

Starting  from  the  provisions  of  the  two  constitutional  principles  referred  to,  German  case  law 
has developed personality rights. A central decision was the ruling in “Leserbrief-Urteil” of the 
Supreme Court in 1954. The German Supreme Court then maintained as the judicial foundation 
of  the  ruling,  that  the  Constitution  through  its  express  recognition  of  the  right  to  respect  for 
human dignity in Art. 1.1 and the right to free development of personality, guarantees the right 
to personality as a fundamental right 

Since  then  this  universal  right  to  personality  is  recognised  as  being  fundamental  and  is  a 
freedom that can be used as a defence against all parties in Germany. Furthermore, the Supreme 
Court has repeatedly confirmed its existence. (See the Soraya case) 

The  content  and  the  scope  of  personality  right  is,  however,  not  definitively  delimited.  It  is 
considered as a single and indivisible right, from which each individual may derive personality 
protection when confronted with certain facts. Within personality rights are included the right to 
free  development  of  personality,  the  right  to  protection  against  indiscretions  and  the  right  to 
one's own image.  
In counterpoint to the universal personality right, the freedom of opinion and the freedom of the 
press is constitutionally guaranteed in Art. 5 of the Constitution  

“Each individual has the right freely to express and circulate his opinion by word of mouth, in 
writing or by images, and to distribute it in general and freely accessible sources.  The freedom 
of the press and freedom of information by radio or visual media are guaranteed. Censorship is 
not allowed.  

These rights are limited by general laws, by the provisions of regulations on the protection of 
youth and the right to personal dignity" 

Case law has been consistent, especially in the Supreme Court, in finding the fundamental right 
in  Art.  5  to  be  of  dominant  significance  in  the  Democratic  constitutional  organisation  of  the 
German Federal Republic. There is wide freedom of the press and of expression. This applies to 
political  commentaries  as  well  as  for  sensationalist  publications,  for  sport  and  for  the  field  of 
economics.  Paragraph  2  is  limited  only  by  general  laws  and  regulations  for  the  protection  of 
youth and of personal dignity. 

48UBC/Cuatrcasas 

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The constitutional positions of freedom of the press and of opinion on one hand and personality 
right on the other hand have the same weight constitutionally. (Art. 5 gives neither the one nor 
the other precedence) 

From all this it emerges: The question of whether a press publication infringes the personality 
rights of an individual is usually decided by weighing up the interests in play.  

b) The Civil Code  

The  protection  of  personality  right  that  is  constitutionally  guaranteed  is  supplemented  by 
various  laws.  For  this  purpose,  Art.  823  of  the  Civil  Code  on  illegal  activities  has  a  special 
significance. 

“  Anyone  who  unlawfully  inflicts  injury  by  falsehood  or  with  intent  against  life,  the  body, 
health, freedom, property or other rights of another person, shall be obliged to compensate them 
for the injury inflicted. 
“The same obligation applies to anyone who infringes the protection established by another law. 
By virtue of the content of the law, it is also possible to infringe it without culpability.  

Under illegal types of conduct or activity within the meaning of Art. 823 is included any illegal 
intervention  or  interference  in  the  protected  rights  of  a  third  party.  The  fundamental  right  of 
personality  is,  by  the  “Leserbrief”  ruling,  considered  to  be  an  "other  right”  in  the  understood 
meaning of the law. 

A  claim  under  Art.  823  presupposes  in  reality  that  the  interference  with  the  personality  right 
was  illegal.  There  will  be  no  illegality  when  the  expression  or  display  was  made  within  the 
framework of Art. 5.1 of the Constitution. A weighing up of all the interests is always necessary 
in this case.  

When dealing with illegality, German case law usually refers back to Art. 193 of the Criminal 
Code which rules out criminal responsibility for the press when the press acted in the exercise 
of legitimate interests. 

193  of  the  Criminal  Code:  Critical  opinions  on  scientific,  artistic  or  commercial  supplies  or 
services, as well as opinions or displays that are made in assertion or defence of rights or for the 
exercise of legitimate interests, as well as opinions and criticisms by superiors of their juniors, 
official  criticism  or  opinions  on  any  aspect  of  a  government  employee  and  similar  cases,  are 
only  liable  to  criminal  sanction  when  accompanied  by  offensive  elements  in  the  formation  of 
the opinion or expression, or under some particular circumstance  

When  there  is  an  illegal  infringement  of  personality  rights,  by  Art.  823  of  the  Civil  Code  the 
injured parties have a number of remedies available, which they can validly exercise in parallel, 
or also successively: 

-Claim of omission. 

The  most  usual  claim  is  one  pursuant  on  Art.  823  in  conjunction  with  Art.  1004  of  the  Civil 
Code (applied analogously), which is a claim of omission. Its effect is to prevent a repetition of 
the information which infringes the personality right. Under strict conditions, it establishes the 
fact  of  the  danger  of  the  act  committed  and  considers  preventive  prohibition  of  publication. 
Only false statements of fact can be prohibited. Declarations of fact are, according to many case 
law  cases,  all  circumstances,  happenings,  tasks,  situations  or  states  that  can  be  established  by 
evidence.  

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Conversely, Art. 5.5 claims of omission may not include opinions expressed that are determined 
by  elements  for  which  proof  cannot  be  brought.  Only  exceptionally  can  opinions  that  are 
expressed be banned, when they represent defamation in such a way that it seeks only to defame 
the injured party. 

-Claim for correction  

For  inaccurate  statements  Art.  823and  1104  of  the  Civil  Code  applied  analogously,  also 
provides a claim for correction. As a condition for the said claim, it is essential to demonstrate 
that what was said included false statements and that the personality right of those affected has 
been  infringed.  In  principle,  only  statements  of  facts  can  be  corrected;  the  expression  of 
opinions enjoys the protection of Art. 5 of the Constitution 

-Claims for physical damage  

By Art. 823 a claim for payment of compensation can be raised for property damage arising out 
of personality rights; the damage must be proved and must result from the illegal interference 
with personality rights  

-Claim for intangible injury  

Alongside  the  claim  for  physical  damages,  a  claim  for  intangible  damages  can  also  be 
recognised. After the Supreme Court “Herrenreiten” case in 1958, a repeatedly upheld case law 
doctrine  maintains  that  a  serious  infringement  of  personality  rights  may  also  entail  financial 
payment  by  way  of  compensation.  It  is  nevertheless  always  necessary  that  a  serious 
infringement of personality right should be involved, together with particular fault, and the need 
for recognition by payment of damages.  

f)  Law governing art and the author 

The right to one's own image as part of rights that are constitutionally guaranteed has its special 
law  in  Art.  22  of  the  regulation  governing  authors'  rights  over  graphic  works  of  art  and 
photographs, and the rights of the author. 

Images  may  be  displayed  or  published  for  exhibition  only  with  the  consent  of  the  person 
portrayed or shown in the picture. In cases of doubt, consent is understood to have been given, 
when the person portrayed receives payment for allowing the picture to be reproduced. After the 
death  of  the  person  portrayed,  a  period  of  up  to  ten  years  is  needed  for  the  consent  of  the 
relatives  of  the  person  whose  image  has  been  reproduced.  From  the  perspective  of  this  law, 
relatives include the surviving spouse or partner and the children of the person portrayed, and if 
none of them exist, the parents of the person portrayed.  

Art. 23 of the regulation governing the right of the author provides: 

The following may be exhibited without the consent required by Art. 22: 
1. Images belonging to the field of contemporary history  
2 Images in which people appear only incidentally the site a landscape or place of interest 
3. Images of gatherings, processions or similar events in which the people being portrayed were 
taking part. 
4. Images that had not been commissioned, but the distribution or exhibition of which provides 
substantial artistic interest 

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However, this authorisation does not extend to a publication or exhibition that has the effect of 
infringing  the  legitimate  interest  of  the  person  being  portrayed  or,  if  he  is  dead,  of  his 
Descendants. 

An  image  within  the  meaning  of  Art.  22.  paragraph  1,  is  any  picture  or  representation  of  a 
person that enables them to be recognised as an individual 

Art. 22 is configured in the exception-counter exception system: in principle it is permissible to 
distribute an image in accordance with the above principle only with the consent of the person 
affected  or  being  portrayed.  Art.  23  provides  an  exception  and  in  specific  cases  can  permit 
publication  of  the  image  without  authorisation.  As  a  counter  exception  paragraph  2  of  art.  23 
prohibits the publication or display, where the legitimate interests of the person portrayed (or his 
descendants if he is dead) are injured.  

The main exception from the requirement for consent in relation to infringements of personality 
rights by press publications is found in Art. 23.1.1, and affects images or pictures in the “field of 
contemporary history”. Whether a picture of a defendant can be published without his consent 
depends  in  the  first  instance  on  whether  it  can  qualify  as  "a  contemporary  history  image".  To 
simplify the application and operation of this principle, German case law in the past made use of 
the judicial concept of “the contemporary history person”. A distinction is made between people 
intrinsically  of  contemporary  and  historical  interest  and  people  incidental  to  contemporary 
historical  interest.  People  of  intrinsic  historical  interest  are  those  persons  in  public  life,  who 
because  of  their  express  social  position  (for  example  notable  politicians)  or  because  of  their 
outstanding services or worth are usually presented intentionally by the media (scientists, artists, 
sports personalities). These persons have a duty to accept routine publication of their images. 

"Persons  incidental  to  contemporary  history"  are,  conversely,  persons  who  present  public 
interest  only  by  reason  of  their  relationship  with  some  event  in  contemporary  history  (for 
example, survivors of the disaster).  

This scheme or schematic division between contemporary history persons is out of date 
(particularly since the European Court of Human Rights decision on Caroline of Monaco on 24 
June 2004). The ruling of the European Court of Human Rights in Strasbourg confirmed that the 
photos invaded the privacy of Caroline and her family. Publication had no public interest to 
justify it. The judgment contradicted another of the German Supreme Court of 1993 which, on 
the same issue, found that Princess Caroline was a "contemporary history person" . This status 
obliged her to accept the publication of photos taken in public places except for those of her 
minor children.  

The Princess appealed to Strasbourg after the German Constitutional Court ruled in 1999 that 
Princess Caroline must accept publication of photographs taken in public places, even where 
these related to scenes of her private life, because of her status as a "public figure". The German 
courts ruled in her favour about the photographs in which her children appeared, considering 
that minors should be granted greater protection.  

Nevertheless, the European Court considered that "any person, including those well-known by 
the public, should have the benefit of a legitimate expectation of protection and respect for their 
private life" and that there should be a "balance" between protection for private life and freedom 
of expression. According to the ruling, the "decisive factor" of this balance would be the 
"contribution" of the photos and the articles published to a "debate of general interest".  

Pursuant  on  the  interpretation  of  this  Court  it  is  of  fundamental  importance  to  distinguish 
between  a  report  on  facts  that  appear  in  an  article  on  a  discussion  on  political  life  in  a 
democratic society, and on the other hand, a report on the details of the private life of a person, 
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which  has no such  function. There will be no general interest when the person concerned has 
not  performed  any  official  duties  and  the  photographs  and  articles  in  question  are  about 
curiosity into their private life. 

As a response to the Strasbourg ruling, the German Supreme Court changed its case law from 
2007. Furthermore the Supreme Court considers it necessary to weigh up the fundamental rights 
that are in conflict, the rights of the person whose image is being published and the fundamental 
rights of the press. If the press were communicating a new and accurate piece of information of 
general  interest  for  public  opinion  that  would  be  decisive,  as  it  would  be  if  the  value  of  the 
information had no objective social relevance for the public. 

g)  The law of press in each länder 

Another  major  claim  for  the  individual  against  a  report  or  information  which  infringes 
personality rights is the claim for correction; this is not governed by German Federal law, but by 
the  laws  of  each  Lander.  The  reason  for  this  stems  from  the  jurisdiction  that  the  Lander  have 
over  the  press,  with  the  consequences  that  the  16  Lander  have  passed  their  own  laws  on  the 
press and the media.  

Art. 10 of the Berlin press law, for example, provides that: 

The publisher and the editor responsible for a publication are obliged to correct the publication 
concerning  the  person  or  authority.  The  obligation  extends  to  all  additional  editions  of  the 
publication in which the facts are published.  

The obligation to correct does not apply when the person or authority affected has no legitimate 
interest  in  the  publication,  when  the  scope  of  the  correction  cannot  be  balanced  out  by 
announcements that commercial traffic provides. When the correction does not exceed the scope 
of  the  offending  text,  it  is  considered  that  it  can  be  balanced  out  and  therefore  a  correction  is 
applicable.  Correction  must  be  limited  to  objective  facts,  and  may  not  have  any  sanctionable 
content.  Publication  of  the  correction  may  only  be  required  by  the  affected  parties  or  their 
representatives from the publisher or editor responsible when made as soon as possible, at most 
within three months of publication. The correction must be made in writing 

The correction must be made at the next broadcast of the programme; for printed matter it must 
be  in  the  same  part  of  the  publication,  in  the  same  typeface  as  the  offending  text  without 
insertions  or  omissions.  The  correction  cannot  be  in  the  form  of  letters  to  the  readers:  If 
correction is put into the same publication, it must be limited to objective data.  

To  avoid  groundless  claims,  a  procedure  has  been  laid  down.  On  application  by  the  affected 
party,  the  court  may  order  the  publisher  and  editor  responsible  to  publish  a  correction  in  the 
form laid down in the previous paragraph. The regulations applying to civil procedures for grant 
of a restraining order apply to this procedure. 

For  audiovisual  media  (radio  and  television)  paragraphs  1  to  5  provide  for  a  parallel  process. 
The claim for correction can be made against radio, which is responsible for the format of the 
programme broadcast. The correction must be made immediately by the same sector and at the 
same program time as the offending broadcast.  

The claim for correction must be grounded on the respect for personality rights and must give 
the affected party the chance to present their point of view on the matter. The strong power of 
the  media  in  influencing  the  formation  of  public  opinion  and  the  danger  arising  from  an 
incomplete, incomprehensible or defamatory publication determines the framing of federal law 

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which establishes as a condition that the parties that are affected by a press publication should 
have an immediate instrument to hand to make the readers aware of their position.  

Case law 

BJC1984,  no.  33,  page.  126-170.  The  right  to  self-determination  in  data  matters  arose  as  a 
response  to  the  possibility  of  large-scale  data  processing.  It  was  put  together  and  developed 
from the basis of the German Federal Constitutional Court ruling of 15 December 1983. In this 
ruling,  the  Court  devised,  based  on  general  personality  rights  contained  in  article  2.1  of  the 
Bonn Fundamental Law, the ability of the individual, arising from self-determination, to decide 
basically  for  themselves,  when  and  within  what  limits,  situations  relating  to  their  private  life 
should  be  disclosed.  This  gave  rise  to  the  need  for  establishing  judicial  mechanisms  for 
protection  of  personal  data  for  computerised  use,  not  so  much  because  of  the  strictly  private 
nature of this data, but because of the danger that utilisation of it presupposes.  

e) Defamation  

Defamation is both a criminal offence and a tort. Insults and defamation in the narrower sense 
are  defined  in  Sections  185ff.  of  the  German  Criminal  Code  (Strafgesetzbuch)  (StGB).  The 
wording is as follows:  

Section 185 Insult  
“Insult  shall  be  punished  with  imprisonment  for  not  more  than  one  year  or  a  fine  and,  if  the 
insult is committed by means of violence, with imprisonment for not more than two years or a 
fine.”  

Section 186 Malicious Gossip  

“Whoever  asserts  or  disseminates  a  fact  in  relation  to  another,  which  is  capable  of  maligning 
him  or  disparaging  him  in  the  public  opinion,  shall,  if  this  fact  is  not  demonstrably  true,  be 
punished with imprisonment for not more than one year or a fine and, if the act was committed 
publicly  or  through  the  dissemination  of  writings  (Section  11  subsection  (3)),  with 
imprisonment for not more than two years or a fine.”  

Section 187 Defamation  
“Whoever,  against  his  better  judgment,  asserts  or  disseminates  an  untrue  fact  in  relation  to 
another,  which  maligns  him  or  disparages  him  in  the  public  opinion  or  is  capable  of 
endangering his credit, shall be punished with imprisonment for not more than two years or a 
fine, and, if the act was committed publicly, in a meeting or through dissemination of writings 
(Section 11 subsection (3)), with imprisonment for not more than five years or a fine.”  

Section 188 Malicious Gossip and Defamation Against Persons in Political Life  
(1)  “If  malicious  gossip  (Section  186)  is  committed  publicly,  in  a  meeting  or  through 
dissemination of writings (Section 11 subsection (3)) against a person involved in the political 
life of the people with a motive connected with the position of the insulted person in public life, 
and  the  act  is  capable  of  making  his  public  work  substantially  more  difficult,  then  the 
punishment shall be imprisonment from three months to five years.  
(2)  A  defamation  (Section  187)  under  the  same  prerequisites  shall  be  punished  with 
imprisonment from six months to five years.”  
Section 189 Disparagement of the Memory of Deceased Persons  
“Whoever disparages the memory of a deceased person shall be punished with imprisonment for 
not more than two years or a fine.”  

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Section 190 Judgment of Conviction as Proof of Truth  
“If  the  asserted  or  disseminated  fact  is  a  crime,  then  the  proof  of  the  truth  thereof  shall  be 
considered to have been provided, if a final judgment of conviction for the act has been entered 
against the person insulted. The proof of the truth is, on the other hand, excluded, if the insulted 
person had been acquitted in a final judgment before the assertion or dissemination.”  

Section 192 Insult Despite Proof of Truth  
“The proof of the truth of the asserted or disseminated fact shall not exclude punishment under 
Section 185, if the existence of an insult results from the form of the assertion or dissemination 
or the circumstances under which it occurred.”  
Section 193 Safeguarding Legitimate Interests  
“Critical  judgments  about  scientific,  artistic  or  commercial  achievements,  similar  utterances 
which are made in order to exercise or protect rights or to safeguard legitimate interests, as well 
as remonstrances and reprimands of superiors to their subordinates, official reports or judgments 
by  a  civil  servant  and  similar  cases  are  only  punishable  to  the  extent  that  the  existence  of  an 
insult results from the form of the utterance of the circumstances under which it occurred.”  

Section 194 Application for Criminal Prosecution  
(1)  “An  insult  shall  be  prosecuted  only  upon  complaint.  If  the  act  was  committed  through 
dissemination of writings (Section 11 subsection (3)) or making them publicly accessible in a 
meeting  or  through  a  presentation  by  radio,  then  a  complaint  is  not  required  if  the  aggrieved 
party  was  persecuted  as  a  member  of  a  group  under  the  National  Socialist  or  another  rule  by 
force  and  decree,  this  group  is  a  part  of  the  population  and  the  insult  is  connected  with  this 
persecution. The act may not, however, be prosecuted ex officio if the aggrieved party objects. 
The  objection  may  not  be  withdrawn.  If  the  aggrieved  party  dies,  then  the  right  to  file  a 
complaint and the right to object pass to the relatives indicated in Section 77 subsection (2).  
(2)  If  the  memory  of  a  deceased  person  has  been  disparaged,  then  the  relatives  indicated  in 
Section  77,  par.  2,  are  entitled  to  file  a  complaint.  If  the  act  was  committed  through 
dissemination of writings (Section 11 subsection (3)) or making them publicly accessible in a 
meeting  or  through  a  presentation  by  radio,  then  a  complaint  is  not  required  if  the  deceased 
person lost his life as a victim of the National Socialist or another rule by force and decree and 
the disparagement is connected therewith. The act may not, however, be prosecuted ex officio if 
a person entitled to file a complaint objects. The objection may not be withdrawn.  
(3)  If  the  insult  has  been  committed  against  a  public  official,  a  person  with  special  public 
service obligations, or a soldier of the Federal Armed Forces while discharging his duties or in 
relation  to  his  duties,  then  it  may  also  be  prosecuted  upon  complaint  of  his  superior  in 
government  service.  If  the  act  is  directed  against  a  public  authority  or  other  agency,  which 
performs duties of public administration, then it may be prosecuted upon complaint of the head 
of  the  public  authority  or  the  head  of  the  public  supervisory  authority.  The  same  applies  to 
public officials and public authorities of churches and other religious societies under public law.  
(4)  If  the  act  is  directed  against  a  legislative  body  of  the  Federation  or  a  Land  or  another 
political  body  within  the  territorial  area  of  application  of  this  law,  then  it  may  be  prosecuted 
only with authorization of the affected body.”  
In  the  wider  sense,  Section  166  of  the  German  Criminal  Code  also  covers  insults  and 
defamation. This Section protects public peace and is worded as follows:  
Section  166  Insulting  of  Faiths,  Religious  Societies  and  Organizations  Dedicated  to  a 
Philosophy of Life  
(1) “Whoever publicly or through dissemination of writings (Section 11 subsection (3)) insults 
the content of others’ religious faith or faith related to a philosophy of life in a manner that is 
capable of disturbing the public peace, shall be punished with imprisonment for not more than 
three years or a fine.  
(2) Whoever publicly or through dissemination of writings (Section 11 subsection (3)) insults a 
church,  other  religious  society,  or  organization  dedicated  to  a  philosophy  of  life  located  in 
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Germany,  or  their  institutions  or  customs  in  a  manner  that  is  capable  of  disturbing  the  public 
peace, shall be similarly punished.”  
These legal norms have not been amended for quite some time.  

Developments  in  the  application  of  criminal  and  civil  law  provisions  concerning 
defamation at domestic level  

According  to  the  German  authorities  freedom  of  opinion  and  expression,  which  is  also 
emphasised by the European Court of Human Rights, is protected by and large by Section 193 
of  the  German  Criminal  Code  cited  above.  They  advance  that  the  latter,  in  respect  of  the 
category relating to the consideration of legitimate interests, requires thorough consideration of 
values  and  interests  in  individual  cases,  which,  based  on  the  precedents  set  by  the  Federal 
Constitutional Court, must take into account the fundamental importance of freedom of opinion 
and expression for the constitution of a democratic body politic. That particularly applies to all 
matters  of  public  interest  and  in  a  political  battle  of  opinions.  In  this  area,  the  Federal 
Constitutional  Court  accepts  an  assumption  in  favour  of  freedom  of  opinion  and  expression. 
Based on this precedent, derogatory utterances may be permissible in this area and, in view of 
the overexposure, catchy, even strong wording must be accepted unless it appears excessive in a 
particular case based on the facts and circumstances. This precedence accorded to the freedom 
of opinion and expression may, however, be limited depending on the individual circumstances 
of the case if so-called malicious insult is involved where the focus is not on the matter itself but 
rather on the defamation of a person or if claimed facts are clearly, or in the offender’s view, 
untrue. Based on this jurisdiction, freedom of expression, freedom of the press and freedom of 
artistic  expression  are  afforded  extensive  protection  in  the  interpretation  and  application  of 
penal provisions relating to insult and defamation.  
In 2003 15,311 people were convicted for insult, 142 for malicious gossip, 145 for defamation; 
1  person  was  convicted  for  malicious  gossip  and  defamation  against  a  person  in  political  life, 
and 5 for the disparagement of the memory of a deceased person.  

2. Applicable law  

General rules on extra-contractual obligations. No specific rules exist.  

The  main  source  of  the  German  private  international  law  is  the  Einführungsgesetz  zum 
Bürgerlichen Gesetzbuche (EGBGB - Law applying the Civil Code), in particular articles 3 to 
46.  Notwithstanding,  article  3.  2  of  the  EGBGB  establishes  that  the  provisions  of  legal 
instruments  of  the  European  Community  and  of  international  agreements  that  are  directly 
applicable in Germany take precedence over this law in their respective fields of application. 
Alongside  the  EGBGB,  there  are  also  conflict  of  laws  rules  in  other  fields  of  German 
legislation,  specifically 
the 
Insolvenzordnung 
Einführungsgesetz zum Versicherungsvertragsgesetz (EGVVG - Law on insurance policies). 

Insolvency  Law)  and 

(InsO - 

the 

in 

Article 40 of the EGBGB provides that claims for damage and injury from illegal actions shall 
be governed in principle by the legislation of the country in which the illegal action took place. 
Nevertheless, the injured party may require that the law of the country in which the illegal act 
took effect should apply. If, at the time the liability arose, both parties are habitually resident in 
the same country, the law of that country will apply, as that is the specific point of connection.  
In all cases, the parties, by application of article 42 the EGBGB, can elect which law is to apply 
after the fact that gave rise to the liability  

When  the  infringement  of  personality  rights  crosses  borders  (for  example  a  French  person 
proceeds against a publication in Germany) the question of applicable law goes back to Art. 40 

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EGBGB.  Article  40  of  the  EGBGB  provides  that  claims  for  damage  and  injury  from  illegal 
actions shall be governed in principle by the legislation of the country in which the illegal action 
took place. Nevertheless, the injured party may require that the law of the country in which the 
illegal act took effect should apply. If, at the time the liability arose, both parties are habitually 
resident in the same country, the law of that country will apply, as that is the specific point of 
connection. 
Article  41  of  the  EGBGB  allows  substitution  of  applicable  law  by  another  which,  because  of 
special circumstances, has much closer links with the events.  

Claims subject to the law of the other State, may not be effective insofar as  
1. 
2. 

they clearly have objectives other than a measure of compensation for the injured party  
they conflict with German Federal Republic agreements on rules of legal liability 

It may be observed that injured parties have a right to opt for and may request, that instead 
of the law of the place in which the claim was raised, the law of the state in which the injury 
occurred should apply instead. This is often the place of habitual residence of the injured party, 
and particularly each place in which the broadcast was made. In reality, the law applicable in the 
place of broadcast will apply only when injury arises in each of the broadcast zones (patchwork 
system). Where this happens in a number of states, the injured party has the right to opt to claim 
damages in each state but the claim must be limited to the injury suffered in each state. For the 
correction  claim,  prevailing  opinion  holds  that  the  law  of  the  place  that  the  action  took  place 
will apply, that is to say, the place of publication.  

Right of option. In spite of the foregoing, the injured party may require that the law of the state 
in which the injury was suffered should apply.  

Law  of  the  place  of  residence:  If  the  party  responsible  and  the  injured  party  have  the  same 
residence at the time of the event giving rise to liability, then the law of the place in which they 
reside  shall  apply.  For  associations,  companies,  and  legal  entities  it  will  be  the  place  of  their 
principal establishment or in the case of a branch, the place in which it is located.  

General law. Art. 40.3  
Finally,  article  40.3  of  the  EGBGB  limits,  as  a  special  preserve  of  general  law,  the  scope  of 
claims for compensation for illegal actions.  
Claims  lodged  with  a  foreign  jurisdiction  cannot  be  relied  upon  in  so  far  as  they  do  not 
substantially  exceed  the  appropriate  compensation  for  the  injured  party,  and  are  intended  for 
purposes  other  than  compensating  the  injured  party  or  conflict  with  provisions  of  the  law  of 
liability of an Agreement of which Germany is a signatory. 

Case law  

Law  applying  the  Civil  Code  (the  version  of  the  law  of  21  May  1999).  Art.  40,  illegal  acts. 
German  law  has  a  ubiquity  rule  to  link  infringements  of  rights  of  personality  caused  by  the 
media.  Its  case  law  considers  that  the  place  in  which  the  publication  appeared  (generally  the 
publisher's head office) is the determinant of place, together with the various places in which it 
was put on sale (place of distribution). 

•  OLG Hamburg 8.12.1994, NJW RR 1995, 790, (792 y ss) 
•  OLG Manchen 17.9.1986 IPRspr. 1986, no. 142  
•  OLG Hamburg 4.8.1998 (divorce of the Prince of Hanover) IPRspr. 1988/43 

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3. Jurisdiction of the Courts  

Objective  judicial  competence  to  deal  with  claims  on  negligence,  correction,  liability  and 
compensation belongs to the civil courts. Civil proceedings are followed. Alongside the general 
jurisdiction of the debtor, in the press sector there is also established what is known as "forum 
shopping".  Art.  21  of  the  Legislation  governing  civil  procedure  establishes  that  for  claims  on 
unauthorised  actions,  the  court  within  whose  jurisdiction  the  action  took  place  has  judicial 
competence  

From  this  it  follows  that  claims  for  the  protection  of  what  is  referred  to  as  civil  rights  could 
validly be lodged where the publication is usually distributed 

The  forum  shopping  has  no  application  for  the  correction  procedure,  for  which  the  general 
principle of making a claim in the place of publication or broadcasting applies.  

4. Transposition of the Directive  

The  Federal  law  on  data  protection  was  adopted  on  18  May  2001,  and  published  in  the 
Bundesgesetzblatt I. No. 23/2001, p. 904 on 22 May. 

This law applies both to the public and private sectors. All landers (except Sacasen and Bremen) 
have adopted their own rules for applying the Directive.  

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GREECE49 

1. National legislation 

a)  Greek Constitution 

Article  9  par.  1  of  the  Greek  Constitution  provides  that:  “The  private  and  family  life  of  the 
individual is inviolable”. 

b)  Civil Code  

Article  57  of  the  Greek  Civil  Code  provides  that:  “A  person  who  has  suffered  an  unlawful 
infringement on his personality has the right to claim the cessation of such infringement as also 
the non-recurrence thereof in the future. A claim for compensation, according to the provisions 
about tort, is not excluded”. 

Article 59 of the Greek Civil Code provides that: “Following the petition of the person infringed 
and after taking into consideration the kind of the infringement, the Court with its decision may 
also condemn the liable person to satisfy the moral damage of the person infringed”. 

In  relation  to  infringement  of  the  personality  through  the  press,  Law  1178/1981  on  “Civil 
liability  of  the  press”,  as  amended  and  in  force  today,  provides  for  a  fine  of  at  least  30,000 
Euros  for  the  newspapers  published  in  Athens  and  Thessalonica  and  at  least  6,000  Euros  for 
those  published  in  the  rest  of  the  country  upon  a  publication  that  infringes  a  person’s  honour 
and reputation. Said minimum fines are 300,000 and 90,000 Euros respectively with regard to 
television channels and radio stations. 
Especially for the infringement of personal privacy, Law 2472/1997 “Personal Data Protection 
Act” may also apply. Said law provides in Article 23 that anyone, who in breach of the personal 
data regulatory framework, causes material or moral damage, is liable for damages in full. 

In light of the above, the Greek Civil Code recognizes an all-inclusive, comprehensive right of 
personality of natural persons. This protection encompasses compensation for the victim, thus 
going beyond the protection of Constitutional Law, which, strictly speaking, protects the person 
from state rather than from private intrusion. On purpose, the Greek Civil Code does not define 
the exact perimeters of the concept of personality, thus allowing expansion of the concept as the 
fabric and mores of society change. It is generally said that personality encompasses all the 
tangible and intangible elements, which constitute one’s physical, emotional, intellectual, moral, 
and social existence. The Greek Civil Code grants a general action for the protection of one’s 
personality against any “unlawful” intrusion, invasion, or infringement. The action is available 
even against a defendant who is not, or is incapable of being, at fault, and may result in a 
prohibitory or mandatory injunction. If at fault, the defendant may be forced to pay monetary 
compensation or make other reparation for moral damage and may be sued under general tort 
law for damages. Special provisions are in force regulating the infringement of personality 
through the press and the case of infringement of privacy through the processing of personal 
data. 

c)  Courts decisions 

49UBC. Special attention was paid to the document on libel and the press and media prepared by the Secretariat of 
the CDMC [Spanish contemporary music broadcasting centre] for the Council of Europe. CDMC (2006)007. 

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•  Decision No 1143/2003 of the Supreme Court if Greece ruled that: 

The Court can freely decide upon the amount of the awarded compensation based on the 
principle of “common sense”. 
The infringement of personality establishes legal liability even if committed by negligence. 
•  Decision No 391/2006 of the Supreme Court if Greece ruled that liability cannot be 
established if the infringement of personality is1 committed through a lawful act. 

•  Decision  No  816/2007  of  the  Supreme  Court  ruled  that  even  though  the  law  provides 
for  minimum  fines  in  cases  of  personality  infringement  through  the  press,  the  Courts 
may  award  lesser  amounts  based  on  the  constitutional  principle  of  “justice  and 
proportionality”. 

 d) Information on relevant legal provisions on defamation  

Penal Code  

The law provides for criminal liability for insult and defamation.  

Pursuant  to  Art.361(1)  of  the  Penal  Code  (“PC”)  “insult”  is  a  criminal  offence  punished  with  a 
maximum  one-year  imprisonment  and/or  a  pecuniary  penalty  of  150  -  15,000  Euro  (Art.57  PC). 
“Unprovoked criminal insult” is punished with a minimum three-month imprisonment (Art.361A(1) 
PC) and when it is committed by two or more persons the penalties are higher - minimum six-month 
imprisonment (Art.361A(2) PC).  

Defamation  is  punished  with  a  maximum  two-year  imprisonment  and/or  a  pecuniary  penalty 
(Art.362 PC). Aggravated defamation is punished with imprisonment of at least three months (Art. 
363  PC),  to  which  a  pecuniary  penalty  can  be  added.  The  offender  can  also  be  punished  with 
deprivation of his/her civil rights.  

Defamation of a public limited company (“anonymi eteria” – “AE”) is punished with imprisonment 
of up to a year or with a pecuniary penalty (Art.364(1) PC), while aggravated defamation of an AE 
is necessarily punished with imprisonment (Art.364(3)).  

Defamation of deceased persons is punished with imprisonment of up to six months (Art.365 PC)  

Charges for the aforementioned crimes can be brought only if there is a prior complaint filed by the 
victims (Art.368 (1) PC). There are limitations to the defendant’s right of appeal against a criminal 
court decision which are set out in Art.489 Criminal Procedure Code and are relative to the severity 
of  the  punishment  and  the  type  of  court  involved.  These  limitations  apply  to  all  criminal  court 
decisions regardless of whether the crime concerned was defamation or insult.  

The law provides for more severe sentences in cases of libel and defamation of public officials than 
of ordinary citizens. Defamation of the President of the Republic and of the Parliament is punished 
with  imprisonment  of  not  less  than  three  months  (Arts.157(3)  and  168(2)  PC).  Insult  to  local 
authority council members is punished with imprisonment of up to two years (Art.157(3) PC). These 
punishments may also be accompanied by dismissal from public office where applicable (Art.157(4) 
PC). Defamation of a foreign Head of State is punished with imprisonment (Art.153(1)b PC).  

Journalists  can  invoke  the  notions  of  proof,  good  faith  and  public  interest  in  their  defence  against 
charges of insult or defamation. According to the Art.366(1) PC, defamation is not punished where it 
is based on true information, though punishment for insult is not excluded even if the intent to insult 
is proven beyond reasonable doubt (Art.366(3) PC).  

Disapproving  criticism  of  scientific,  artistic  or  professional  work,  or  criticism  as  part  of  the 
fulfilment of lawful duties, the exercise of lawful authority or the protection of a right or some other 
justified interest, do not constitute an unlawful act (Art.367(1) PC), unless they contain aggravating 
elements of aggravating defamation or an apparent intention to insult. (Art.367(2)b PC).  

Provisions dealing with Defamation are also contained in the Civil Code (“CC”).  

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Art.920  CC  (“Defamatory  rumours”)  provides  that  persons  who  intentionally  disseminate  false 
information  which  can  be  damaging  to  someone  else  are  liable  to  compensate  the  person  harmed 
(plaintiff).  

In addition, pursuant to Art.57 CC (“right to personality”) a person whose personality is unlawfully 
offended has the right to demand the withdrawal of the offensive act and it’s non-repetition in the 
future. Compensation may also be sought cumulatively.  

Art.59 CC (“Damages for Mental Distress”) provides that based on a claim by the plaintiff the court 
may also award damages for mental distress or order the public revocation of the offensive material. 
The  defendant’s  obligation  to  compensate  the  plaintiff  is  also  prescribed  in  Arts.919  (“offence  to 
public decency”) and 932 (“damages for mental distress” in cases of unlawful acts) CC. Moreover, 
pursuant to the Law 1178/1981 on Civil Liability of the Press (as amended) media owners and chief 
editors  may  be  held  liable  to  compensation  as  well  as  for  damages  for  mental  distress  for  injury 
inflicted to the plaintiff’s personality, irrespective of whether that was done knowingly or whether 
the  editor  of  the  offensive  publication  was  known  to  them.  The  minimum  sum  for  mental  distress 
damages in this case is 29,347 Euro.  

Finally, Art.681D of the Civil Procedure Code (“CPC”) provides a special procedure for all disputes 
concerning  offensive  publications  or  broadcasts,  which  is  much  speedier  than  the  standard  civil 
procedure – the court hearing must take place within a maximum of 30 days from the filing of the 
complaint  and  the  decision  must  be  issued  within  a  maximum  of  one  month  from  the  day  of  the 
hearing.  

Developments  in  the  application  of  criminal  and  civil  law  provisions  concerning 
defamation at domestic level  

According to RSF, the number of cases brought against journalists for libel was still rather high 
and sometimes resulted in very heavy fines (RSF-AR, 2004).  
There  have  been  some  recent  instances  where  the  provisions  concerning  the  crimes  of 
defamation and insult were examined by the ECtHR in the light of Arts.6 and 10 ECHR.  
For instance, on 27.05.2004, in the Rizos and Daskas case, concerning newspaper publications 
containing  allegations  about  certain  prosecutors,  the  ECtHR  reviewed  the  special  civil 
procedure  followed  pursuant  to  Art.681D  CPC  and  held  that  there  was  no  violation  of  Art.6 
EHCR.  However,  in  this  case  Greece  was  found  in  violation  of  Art.10  ECHR,  because  the 
ECtHR considered that there had not been a reasonable balance between the restrictions on the 
applicants’  right  to  freedom  of  expression  and  the  legitimate  aim  pursued  (ECtHR,  Press 
Release, 27.05.2004).  
The Greek authorities also draw attention to the case of Pasalaris and Idryma Typou S.A., which 
was  declared  inadmissible  by  the  ECtHR.  The  case  involved  the  defamation  of  a  public 
prosecutor  and  in  the  decision  reference  was  made  inter  alia  to  the  fact  that  the  fine  involved 
was not considered disproportionate and to the need to preserve the credibility of the judiciary.  

Finally,  concerning  the  decriminalization  of  offences  of  defamation  and  insult,  it  should  be 
mentioned  that  until  today  there  hasn’t  been  any  relevant  legislative  initiative,  nor  is  it 
envisaged for the near future.  

2. Applicable law 

Greek national law is the basic source of Greek private international law. The basic provisions 
are found in the Civil Code (article 4 to 33), although there are also provisions in other laws, 
such as law 5960/1933 on cheques (articles 70 to 76). The concept of law also includes bilateral 
and  multinational  agreements  ratified  by  Greece,  which  apply  in  the  same  way  as  Greek 
national law. 

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The law applying to liabilities arising from an injury is the law of the state where the injury took 
place (article 26 of the Civil Code).  

The law applying to liabilities arising from unjust enrichment is the law of the state most closely 
connected with it according to the specific circumstances of the case.  

General law: 

If  Greek  private  international  law  (conflict  of  laws  procedures)  establishes  that  foreign  law 
should  apply,  but  its  application  clashes  with  the  fundamental  moral  values  set  out  in  Greek 
general law (article 33 of the Civil Code), the Greek court, when it hears the case in question, 
will  not  apply  the  relevant  provision  of  foreign  law,  although  it  may  apply  the  other  foreign 
provisions (negative function). If, on the other hand, when such a provision has been excluded 
there  are  remains  a  legal  vacuum  in  the  foreign  law,  it  will  be  filled  by  applying  Greek 
legislation (positive function).  

One  way  of  protecting  the  interests  of  general  Greek  legislation  is  to  adopt  direct  application 
laws.  These  laws  govern  questions  of  particular  importance  for  legal  interrelationships  within 
the state and are also applied directly by Greek courts in cases with an international element that 
cannot be resolved by applying Greek private international law. 

Case law: 

According  to  article  25  of  the  Greek  Civil  Code,  the  law  which  applies  to  obligations  arising 
from  tort  is  the  law  of  the  state  in  which  the  wrongdoing  was  committed.  In  other  words 
applying law is the law of the state where the infringement took place. 
Decision No 1143/2003 of the Supreme Court: of Greece deals with the issue of infringement 
taking place in Greece and abroad simultaneously and ruled that in such case Greek Courts have 
jurisdiction and Greek Law is applicable.   

3. Transposition of the Directive  

Implementation Law 2472 on the Protection of individuals with regard to the processing of 
personal data (this is in Greek only) 

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Hungary50 

1. SUBSTANTIVE LAW 

Inherent rights are protected in Hungarian legal system in various levels and by different means. 
The term “inherent rights” covers a wide group of personal privacy and personality rights that 
are detailed below. 

The Hungarian Constitution protects the inherent rights in general.  

Section 54. § states that in the Republic of Hungary everyone has the inherent right to life and to 
human  dignity.  No  one  shall  be  arbitrarily  denied  of  these  rights.  No  one  shall  be  subject  to 
torture  or  to  cruel,  inhuman  or  humiliating  treatment  or  punishment.  Under  no  circumstances 
shall anyone be subjected to medical or scientific experiments without his prior consent.  

Section  59.  §  sets  forth  that  in  the  Republic  of  Hungary  everyone  has  the  right  to  the  good 
standing  of  his  reputation,  the  privacy  of  his  home  and  the  protection  of  secrecy  in  private 
affairs and personal data. 

Furthermore, Section 61. § lays down that in the Republic of Hungary everyone has the right to 
freely  express  his  opinion,  and  furthermore  to  access  and  distribute  information  of  public 
interest. the Republic of Hungary recognizes and respects the freedom of the press. 

The  Act  on  Civil  Code  (Civil  Code)  gives  more  detailed  description  of  inherent  rights  and 
enumerate  in  Sections  75-83.  §,  with  a  non-exhaustive  listing,  the  following  major  types  of 
violation of inherent rights such as: 

- 
- 
- 
- 
- 
- 
- 
- 
- 
- 
- 

breach of the principle of equal treatment, 
violation of the freedom of conscience, 
unlawful deprivation of personal freedom, 
injury to body or health, 
contempt for or to insult the honour, integrity or human dignity of an of private persons, 
right to bear a name, 
protection against defamation, 
misuse of the likeness or the recorded voice of another person, 
violation the sanctity of mails, 
breaching the privacy of business secrets, 
violation of private dwellings and premises used by legal persons protected by law. 

Pursuant to Section 79. § if a daily newspaper, a magazine (periodical), the radio, the television, 
or a news service publishes or disseminates false facts or distorts true facts about a person, the 
person  affected  shall  be  entitled  to  demand,  in  addition  to  other  actions  provided  by  law,  the 
publication of an announcement to identify the false or distorted facts and indicate the true facts 
(rectification).  The  rectification  shall  be  published  within  eight  days  of  receipt  of  the  relevant 
demand  in  the  case  of  daily  papers,  in  the  next  issue  of  a  periodical  or  a  news  service  in  the 

50 Dr. Zsolt Füsthy and the University of the Basque Country. 

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same manner, or (also within eight days) at the same time of the day if the defamation had been 
broadcast over radio and television. 
Under Section 84. § a person whose inherent rights have been violated shall have the following 
options when instituting a legal action, depending on the circumstances of the matter concerned: 

demand a court declaration of the occurrence of the infringement, 
demand  to  have  the  infringement  discontinued  and  the  perpetrator  restrained  from 

a) 
b) 
further infringement; 
c) 
demand  that  the  perpetrator  make  restitution  in  a  statement  or  by  some  other  suitable 
means  and,  if  necessary,  that  the  perpetrator,  at  his  own  expense,  make  an  appropriate  public 
disclosure for restitution; 
d) 
demand  the  termination  of  the  injurious  situation  and  the  restoration  of  the  previous 
state  by  and  at  the  expense  of  the  perpetrator  and,  furthermore,  to  have  the  effects  of  the 
infringement nullified or deprived of their injurious nature; 
e) 
law. 

file charges for punitive damages in accordance with the liability regulations under civil 

If the amount of punitive damages that can be imposed is insufficient to mitigate the gravity of 
the  actionable  conduct,  the  court  shall  also  be  entitled  to  penalize  the  perpetrator  by  ordering 
him to pay a. fine to be used for public purposes. The above provisions shall also apply if the 
infringement occurred through the publication of an illegal advertisement.  

As regards the role of mean in this system, Sections 2. § and 3. § of the Act No. II). of 1986 on 
Press  describe  that  the  function  of  the  press  is  to  give  authentic,  accurate,  quick  and  genuine 
information to the public. While exercising the freedom of the press, the press shall not commit 
a crime, call up someone to commit a crime, shall not offend public morality and the inherent 
rights of other people. 

 In  so  far  as  judicial  practice  is  concerned,  we  turn  to  a  couple  of  decisions  of  the  Hungarian 
Supreme Court. The abbreviation “BH” covers the periodical called “Judicial Resolutions” (in 
Hungarian: Bírósági Határozatok”). We summarize the lessons drawn from judgements in two 
groups: (i) judgements rendered in ordinary infringement cases and (ii) judgements rendered in 
rectification cases: We do so because the experience collected from ordinary infringement cases 
would be reliable also in rectification cases should the infringement had been committed in a. 
press release. We tried to focus on the most recent cases and judgements rendered in the past 
few years. 

1.  Judgements in Ordinary Infringement Cases: 

-  The  opinion  of  a  historian  on  a  ceremony  organized  to  commemorate  a 

historical event does not provide basis for protection of personality, regardless 

of  its  value  and  content.  The  court  is  not  authorized  to  decide  in  historical, 

social or political debates (BH 2006.210.). 

- 

If, in their charge against the plaintiff on the basis of suspicion of a crime, the 

defendant uses a term that would unjustifiably offend the same, breach of good 

reputation,  honour  of  human  dignity  cannot  be  established  even  if  the  penal 

procedure  did  not  result  in  the  establishment  of  the  criminal  responsibility  of 

the plaintiff (BH 2004.357.).  

-  Forming a negative opinion or judgement concerning public persons is not to be 

considered  as  a  breach  of  personal  rights  even  if  exaggerated  or  it  reflects 

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passionate  emotions.  People  participating  in  public  have  to  accept  that  their 

political  opponents-  especially  at  the  time  of  elections-  will  form  a  critical 

opinion on their activities and person, and will inform the public accordingly. 

Public people will have to accept all opinions and critics that cast a bad light on 

them. (BH 2004.104.). 

2.  Judgements in Rectification Cases 

-  The  party  whose  personal  rights  were  breached  may  claim  moral 

compensation  in  the  course  of  retraction.  Retraction  shall  not  cover 

solatium.  Non-monetary  damage  may  be  ascertained  with  the  general 

rules of liability of damage (BH 2006.318.). 

-  No  rectification  is  required  if  the  medium  involved  publishes  truthful 

information  on  the  facts  established  in  the  course  of  administrative 

procedure before the completion thereof (BH 2004.273.). 

-  A  medium  (editorial  board) 

is  under  obligation 

to  publish  a 

counterstatement  (carry  out  a  rectification)  in  the  case  of  paid 

advertisements  as  well,  if  those  contain  an  untruthful  statement  (BH 

2000.441.). 

-  Press law liabilities cannot be evaded by means of publishing untruthful 

statements  regarding  the  facts  as  reference  to  the  presumptions 

(opinions) of others. – In the case if an action seeking the remedying of a 

mistake committed by the press, it is the respondent that has to prove the 

verity of the published statements (BH 2000.241.). 

-  No  correction  needs  to  be  published  in  the  press,  if  the  press  reports 

accurately on a disciplinary decision made according to the proceedings 

regulated by the procedural provisions of law (BH 2002.432.). 

-  A press organ cannot be obliged to check the reality of the state of affairs 

presented at the press conference; the press release does not violate the 

presumption of innocence and the rights pertaining to the personality of 

it reports in accordance with what was said at the press conference held 

by  the  police  that  there  are  criminal  procedures  under  way  because  of 

similar crimes committed in other areas of the country in addition to the 

procedure being the subject of the press conference against the plaintiff 

against whom the procedure was started (BH 2002.51.). 

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-  The  press  is  not  acquitted  of  the  legal  consequences  of  handling  facts 

untruthfully,  if  previously  it  reported  accurately  on  the  facts  (BH 

2002.392.). 

2. RULES OF CONFLICT 

With  regard  to  the  rule  of  conflict  that  is  applicable  in  cases  of  violation  of  privacy  and 

personality  rights,  we  must  have  recourse  to  Decree-Law  No.  13  of  1979  on  International 

Private Law.  

Art. 32 of the Decree-Law includes the general rule of conflict relating to non-contractual 

liability. This article provides as follows: 

“(1) The law applicable at the place and time of the activity or omission causing damage 
shall  apply  to  the  liability  for  damage  caused  outside  contracts,  unless  this  Law-Decree 
provides otherwise.  
(2)  If  it  is  more  favourable  for  the  injured  party,  the  law  of  that  state  shall  apply,  in  the 
territory of which the damage came about.  
(3) If the places of residence of the party causing the damage and the injured party are in 
the same state, the law of that state shall apply.  
(4)  If,  according  to  the  law  of  the  place  of  the  activity  or  omission  causing  the  damage, 
culpability is a condition of liability, the capacity of culpability may be established either 
according to the personal law of the party causing the damage, or according to the law of 
the place of the violation of law”. 

Accordingly, in the first place the Law of the common place of residence of the perpetrator 

of the damage and of the injured party will apply. When the parties do not reside in the same 

State the non-contractual liability is regulated by the Law in force at the time and in the place 

where  the  act  or  omission  causing  the  damage  occurred.  Now,  the  Law  of  the  State  in  whose 

territory the damage occurred will apply whenever this Law is more favourable for the injured 

party. 

The solution provided by the rule of conflict gives priority to the connection of the common 

residence above all other circumstances, particularly in respect of the place where the damaging 

act occurred or the place where the damage materialised.  

At  the  same  time,  it  favours  the  position  of  the  injured  party  by  providing  for  the 

application  of  the  Law  most  favourable  to  the  interests  of  the  latter,  between  the  Law  of  the 

place  where  the  act  or  omission  giving  rise  to  the  damage  occurs  and  the  place  where  the 

damage is materialised. 

This clear intentionality to favour the position of the victim is also reflected in section four 

of art. 32. According to the provisions of this section, when, by virtue of the Law of the place 

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where  the  act  or  omission  causing  the  damage  takes  place,  liability  requires  the  culpability  of 

the  perpetrator  of  the  damage,  imputability  can  be  established  either  in  accordance  with  the 

personal  law  of  the  perpetrator  of  the  damage,  or  by  virtue  of  the  law  of  the  place  of  the 

damage. Accordingly, the possibilities of the injured party successfully to submit a claim of this 

type are increased. 

However, article 32 must be applied together with the rule for which provision is made in 

art. 34 of the said Decree-Law. According to this article: 

“(1)  A  Hungarian  court  may  not  establish  liability  for  conduct  which  is  not 
unlawful according to the Hungarian law.  
(2)  A  Hungarian  court  may  not  establish  a  legal  consequence  on  the  grounds  of 
liability for damage caused which is not recognized by the Hungarian law.” 

With this rule it is sought to avoid a situation where Hungarian Courts establish the liability 

or some of the consequences deriving from the liability when no provision is made for these in 

Hungarian Law. It is a type of control of foreign law according to the standards of the lex fori. 

In these cases the lex fori acts as a limit of the possible non-contractual liabilities demandable in 

accordance with the applicable foreign Laws by virtue of the foregoing rules of conflict. 

Although the general rule of conflict of non-contractual obligations in Hungarian Law has 

been described, when we refer to actions affecting personality rights we must have recourse to 

art. 10 of Decree-Law No. 13 of 1979 on International Private Law.  

Art.  10.1  indicates  that  the  capacity  of  individuals,  in  addition  to  the  state  and  the  rights 

attaching  to  the  individual,  are  regulated  by  personal  law.  There  is  set  out  below  the  second 

section of art. 10 which provides that: 

"The  law  applicable  in  the  place  and  at  the  time  of  the  violation  of  rights  shall  apply  to 
claims  arising  from  the  violation  of  the  rights  attached  to  one’s  person;  if,  however,  the 
Hungarian  law  is  more  favourable  for  the  person  suffering  the  injury  in  respect  of  the 
resultant compensation or indemnification, the claims shall be adjudged according to that 
law”.  

If we consider that the rights of privacy with which this study is concerned, fall within the 

Scope of application of this article - which it would be appear to be logical to consider - art. 32 

would be displaced by the necessary application of art. 10.2. Accordingly, although the general 

rule  would  continue  to  be  the  lex  loci  delicti,  that  is  to  say  the  Law  of  the  place  where  the 

personality  rights  have  been  violated,  the  question  of  the  alternatives  raised  in  art.  32 

disappears.  Therefore,  the  applicable  law  in  the  place  and  at  the  time  of  the  violation  of  the 

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privacy and rights relating to personality. 
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rights connected with the individual would only cease to be applied if it were to be established 

that  the  Hungarian  Law  (lex  fori)  is  more  favourable  for  the  injured  party  in  relation  to  the 

redress or compensation to be received. 

In this latter exception one also observes the clear intention on the part of the legislator to 

favour the position of the injured party.51. 

Accordingly,  the  rule  of  art.  10.2  is  presented  as  a  special  rule  for  cases  of  violation  of 

personality  rights,  extracting  these  cases  from  the  scope  of  application  of  the  general  rule  for 

non-contractual obligations of art. 32. 

3. CASE LAW CONCERNING RULES OF CONFLICT 

As a matter of fact we have not found any court decisions about the Conflict Laws related 

to non contractual responsibility in case of damage of personality rights. 

4. SPECIALISED COURTS 

No specialised courts exist, as such, for the resolution of this type of dispute. 

In the Republic of Hungary the judiciary system consists of courts in four instances: (i) the 

Supreme  Court,  (the  courts  of  appeal,  (iii)  the  county  (metropolitan)  courts  and  the  (iv)  local 

(districts of Budapest) courts. 

If  somebody  feels  that  his  inherent  rights  were  violated  by  a  press  release  he  may 

choose between two options to seek for remedy: (i) either to institute an ordinary legal 

action  for  infringement  of  his  personality  rights  or  (ii)  ask  for  publishing  a  correction 

and  if  it  is  refused  by  the  medium  he  may  commence  a  special  type  of  lawsuit  called 

rectification. 

Very  special  rules  shall  apply  to  the  mean  and  press  litigation,  the  so-called  rectification 

that are placed in a separate Chapter No. XXI. of the Code on Civil Proceedings. 

Common feature of both types of litigation is that the courts at second level, i.e. the county 

courts or the Metropolitan Court in Budapest, have competence as courts of first instance. This 

fact shows the importance of such lawsuits. 

In press rectification cases the special rules of the Code on Civil Proceedings shall 

so  apply  that  within  30  days  from  the  release  of  the  article  (or  in  case  of  radio  and 

51

 T. Kadner Graziano, Gemeineuropaisches Internationales Privatrecht, Tubingen, 2002. 

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television  the  date  starts  from  the  broadcasting)  the  person  concerned  has  to  ask  a 

correction from the press in a written form. If the press does not comply with it the one 

requesting  the  correction  he  can  file  a  claim  against  the  editorial  office  of  the 

newspaper,  the  broadcaster  or  the  Hungarian  News  Agency.  The  claim  shall  be  filed 

within 15 days from the deadline of the rectification obligation of the press organ. If the 

court  gives  place  to  the  claim  the  press  shall  perform  its  rectification  obligation. 

(Sections 342-346. § in Chapter XXI. of the Code on Civil Proceedings) 

5. DIRECTIVE 95/46/EC 

Art.  4  of  Directive  95/46/EC  of  the  European  Parliament  and  Council  of  24  October  1995 
relating to the protection of natural persons in connection with the processing of personal data 
and the free circulation of such data, has not been transposed very clearly in Act LXIII of 1992 
on the Protection of Personal Data and Public Access to Data of Public Interest. Art. 4/A.6 of 
the law provides as follows: 

“The  provisions  of  this  Act  shall  apply  where  a  data  controller  performing  the 
processing  of  personal  data  outside  the  territory  of  the  European  Union 
commissions,  for  the  technical  processing  of  data,  a  technical  data  processor 
having his seat or premises (branch) or residence (place of sojourn) in the territory 
of  the  Republic  of  Hungary,  or  uses  equipment  in  this  country,  except  when  the 
equipment is solely used for the transit of data through the territory of the European 
Union.  Such  data  controllers  shall  appoint  a  representative  in  the  territory  of  the 
Republic of Hungary.” 

This  rather  confusing  provision  should  be  interpreted  in  the  sense  of  article  4  of  the 

Directive,  with  the  understanding  that  the  Law  applies  when  the  entity  responsible  for  the 

processing  is  established  in  the  State  of  Hungary;  and  if  the  entity  is  not  established  in  a 

Member State, when, for the processing of personal data, it has recourse to media, electronic or 

otherwise,  situated  in  the  territory  of  the  said  Member  State,  except  where  the  said  media  are 

used solely for purposes of transit through the territory of the European Community. 

6. BIBLIOGRAPHY 

Kadner Graziano, T.: Gemeineuropaisches Internationales Privatrecht, Tubingen, 2002. 

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Ireland52 

1. SUBSTANTIVE LAW 

The right to privacy in Ireland is relatively new having been first identified only in 

1973  to  protect  marital  privacy.  Developments  have  been  slow  in  the  area  with  the 

result that, at the moment, there is no specific law of privacy in Ireland leaving plaintiffs 

to rely on various aspects of statute, common law and constitutional law to assert their 

rights.  In  recent  times,  the  adoption  of  the  European  Convention  on  Human  Rights 

(ECHR) into Irish law has strengthened the right. Today there is an ongoing debate in 

the area and the Minister for Justice, Equality and Law Reform has formed a working 

group  to  propose  a  new  statutory  privacy  law.  The  group  reported  in  2006  and  a  Bill 

was initiated in parliament (The Privacy Bill 2006). There has been some controversy 

over the Bill, especially with respect to the tension between the rights of a free press and 

privacy of individuals. Therefore, the passage of the Bill has been delayed and it is not 

clear when the proposed law will be enacted. 

As already noted there are several sources of privacy law in Ireland, and Section 2 

of the report of the Working Group on Privacy contains a comprehensive statement of 
the  current  law  in  Ireland53.  To  summarise  the  report,  there  are  three  distinct  areas  of 
protection as well as the additional protection of A8 of the ECHR as applied in Irish law 

by the European Convention on Human Rights Act 2003. 

Statutory Protection: Although a new privacy bill is making slow progress through 

the  national  legislature,  there  is  no  dedicated  statutory  protection  for  privacy  in  Irish 

law.  There  are  certain  statutes  applicable  to  aspects  of  privacy  and  these  include  Acts 

regulating broadcasting in Ireland, data protection laws and the criminal law regarding 

harassment.  

Common  Law  Protection:  Irelandhas  a  common  law  system  in  which  law  may  be 

derived from court decisions as distinct from actions of the legislature and/or executive. 

The  most  relevant  common  law  to  privacy  lies  in  the  torts  of  trespass  and  nuisance 

(relating  to  incursion  on  or  interference  with  property)  and  the  equitable  action  for 

breach  of  confidence.  It  is  accepted  that  the  common  law  does  not  adequately  protect 

privacy, particularly in the light of remote surveillance techniques. 

Constitutional  Protection:  Prior  to  the  adoption  of  the  ECHR  in  Irish  Law,  the 

52Fred Logue and the University of the Basque Country. 
53 http://www.justice.ie/en/JELR/WkgGrpPrivacy.pdf/Files/WkgGrpPrivacy.pdf 

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Constitution was regarded as the most likely basis on which Irish Courts would protect 

individual  privacy.  There  is  no  express  right  of  privacy  but  Article  40.3  obliges  the 

State to vindicate the personal rights of the citizen. The Courts have found that implicit 

in that provision are rights that are not enumerated in the Constitution. In 1973 the right 

to marital privacy was identified (McGee v) AG [1974] IR 284) and since then several 

other aspect of the Constitutional right to privacy have emerged. The problem with the 

Constitutional  protection  lies  in  the  fact  that  there  is  no  reliable  guide  to  the  scope  or 

limits to the protection afforded, giving rise to a large amount uncertainty for a person 

who believes their right of privacy has been infringed.  

There is little case law in the personal privacy area generally in Ireland with many 

cases settling. There is virtually no case law which has an international dimension to the 

infringement of privacy rights. We would refer the following:  

- Cogley v) RTE and Aherne and others v) RTE [2005] IEHC 18054. This was the 
latest  judgment  in  which  privacy  issues  were  addressed  and  involved  the  plaintiffs 

seeking  to  prevent  RTE,  the  national  broadcaster,  from  broadcasting  footage  taken  in 

Mr  and  Mrs  Aherne’s)  nursing  home  showing  alleged  mistreatment  of  residents.  The 

first case raised the issue of defamation of one of the senior nursing staff and the second 

the right to privacy of the owners of the nursing home. The judgment highlights many 

aspects of privacy law in Ireland including its derivation from the Irish Constitution and 

the balance sheet between privacy and freedom of expression. The case further explores 

the  interplay  of  privacy  law  with  defamation  law  and  the  law  of  trespass  in  Ireland.  

Ultimately, the plaintiffs in both cases did not succeed in preventing the broadcast. 

-  Julia  Kushnir  libel  settlement55.  In  this case  a  report  of  a  Moscow car  crash  in 
which  Liam  Lawlor,  a  well  known  former  Irish  politician,  was  killed  contained 

allegations  that  a  Ukrainian  national  who  was  a  passenger  in  the  car  was  a  prostitute. 

Ms Julian Kushnir, who survived the accident, was in fact a professional translator who 

was  engaged  by  Mr  Lawlor  for  the  purpose  of  assisting  in  the  negotiation  of business 

deals in Moscow. Although not named in the report she brought defamation proceedings 

in  Ireland  against  several  newspapers  which  published  the  story.  The  case  ultimately 

settled for a large sum. 

 -  Irvine  &  Others  v)  TalkSport  Ltd.  [2003]  EWCA  Civ  42356.  This  was  a  case, 
heard  before  the  English  Courts,  concerning  the  unauthorised  use  of  images  of  Eddie 

54 http://www.bailii.org/ie/cases/IEHC/2005/H180.html 
55 http://www.rte.ie/news/2007/1106/lawlorl.html?rss 
56 http://www.bailii.org/ew/cases/EWCA/Civ/2003/423.html 

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Irvine, an Irish F1 driver, which falsely represented that Mr Irvine endorsed TalkSport’s 

radio  station.  The  proceedings  were  taken  under  the  law  of  passing  off  which  is 

primarily an intellectual property action under common law. Although taken in England 

the underlying law is very similar in Ireland. This case was viewed as being significant 

since it was the first time this law was applied to false endorsement and the court held 

that Mr Irvine had a property right in the goodwill associated with his image.  

- Norris v) AG [1984] IR 3657; Norris v Ireland [1988] European Court of Human 
Rights,  application  no.  10581/8358.  This  case  was  an  (unsuccessful)  challenge  to  Irish 
laws criminalizing certain homosexual acts between males. It is interesting because the 

case  was  ultimately  brought  before  the  European  Court  of  Human  Rights  where  the 

applicant  was  successful  and  although  not  binding  on  Ireland  at  the  time  the  decision 

was viewed as contributing to the subsequent repeal of these laws. 

2. RULES OF CONFLICT 

The solution adopted by Irish Law in regard to the rule of conflict relating to non-

contractual  obligations,  has  developed  together  with  the  evolution  of  other  rights  of 

common law.  

However, the rule of double actionability forming a part of Anglo-Saxon rights was 

rejected radically in the mid 'eighties. The decision of the Supreme Court of Ireland, in 

the case Grehan v. Medical Incorporated and Pine Valley Associates (1986), criticised 

and rejected the rule of double actionability established in the case Phillips v. Eyre. The 

Supreme Court of Ireland has indicated that  

“the rule in Phillips v), Eyre… has nothing to recommend it because it is capable of 
producing  quite  arbitrary  decisions  and  it  is  a  mixture  of  parochialism  and  a 
vehicle  for  being,  in  some  casesm  unduly  generous  to  the  plaintiff  and,  in  others, 
unduly  harsh.  In  my  view,  so  far  as  choice  of  law  in  torts  is  concerned,  the  Irish 
courts should be sufficiently flexible to be capable of responding to the individual 
issues  presented  in  each  case  and  to  the  social  and  economic  dimensions  of 
applying any particular choice of law rule in the proceedings in question”. 

The Court has adopted a flexible position with respect to the rule of conflict to be 

used  in  cases  of  non-contractual  liability.  This  appears  to  defend  the  use  of  different 

rules of conflict according to the case; rules of conflict that should be selected having 

57 http://www.bailii.org/ie/cases/IESC/1983/3.html 
58http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695424&portal=hbk

m&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 

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regard to the socio-economic consequences that would involve the adoption of one rule 

or another. However, this alternative with respect to the rule of double actionability is 

not entirely satisfactory; mainly because it does not indicate the rules in question. There 

is no reference to the rule of conflict of 'division' or to the alternative solutions; nor is 

there  any  indication  of  the  significant  connections  or  links  that  should  be  taken  into 

consideration.  

Accordingly, it is possible to affirm that, dismissing the rule of double actionability, 

the rule or rules of conflict of Irish Law are a source of significant legal uncertainty. 

3. CASE LAW CONCERNING RULES OF CONFLICT  

Special  relevance  is  given  to  the  decision  of  the  Supreme  Court  of  Ireland  in  the 

case  Grehan  v.  Medical  Incorporated  and  Pine  Valley  Associates  (1986)  mentioned 
earlier, which flatly dismisses the double actionability rule59. 

Subsequently in the case An  Bord  Trachtala  v. Waterford Foods Ltd, High Court, 

25  November  1992,  there  was  a  leaning  towards  the  traditional  rule  of  double 

actionability. 

However,  also  of  considerable  interest  are  the  observations  made  by  the  Supreme 

Court    in  the  case  Shortt  v.  Ireland,  the  Attorney  General  and  British  Nuclear  Fuels 

Limited  (1997),  concerning  matters  of  international  judicial  competence  and  the 

applicable law. In this decision the court declared that: “Prima facie it is difficult to see 

how any provision of English law could make legal in Ireland injury or damage which 

would  otherwise  be  tortious  under  Irish  law.  Certainly  it  is  hard  to  see  how  any 

provision  of  UK  law  could  deprive  the  Irish  courts  of  jurisdiction  which  they  would 

otherwise have. Prima facie the relevan law would appear to be the lex loci delicti rather 

than the law of the United Kingdom”. 

4. SPECIALISED COURTS 

In the Irish legal system no courts exist for resolving disputes of the media/press. In 

practice  the  majority  of  cases  are  referred  to  the  High  Court  since  it  has  full  original 

jurisdiction  including  the  determination  of  constitutional  issues,  as  well  as  not  being 

limited in the quantum of damages it may award.  

59 P.M. North, “Reform, But Non Revolution”, R). des C)., t. 220, 1990-I), pp. 231 et seq.; 

O’Higgins, P. and P. Mc. Grath,: “Third Party Liability in the Field of Nuclear Law and Irish 
Perspective”, en http://www.nea.fr/html/law/nlb/nlb-70/007_021.pdf, p. 18. 

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Action may also be taken in the Circuit Court which may award damages up to a 

maximum of  approximately  €38K.  Judgments  are  rarely  reported  from  the  Circuit 

Court.  

5. DIRECTIVE 95/46/EC 

The transposition of art. 4 of Directive 95/46/EC of the European Parliament and of 

the Council of 24 October 1995 relating to the protection of natural persons concerning 

the  processing  of  personal  data  and  the  free  circulation  of  such  data  is  to  be  found  in 

section  3B  of  the  Data  Protection  (Amendment)  Act  2003  enacted  on  10  April  2003. 

According to this: 

“(3B) (a) Subject to any regulations under section 15(2) of this Act, this Act applies to data 
controllers in respect of the processing of personal data only if— 
(i) the data controller is established in the State and the data are processed in the context 
of that establishment, or  
(ii) the data controller is established neither in the State nor in any other state that is 
a contracting party to the EEA Agreement but makes use of equipment in the State for 
processing the data otherwise than for the purpose of transit through the territory of the 
State. 

(b) (...) 
(c)  A  data  controller  to  whom  paragraph  (a)(ii)  of  this  subsection  applies  must,  without 
prejudice  to  any  legal  proceedings  that  could  be  commenced  against  the  data  controller, 
designate a representative established in the State.” 

As  can  be  observed,  the  transposition  respects  the  provision  in  art.  4  of  the 

Directive, extending its application to that which is provided in the Community rule. 

6. BIBLIOGRAPHY 

North,  P).M.:  “Reform,  But  Non  Revolution”,  R).  des  C).,  t.  220,  1990-I),  pp.  231  et 

seq. 

O’Higgins, P. and P. Mc. Grath,: “Third Party Liability in the Field of Nuclear Law and 

Irish Perspective”, en http://www.neafr/html/law/nlb/nlb-70/007_021.pdf.   

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ITALY60 

1. SUBSTANTIVE LAW 

The Italian Constitution has no provision for a specific rule that enshrines the right of 

privacy  and  personality  rights.  However,  the  constitutional  basis  for  the  protection  of 

the  rights  of  personality  can  be  found  in  article  2  of  The  Constitution.  This  Article 

provides that “the republic recognizes and guarantees the inviolable human rights, be it 

as an individual or in social groups expressing their personality (…)”. 

This article has been interpreted by jurisprudence openly, which has made it possible 

to include within it personality rights. 

The Civil Code provides for the protection of certain personality rights. Provision is made 

for the right to physical integrity and life (art. 5), the right to the name (art. 6) and the right to 

the image (art. 10) integrated with the provisions of the law on authors rights (L. 633/41) in arts. 
96 et seq 61.  

For 

their  part,  other  personality  rights  have  found  protection 

in 

jurisprudential 

development.  We  can  emphasise  the  right  to  personal  identity  (judgment  No  3769  of  22  June 

1985,  of  the  Corte  di  cassazione),  the  right  to  health  and  the  right  to  intimacy  or  privacy 

(judgment of 27 May 1975, No 2199, of the Corte di cassazione). 

Furthermore,  defamation  is  a  criminal  offence  that  is  punishable  with  a  maximum  prison 

sentence of five years, in the case of defamation of the President. The precepts to be taken into 

account  are  arts.  278,  290,  290  bis  and  291  of  the  Criminal  Code,  which  provide  for  the 

protection of the President of the Republic, the Italian Nation, the Republic, the legislator and 

other public officials. For their part, arts. 594 and 595 of the Criminal Code, regulate libel and 

slander.  Libel  consists  of  offending  the  honour  of  a  person  who  is  present,  while  slander 

consists  of  insulting  the  reputation  of  a  person  who  is  absent.  Art.  595  also  regulates  slander 
through the press62. 

The  requirement  to  safeguard  the  honour  and  reputation  of  individuals  must  be 

compared with freedom of expression guaranteed by art. 21 of the Italian Constitution. 

In fact the Court of Appeal has declared on numerous occasions respect for the limits of 

60 Paolo Balboni, Martino Sforza and the University of the Basque Country. 
61 S. Gaetano, “La tutela civile dei diritti della personalita”, Diritto & Diritti ~ il portale giuridico 

italiano, disponible en http://www.diritto.it/materiali/civile/tut_dir_pers.html. 

62  Secretariat  of  the  Council  of  Europe:+++  “Examination  of  the  alignment  of  the  laws  on 
defamation  with  the  relevant  case-law  of  the  European  Court  of  Human  Rights,  including  the  issue  of 
decriminalisation of defamation”, Strasbourg, 2006, pp. 70-71. 

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freedom of expression (the right of reporting and the right of critique) in relation to the 

right of the honour of individuals. In relation to the right of reporting by journalists, the 

Court of Appeal has considered the same to be lawful when three conditions are met: it 

must respond to social benefit; the facts revealed must be true and; the revelations of the 

facts  must  follow  a  civilised  form  (judgment  3999/2005).  In  regard  to  the  right  of 

critique: correct language must be used and the rights of others must be respected 

2. RULES OF CONFLICT 

Italian Law No 218 on Private International Law, of 31 May 1995, provides for a 
specific rule of conflict for personality rights. Art. 24 of the Law63.  In the said article 
different  points  of  connection  are  provided  for  determining  the  law  applying  to  the 

existence and content of such rights on the one hand, and for the consequences deriving 

from  their  violation,  on  the  other.  Accordingly,  while  the  former  are  regulated  by  the 

national law of the individual, in order to identify the law applying to the consequences 

deriving  from  the  violation  personality  rights  recourse  is  had  to  the  law  applying  to 

responsibility for unlawful acts.  

Accordingly,  in  the  case  of  an  alleged  violation  of  the  personality  rights  of  an 

individual, the liability of the third party will be established in accordance with the rules 

applying  to  the  question  of  liability  for  unlawful  acts.  This  reference  leads  to  the 

application of art. 62 of the International Private Law of Italy. This article includes the 
rule of conflict applying to cases of liability for unlawful acts.64. 

In accordance with the general rule of art. 62.1 of the Law, the law applying to non-

contractual obligations originating from an unlawful act is the law of the State where it 

occurred; that is to say, the place where the damage occurred However, the person who 

has suffered the damage may request the application of the law of the State where the 

act that caused the damage occurred. 

63 art. +++ 24 Diritti della personalità "1. L'esistenza ed il contenuto dei diritti della personalità sono 
regolati dalla legge nazionale del soggetto; tuttavia i) diritti che derivano da un rapporto di famiglia sono 
regolati  dalla  legge  applicabile  a.  tale  rapporto.  2.  Le  conseguenze  della  violazione  dei  diritti  di  cui  al 
comma 1 sono regolate dalla legge applicabile alla responsabilità per fatti illeciti". 

64Art. 62 Responsabilità per fatto illecito "1. La responsabilità per fatto illecito è regolata dalla legge 
dello Stato in cui si è verificato l)evento. Tuttavia il danneggiato può chiedere l)applicazione della legge 
dello  Stato  in  cui  si  è  verificato  il  fatto  che  ha  causato  il  danno.  2.  Qualora  il  fatto  illecito  coinvolga 
soltanto cittadini di un medesimo Stato in esso residenti, si applica la legge di tale Stato." 

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Finally,  in  accordance  with  the  second  section  of  art.  62,  when  the  unlawful  act 

involves  solely  citizens  of  the  same  State,  who,  in  turn,  reside  in  that  same  State,  the 

law of the said State will apply. 

As  a  general  rule  the  point  of  connection  used  for  the  Italian  rule  of  conflict 

responds to the criterion of the place of the damage. However, in the event that the place 

where the damage occurred and the place where the act that gave rise to the damage are 

in different States, the victim of the damage may opt for the application of either of the 

two. It is observed that the Italian rule favours the position of the injured party, giving 

him  the  opportunity  to  opt,  in  these  cases,  for  the  application  of  the  rule  that  is  most 

favourable to his interests. 

The last subsection of art. 62, for its part, seeks to provide a particular response in 

those cases which, fulfilling the requirements established in the rule, would clearly be 

more  closely  connected  to  the  said  law.  It  responds,  therefore,  to  a  criterion  of 

closeness, which, in principle, favours both parties, as it will be the most familiar law 

for all the parties involved. 

3. CASE 

LAW  CONCERNING  RULES  OF 

CONFLICT (DEFICIENCY)  

No case law whatsoever has been found that applies the rule of conflict of art. 62 in 

cases of violation of personality rights through the media. 

4. SPECIALISED COURTS 

No specialised courts exist in this connection. 

5. DIRECTIVE 95/46/EC 

Section  5  of  The  Data  Protection  Code  (Legislative  Decree  No  196  of  30  June  2003  of 

Italy, which is the principal legislative act containing rules for the protection of personal data, in 

line with the provisions of art. 4 of Directive 95/46/EC of the European Parliament and of the 

Council  of  24  October  1995  relating  to  the  protection  of  natural  persons  concerning  the 

processing of personal data and its free circulation, provides that: 

“1. This Code shall apply to the processing of personal data, including data held abroad, where 
the processing is performed by any entity established either in the State’s territory or in a place 
that is under the State’s sovereignty. 

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2. This Code shall also apply to the processing of personal data that is performed by an entity 
established  in  the  territory  of  a  country  outside  the  European  Union,  where  said  entity  makes 
use in connection with the processing of equipment, whether electronic or otherwise, situated in 
the  State’s  territory,  unless  such  equipment  is  used  only  for  purposes  of  transit  through  the 
territory  of  the  European  Union.  If  this  Code  applies,  the  data  controller  shall  designate  a 
representative  established  in  the  State’s  territory  with  a  view  to  implementing  the  provisions 
concerning processing of personal data.” 

 This provision faithfully reproduces that which is provided in the Directive. 

6. BIBLIOGRAPHY 

•  Ballarino, T.: Diritto internazionale privato (2ª ed.), Padova, CEDAM, 1996. 
•  Conetti (G).), S. Tonolo and F). Vismara: Commento alla riforma del Diritto 

internazionale privato italiano. Legge 31 maggio 1995, n).218, Turín, G). Giappichelli 
Editore, 2001. 

•  Gaetano, S.: “La tutela civile dei diritti della personalita”, Diritto & Diritti ~ il portale 
giuridico italiano, disponible en http://www.diritto.it/materiali/civile/tut_dir_pers.html.  
•  Pocar (F.) et alt.: Commentario del nuovo Diritto internazionales privato, CEDAM, 1996. 
•  Secretariat of the Council of Europe: “Examination of the alignment of the laws on 

defamation with the relevant case-law of the European Court of Human Rights, including 
the issue of decriminalisation of defamation”, Strasbourg, 2006. 

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Latvia65 

1. SUBSTANTIVE LAW 

Person's  rights  to  private  life  are  first  of  all  provided  in  the  Constitution  of  the 

Republic of Latvia (Latvijas Republikas Satversme) which states the following:  

Art. 96: “Everyone has the right to inviolability of his or her private life, home and 
correspondence”. 

Art. 92: “Everyone, where his or her rights are violated without basis, has a right 
to appropriate compensation”. 

The  Constitution  of  the  Republic  of  Latvia  separately  provides  protection  of  honour  and 

dignity (reputation): 

Art. 95: “The State shall protect human honour and dignity”. 

The  Civil  Law  (Civillikums)  of  the  Republic  of  Latvia  provides  responsibility  for  moral 

injury caused by wrongful act: 

Art. 1635: “Every delict, that is, every wrongful act per se, as a result of which harm has 
been caused (also moral injury), shall give the person who suffered the harm therefrom the 
right to claim satisfaction from the infringer, insofar as he or she may be held at fault for 
such act. 
By moral injury is understood physical or mental suffering which are caused as a result of 
unlawful  acts  committed  to  the  non-financial  rights  or  non-financial  benefit  delicts  of  the 
person  who  suffered  the  harm.  The  amount  of  compensation  for  moral  injury  shall  be 
determined  by  a  court  at  its  own  discretion,  taking  into  account  the  seriousness  and  the 
consequences of the moral injury. 
If the unlawful acts referred to in Paragraph two of this Article are expressed as criminal 
offences  against  a  person’s  life,  health,  morals,  inviolability  of  gender,  freedom,  honour, 
dignity  or  against  the  family,  or  minors,  it  is  presumed  that  the  person  who  suffered  the 
harm as a result of such acts has been done moral injury. In other cases moral injury shall 
be proved by the person who suffered the harm”. 

The term act is used here within the widest meaning, including not only acts, but also the 

failure to act, that is, inaction. 

65 Linda Lejina, Ieva Roze,Guntis Lauskis and the University of the Basque Country. 

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Art.  2352:  “Each  person  has  the  right  to  bring  court  action  for  the  retraction  of 
information  that  injures  his  or  her  reputation  and  dignity,  if  the  disseminator  of  the 
information does not prove that such information is true. 
If information, which injures a. person's) reputation (honour) and dignity, is published in 
the press, then where such information is not true, it shall also be retracted in the press. If 
information,  which  injures  a  person's  reputation  and  dignity,  is  included  in  a  document, 
such document shall be replaced. In other cases, a court shall determine the procedures for 
retraction. 
If  someone  unlawfully  injures  a  person's  reputation  and  dignity  orally,  in  writing  or  by 
acts,  he  or  she  shall  provide  compensation  (financial  compensation).  A  court  shall 
determine the amount of the compensation”. 

Law On the Press and Other Mass Media (Likums Par presi un citiem masu informacijas 

lidzekliem) applies to newspapers, magazines, newsletters and other periodicals (published not 

less frequently than once every three months, with a one-time print run exceeding 100 copies), 

as  well  as  television  and  radio  broadcasts,  newsreels,  information  agency  announcements, 

audio-visual recordings, and programmes intended for public dissemination. 

Art. 7: “Information not for Publication 

(3) It is prohibited to publish the content of correspondence, telephone calls and telegraph 
messages  of  citizens  without  the  consent  of  the  person  addressed  and  the  author  or  their 
heirs. 
(4)  The  use  of  the  mass  mean  to  interfere  in  the  private  life  of  citizens  is  prohibited  and 
shall be punished in accordance with the law. 
(5)  It  is  prohibited  to  publish  information  that  injures  the  honour  and  dignity  of  natural 
persons and legal persons or slanders them”. 

Art. 21: “Retraction of False Information 
Persons  are  entitled  to  require  mass  mean  to  retract  information  published  (broadcast) 
about them if such information is not true. For other honour and dignity infringement cases 
person is entitled to require apology”. 

Art. 28: “Compensation for Injury 
Injury,  also,  moral  injury,  caused  by  a  mass  medium  to  a  natural  or  a  legal  person  by 
providing false information, slandering and injuring the honour and dignity of a person by 
the  publishing  of  data  and  information  the  publication  of  which  is  prohibited  by  law,  a 
mass media shall provide compensation to such person in accordance with the procedures 
prescribed by law”. 

Radio and Television Law (Radio un Televizijas likums) 

Art. 38: “Civil Liability for Injury 
(1) Pursuant  to  the  provisions  of  The  Civil  Law  and  other  laws  the  broadcasting 
organisation shall compensate for injuries, including moral injuries, caused to a natural or 

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legal  person  by  the  provision  of  information  in  a  broadcast  that  injures  the  honour  or 
dignity of a person, if it does not prove that such information corresponds to the truth. 
(2) A broadcasting organisation shall be exempted from the payment of compensation for 
injury  if  the  information  injuring  the  honour  and  dignity  of  a  person  is  contained  in  an 
announcement  made  by  State  and  administrative  institutions  or  officials,  as  well  as  when 
the  false  information  has  been  distributed  on  a  live  broadcast  and  the  broadcasting 
organisation did not have the possibility to influence the distribution of such information”. 

Based  on  the  described  regulation,  it  should  be  pointed  out  that  personal  privacy  and 

personality rights include rights to intimity, own image, honour and dignity and related rights. 

Particularly  person's  right  to  privacy  as  the  right  to  hide  its  private  life  from  society  to  such 

extent as the person wishes.  

Honour  and  dignity  is  the  only  aspect  of  personal  privacy  and  personality  rights  that  is 

more or less regulated by laws. 

The major problems arise with regard to such concept as person's right to intimity, its own 

image.  Until  the  last  year  there  had  been  no  court  cases  where  person  claimed  its  rights  to 

personal  privacy  and  personality,  particularly  its  rights  to  own  image.  Latest  tendencies  show 

that people have realized their rights to privacy and personality and there appear claims in the 

courts based on such rights claiming to be infringed by mass mean.  However, there is no final 

court decision adopted yet.  

Last  year  one  woman  claimed  compensation  for  moral  injury  done  by  mass  mean  when 

publishing papparacci photographs taken at the moment when she left maternity hospital with 

her  new  born  baby.  The  court  of  first  instance  satisfied  the  claim,  however,  the  appeal  court 

rejected the claim, arguing that she is awife of well known person in Latvia and that there has 

been no disproportionate interference in her private life. The Supreme Court has not jet heard 

the case. 

As it derives from the court practice the situation is different in case the picture taken and 

published infringes person's) honour and dignity. There is quite large court practice on issues of 

person's)  honour  and  dignity  infringed  by  false  information,  however,  there  is  still  an  open 

question whether person has rights to compensation for moral injury done by mass mean when 

publishing abusive opinion or true information that infringes persons honour and dignity. 

As the court practice of European Court of Human rights is binding to Latvia our 

courts  definitely  have  to  take  into  account  criteria  developed  by  ECHR  when 

interpreting  such  rights  as  right  to  freedom  of  speech  and  private  life.  However,  as 

already  mentioned  there  has  been  no  final  court  decision  on  claim  resulting  from 

infringement of personal privacy (except from honour and dignity cases). 

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6. RULES OF CONFLICT 

In regard to the rule of conflict currently existing in Estonia [sic] this is to be found 

in art. 20 of the Civil Law. According to this article:   

“Obligations not based on contract shall be adjudged, in respect of their substance 
and  consequences,  in  accordance  with  the  law  of  the  place  where  the  basis,  from 
which  the  obligation  arose,  was  created.  Obligations  arising  from  wrongful  acts 
shall be adjudged in accordance with the law of the place where the wrongful acts 
took place".  

Therefore,  no  specific  rule  of  conflict  exists  for  cases  of  violation  of  privacy  and 

personality rights. The rule for which provision is made in the second subclause of art. 

20 will be applied. According to the said article, the obligations arising from unlawful 

acts  are  regulated  by  the  law  of  the  place  where  the  said  unlawful  act  occurred. 

Therefore, the rule of lex loci delicti is applied.  

In  specific  cases  of  violations  of  privacy  and  personality  rights  through  the  press, 

problems  may  arise  with  respect  to  determining  the  place  where  the  unlawful  act 

occurred, when this does not coincide with the place of publication and the places where 

it was possible to distribute the information giving rise to the damage. The law does not 

provide any response whatsoever to the said problems, and therefore jurisprudence must 

establish the criteria to be used in each specific case for determining the lex loci delicti. 

7. CASE 

LAW  CONCERNING  RULES  OF 

CONFLICT  

We  do  not  have  any  information  whether  Latvian  courts  have  ruled  on  the 

applicable  law  to  non  contractual  obligations  with  an  international  element  in 

infringements of personal privacy and personality rights. 

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8. SPECIALISED COURTS 

In  Latvia,  there  are  no  courts  specializing  in  press/mean  litigation;  therefore, 

such cases are reviewed by common courts. 

9. DIRECTIVE 95/46/EC 

Art. 4 of Directive 95/46/EC of the European Parliament and of the Council of 24 October 

1995 relating to the protection of natural persons concerning the processing of personal data and 

the free circulation of such data, is included in section 3 of the Personal Data Protection Law 

Amended by Law of 24 October 2002: 

“(1)  This  Law,  taking  into  account  the  exceptions  specified  in  this  Law,  applies  to  the 
processing of all types of personal data, and to any natural person or legal person if: 
1) the system administrator is registered in the Republic of Latvia; 
2) data processing is performed outside the borders of the Republic of Latvia in territories, 
which belong to the Republic of Latvia in accordance with international agreements; and 
3) in the territory of the Republic of Latvia is located equipment, which is utilised for the 
processing of personal data. 
(2)  In  the  cases  referred  to  in  Paragraph  one,  Clause  3  of  this  Section,  the  system 
administrator shall appoint an authorised person who shall be responsible for compliance 
with this Law. 
(3) (…)”.  

Although  this  precept  responds  partially  to  the  provisions  of  the  Directive,  a  difference 

exists  which  merits  emphasis.  In  section  1.3  no  reference  is  made  to  the  fact  that  the 

administrators of systems used by the media, whether electronic or otherwise, located within the 

territory of Latvia must be established in non-member States. Thus, according to the provisions 

of this precept, Latvian Law could apply in those cases in which the entity responsible for the 

processing of the personal data is located in a Member State, thus going against the provisions 

of the Directive. Therefore, this fact can be considered to be a nonfulfilment of the Directive as 

it does not respect the spirit of art. 4. The expansion of the scope of application of Latvian Law 

with  respect  to  the  provisions  of  the  Directive,  could  lead  to  a  situation  where  the  decisions 

handed  down  by  Latvian  courts  in  application  of  this  Law  are  not  recognized  in  the  other 

Member States when they are contrary to the provisions of art. 4 of the Directive. 

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Lithuania66 

1. SUBSTANTIVE LAW 

Art. 22 of the Lithuanian Constitution acknowledges the right to private life on the part of 

individuals. In this connection it provides that: 

“The private life of a human being shall be inviolable.  
Personal  correspondence,  telephone  conversations,  telegraph  messages,    and  other 
intercommunications shall be inviolable. 
Information  concerning the  private  life  of  an  individual  may  be collected  only upon  a 
justified court order and in accordance with the law.  
The law and the court shall protect individuals from arbitrary or unlawful interference in 
their private or family life, and from encroachment upon their honour and dignity”. 

For its part, art. 25 establishes the right to freedom of expression on the part of individuals. 

According to this article, freedom of expression should not be limited except by law, in case it is 

necessary to protect, inter alia, the private life of individuals. 

The  protection  of  personality  rights  is  developed  in  the  Civil  Code  of  The  Republic  of 

Lithuania between articles 2.20. and 2.27. Among the civil rights of individuals that are cited 

and regulated are the right to the name, the right to the image, the right to privacy and secrecy 

and  the  right  to  protection  of  the  honour  and  dignity  of  individuals.  The  relevant  rules  to  be 

taken into consideration are as follows: 

Article 2.22. Right to an Image 

1. Photograph (or its part) or some other image of a natural person may be reproduced, 
sold,  demonstrated,  published  and  the  person  may  be  photographed  only  with  his 
consent. Such consent after natural person’s death may be given by his spouse, parents 
or children. 

2. Where such acts are related to person’s public activities, his official post, request of law 
enforcement  agencies  or  where  a  person  is  photographed  in  public  places,  consent  of  a 
person  shall  not  be  required.  Person’s  photograph  (or  its  part)  produced  under  the  said 
circumstances, however, may not be demonstrated, reproduced or sold if those acts were to 
abase person’s honour, dignity or damage his professional reputation. 
3. Natural person whose right to image has been infringed enjoys the right to request the 
court to oblige the discontinuance of the said acts and redressing of the property and non-
pecuniary  damage.  After  person’s  death,  such  claim  may  be  presented  by  his  spouse, 
children and parents.” 

66 Stasys Drazdauskas and the University of the Basque Country. 

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Article 2.23. Right to Privacy and Secrecy 
1. Privacy of natural person shall be inviolable. Information on person’s private life may 
be made public only with his consent. After person’s death the said consent may be given 
by person’s spouse, children and parents. 
2.  Unlawful  invasion  of  person’s  dwelling  or  other  private  premises  as  well  as  fenced 
private territory, keeping his private life under observation, unlawful search of the person 
or  his  property,  intentional  interception  of  person’s  telephone,  post  or  other  private 
communications  as  well  as  violation  of  the  confidentiality  of  his  personal  notes  and 
information, publication of the data on the state of his health in violation of the procedure 
prescribed by laws and other unlawful acts shall be deemed to violate person’s private life.  
3.  Establishment  of  a  file  on  another  person’s  private  life  in  violation  of  law  shall  be 
prohibited.  A  person  may  not  be  denied  access  to  the  information  contained  in  the  file 
except as otherwise provided by the law. Dissemination of the collected information on the 
person’s private life shall be prohibited unless, taking into consideration person’s official 
post and his status in the society, dissemination of the said information is in line with the 
lawful and well-grounded public interest to be aware of the said information. 
4.  Public  announcement  of  facts  of  private  life,  however  truthful  they  may  be,  as  well  as 
making  private  correspondence  public  in  violation  of  the  procedure  prescribed  in 
paragraphs 1 and 3 of the given Article as well as invasion of person’s dwelling without his 
consent except as otherwise provided by the law, keeping his private life under observation 
or  gathering  of  information  about  him  in  violation  of  law  as  well  as  other  unlawful  acts, 
infringing the right to privacy shall form the basis for bringing an action for repairing the 
property and  non-pecuniary damage incurred by the said acts. 
5.  Where  the  said  acts  are  committed  on  the  basis  of  reasoned    judgement  of  the  court, 
restrictions  imposed  on  the  publication  and  collecting  of  information  about  the  person 
which are laid down in the provisions of paragraphs 1 and 3 of the given Article shall not 
be applied. 

Article 2.24. Protection of Honour and Dignity 
1.  A  person  shall  have  the  right  to  demand  refutation  in  judicial  proceedings  of  the 
publicised  data,  which  abase  his  honour  and  dignity  and  which  are  erroneous  as  well  as 
redress of the property  and non-pecuniary damage incurred by the public announcement 
of  the  said  data  After  person’s  death  this  right  shall  pass  on  to  his  spouse,  parents  and 
children if the public announcement of erroneous data about the deceased person abases 
their honour and dignity as well. The data, which was made public, shall be presumed to be 
erroneous as long as the person who publicised them proves the opposite. 
2. Where erroneous data were publicised by a mass medium (press, television, radio etc.) 
the person about whom the data was publicised shall have the right to file a refutation and 
demand  the  given  mass  medium  to  publish  the  said  refutation  free  of  charge  or  make  it 
public in some other way. The mass medium shall have to publish the refutation or make it 
public in some other way in the course of two weeks from its receipt. Mass medium shall 
have the right to refuse to publish the refutation or make it public only in such cases where 
the content of the refutation contradicts  good morals. 
3.  The  request  to  redress  the  property  or  non-property  non-pecuniary  damage  shall  be 
investigated by the court irrespective of the fact whether the person who has disseminated 
such data refuted them or not. 
4. Where a mass medium refuses to publish the refutation or make it public in some other 
way or fails to do it in the term provided in paragraph 2 of the given Article, the person 
gains the right to apply to court in accordance with the procedure established in paragraph 
1  of  the  given  Article.  The  court  shall  establish  the  procedure  and  the  term  for  the 
refutation of the data, which were erroneous or abased other person’s) reputation. 
5.  The  mass  medium,  which  publicised  erroneous  data  abasing  person’s  reputation  shall 
have to redress property and  non-pecuniary damage incurred on the person only in those 
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cases, when it knew or had to know that the data were erroneous as well as in those cases 
when  the  data  were  made  public  by  its  employees  or  the  data  was  made  public 
anonymously and the mass medium refuses to name the person who supplied the said data. 
6. The person who made a public announcement of erroneous data shall be  exempted from 
civil  liability in cases when the publicised data is related to a public person and his state 
or public activities and the person who made them public proves that his actions were in 
good faith  and meant to introduce the person and his activities to the public. 
7.  Where  the  court  judgement,  which  obliges  the  refutation  of  erroneous  data  abasing 
person’s honour and dignity, is not  executed , the court may issue an order to recover a 
fine from the defendant for each day of default. The amount of the fine shall be established 
by the court. It shall be recovered for the benefit of the defendant irrespective of the redress 
for the inflicted damage. 
8. Provisions of the given article shall, too, be applied to protect the tarnished professional 
reputation of a legal person. 
9.  Provisions  of  the  given  article  shall  not  be  applied  to  those  participants  of  judicial 
proceedings who are not held responsible for the speeches delivered at court hearings or 
data made public in judicial documents. 

2. RULES OF CONFLICT 

The most noteworthy aspect of the rules of Lithuanian Private International Law for which 

provision  is  made  in  the  Civil  Code  of  The  Republic  of  Lithuania  is  that  they  provide  for  a 

specific rule of conflict for determining the law applying to claims resulting from the violation 

of  non-proprietary  rights  of  the  individual  Accordingly,  art.  1.45  of  the  Civil  Code  (law 

applicable  to  claims  resulting  from  infringement  of  personal  non-property  rights)  provides  as 

follows: 

“1. Claims for reparation of damage resulting from infringement of personal non-property 
rights  committed  by  the  mass  mean  shall  be  governed,  depending  on  the  choice  of  the 
aggrieved person, by the law of the state where the aggrieved person is domiciled, or has 
his place of business, or where the infringement occurred, or by the law of the state where 
the person who caused the damage is domiciled or has his place of business. 
 2.  Response  to  the  mean  (denial)  shall  be  governed  by  the  law  of  the  state  in  which  the 
publication appeared, or the radio or television program was broadcast”. 

This  rule  clearly  favours  the  position  of  the  individual  whose  non-proprietary  rights  have 

been injured, i.e., the rights relating to his personality. The form of favouring the position of the 

victim  is  expressed  through  a  broad  range  of  possible  applicable  laws  to  be  decided  by  the 

injured  party.  Among  the  various  options  he  will  select  the  law  that  presents  the  greatest 

advantages in relation to his interests. The laws among which the injured party may choose are 

as follows:  

- Law of the State where the injured party has his residence. 

- Law of the State where the injured party has his place of business. 

- Law of the State where the violation occurred. 

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- Law of the State where the individual who caused the damage has his residence. 

- Law of the State where the person who caused the damage has his place of business. 

For its part, according to the second section of art. 1.45 of the Law, the right of rectification 

will  be  regulated  by  the  Law  of  the  State  where  the  publication  appeared  or  the  radio  or 

television programme was broadcast. 

3. CASE LAW CONCERNING RULES OF CONFLICT 

We have no evidence of the existence of case law in this connection. 

4. SPECIALISED COURTS 

We have no evidence of the existence of specialised courts in this connection. 

5. DIRECTIVE 95/46/EC 

The  Law  on  Legal  Protection  of  Personal  Data,  of  21  January  2003,  No.  IX-1296,  with 

amendments of 13 April 2004, by virtue of its art. 1.3, transposes art. 4 of Directive 95/46/EC of 

the  European  Parliament  and  of  the  Council  of  24  October  1995  relating  to  the  protection  of 

natural person concerning the processing of personal data and the free circulation of such data 

as follows: 

“This Law shall apply to the processing of personal data where: 
1) personal data are processed in the course of its activities by a data controller who is established and 
operating on the territory of Lithuania; 
2)  personal  data  are  processed  by  a  data  controller  which  is  not  established  on  the  territory  of  the 
Republic of Lithuania but to which the laws of the Republic of Lithuania apply by virtue of international 
public law, including diplomatic missions and consular institutions; 
3) personal data are processed by a data controller established and operating in a non-member state of the 
European  Union,  which  makes  use  of  automated  personal  data  processing  means  established  in  the 
Republic  of  Lithuania,  with  the  exception  of  cases  where  such  means  are  used  only  for  transit  of  data 
through  the  territory  of  the  Republic  of  Lithuania  and  the  territory  of  the  European  Union.  In  the  case 
specified in this subparagraph, the data controller must have its representative - an established subsidiary 
or a representative office in the Republic of Lithuania to which the provisions of this Law in respect of 
the data controller shall apply”. 

This precept faithfully reproduces the provisions of art. 4 of the Directive. 

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LUXEMBOURG67 

1. National legislation  

a) Private Life 

• 

11 August 1982. – Law on the protection of private life68 

Luxembourg  has  a  specific  law  on  the  protection  of  privacy  of  natural  persons.  In  Art.  1  it 
establishes that each person shall have a right to a private life. 

Within this is included in the right of each person over their own image and use of their image 
and  the  right  to  object  to  any  unauthorised  publication.  Furthermore,  models  and  celebrities 
have an absolute right of ownership over their photographs and can authorise their reproduction 
for strictly business purposes (Reference 20 November 1978. 25. 358) 

b) Freedom of expression  

• 

The law of 8 June 2004 on freedom of expression of the media  

The law of 8 of June of 2004 ensures freedom of expression for the media. This law replaces the 
law  of  20  July  1989.  According  to  Article  2  corresponding  to  Art.  10  of  the  Convention  on 
human rights and fundamental freedoms signed in Rome on 4 November 1950, and ratified by 
the law of 29 August 1953, any restriction or interference in this matter must be provided for by 
law. 

This law abolished the law dated 20 July 1869 concerning the press and offences committed by 
other  means  of  publication,  which  featured  specific  provisions  with  respect  to  insult,  outrage, 
defamation and slander against the Grand Duc and his family as well as against foreign Heads 
of State. The law of 2004 does not contain specific criminal provisions.  

Scope of freedom of expression. According to Art. 6 the freedom of expression referred to in 
article 1 includes the right to receive and investigate information, and to decide to communicate 
it to the public in forms or by methods freely chosen, as well as to make comments or criticisms 
on them. 

Accuracy  By  operation  of  Art.  11  if  any  inaccurate  presentation  of  a  fact  is  contained  in  a 
publication, the mistakes of fact must be promptly corrected as soon as the publishers or staff 
become aware of it. 

Freedom of expression and private life  
In the 3rd section the law refers to protection of private life. And in article 14 it establishes that 
each person has a right to a private life.  

It provides that when information on the private life of an individual is publicised a judge may, 
without prejudice to compensation for the injury suffered, require that all necessary means be 
taken to correct it or to distribute a communication intended to put an end to the infringement of 

67 François MOYSE and UBC 
68 http://www.mj.public.lu/legislation/index.html 

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private  life,  with  costs  always  being  for  the  account  of  the  person  responsible  for  the 
infringement. 

However, as provided for in article 15, communication to the public of a publication containing 
information on the private life of an individual does not entail liability when:  

1.  It was done with the authorisation of that individual.  
2.  It was necessarily done at the prior request of the judicial authorities as part of a legal 

case or investigation. 

3.  When it was directly connected with the public life of the individual involved. 
4.  When it comes from a communication made directly to the public, always provided that 
all steps and precautions have been taken to avoid an infringement of the right to private 
life, and provided that the identity of the author of the words quoted is stated 

5.  When  it  is  a  faithful  quote  of  from  third  party,  always  provided  that  it  is  clearly 
identified  as  a  quote,  and  that  the  identity  of  the  author  is  stated,  and  that  the 
communication of this quote is justified by the existence of substantial public interest in 
disclosing the quote.  

•  Other laws relating to the media 69 : 

1. L. 23 mai 1927 concernant les publications obscènes  
2.  L.  29  décembre  1937  permettant  d’interdire  l’entrée  au  Luxembourg  de  publications 
étrangères obscènes 
3. L. 27 juillet 1991 sur les médias électroniques 
4. L. 3 août 1998 sur la promotion de la presse écrite et règl. d’exécution  
5.  L.  2  août  2002  sur  la  protection  juridique  des  services  à  accès  conditionnel  et  des  services 
d’accès conditionnel  

Case law: 

At the internal level, the following rulings on freedom of expression and protection of private 
life are referred to: 

Luxembourg Court of Appeals, 15/02/07: In order to know that the distorted use of 
a name is defamatory in character, the analysis must be done in concreto. That 
is, it must be done by studying the facts surrounding the allegedly defamatory 
use of the name. 

Luxembourg  Court  of  Appeals,  31/01/07:  It  has  been  decided  that  even  if  a 
journalist can not be completely objective, he breaks the law when he spreads 
unfonded blame regarding a person, without adequate supporting evidence. 

Luxembourg Court of Appeals, 06/01/05 : When several persons are implicated in a 
scandal, the fact that an editor selected the photograph of a particular person is 
only  one  element  among  others  that  would  make  up  the  violation  implicating 
his non-contractual responsibility.  

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2. Applicable law   

General law 

Art. 3. Les lois de police et de sûreté obligent tous ceux qui habitent le territoire. 
Les immeubles, même ceux possédés par des étrangers, sont régis par la loi luxembourgeoise. 
Les  lois  concernant  l'état  et  la  capacité  des  personnes  régissent  les  Luxembourgeois,  même 
résidant en pays étranger. 

8° La responsabilité de l'auteur d'un dommage est régie par la loi du lieu où s'est produit le fait 
générateur du dommage. C'est  d'après cette même loi que doit être tranchée la question de la 
prescription de l'action en réparation. Lux. 14 juillet 1959, 17, 501.  

21° La loi étrangère normalement applicable en vertu des règles de conflit de lois n'est écartée 
que si son application porte dans  une situation concrète précise une atteinte grave à un principe 
que  le  législateur  luxembourgeois  considère  comme  essentiel  à  l'ordre  moral,  politique  ou 
économique 

Specific laws on liability70 

1. L. 1er septembre 1988 relative à la responsabilité civile de l’Etat et des collectivités publiques  
2. L. 21 avril 1989 relative à la responsabilité civile du fait des produits défectueux  
3. L. 4 juillet 2000 relative à la responsabilité de l’Etat en matière de vaccinations  
4. Conv. 2 octobre 1973 sur la loi applicable à la responsabilité du fait des produits 

Case law on the law applicable to non-contractual liabilities  

As  Luxembourg  is  a  very  small  country  there  are  no  cross-border  decisions  on  liability 
concerning infringements of the right to private life by the media.  

3. Transposition of the Directive  

•  Loi modifiée du 2 août 2002 relative à la protection des personnes à l'égard du 

traitement des données à caractère personnel 

The  law  of  2  August  2002  relating  to  the  protection  of  individuals  in  relation  to  the 
processing  of  personal  data  came  into  force  on  1  December  2002.  It  was  amended  by  the 
law of 27 July 2007 which transposed the provisions of EC Directive 95/46/CE relating to 
the protection and free circulation of data into Luxembourg law. This law then replaced the 
previous data protection law of 1979.  

•  Loi du 27 juillet 2007 portant modification de la  Loi modifiée du 2 août 2002 
relative à la protection des personnes à l'égard du traitement des données à 
caractère personnel 

70 
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Scope of application  

Art. 3. 1 of the law establishes that the law applies:  
-  To the automatic processing of data, in whole or in part, together with non-automated 

processing of data that is contained in or that will be contained in a file. 

-  To all forms of capture, processing and publication of images in which individuals can 

be identified 

-  To processing data on public security, defence, and investigation and monitoring 

criminal offences for purposes of state security, or for economic or financial purposes, 
without prejudice to the specific provisions of national or international law  

And Art. 3.2 refers to when such actions will be subject to the said law.  

a)- when the data file was compiled by a data controller established on Luxembourg territory  
b)-    when  the  data  file  was  compiled  by  a  controller  who,  although  not  established  on 
Luxembourg  territory  or  in  another  EU  member  state,  used  resources  located  on  Luxembourg 
territory; except for those used for purposes of transit across such territories. When this is the 
case,  the  data  controller  must  nominate,  in  a  written  return  to  the  National  Commission,  a 
representative established in Luxembourg territory to act as an agent for the controller in these 
cases. 

As  a  result  Luxembourg  law  applies  when  the  data  controller's  establishment  or  its 
residence (which is the same thing) are in Luxembourg in the same way as the Directive. 
This adheres fully to the Directive  

In the same section, with the purpose of ensuring that all activities carried out in the European 
area provide the same level of protection to individuals as envisaged by the Directive; when the 
controller is not established in a member state but uses resources situated in a member state to 
process personal data, the law of that state will apply, unless such data is used only for transfer 
purposes. This adheres fully to the Directive. 

Case law  
On whether images recorded by a video camera can be used as evidence in accordance with the 
un-ratified law, as amended, of 2 August 2002: 

Jugement du tribunal d'arrondissement de et à Luxembourg (13 juillet 2006)  

- 
-  Arrêt de la Cour d'appel (28 février 2007)  
-  Arrêt de la Cour de Cassation (22 novembre 2007)  
-  Refus pour une entreprise d'effectuer une vidéosurveillance dans ses locaux:  
- 
-  Arrêt de la Cour administrative (12 juillet 2005)  

Jugement du tribunal administratif (15 décembre 2004)  

4. Judicial competence 

Civil procedures code of 16 September 1998  

Art.  42  establishes  that  for  purposes  of  compensation  for  injury  caused  by  offences  or 
negligence,  at  the  plaintiff's  option,  the  application  may  be  brought  before  the  courts  of  the 
place of domicile of the defender or of the place in which the deleterious act took place  

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5. Summary  

1.  National  law:11  août  1982.  –  Loi  concernant  la  protection  de  la  vie  privée ;  Loi  du  8  juin 
2004 sur la liberté d’expression dans les medias ; 1. L. 23 mai 1927 concernant les publications 
obscènes ; L. 29 décembre 1937 permettant d’interdire l’entrée au Luxembourg de publications 
étrangères  obscènes ;    L.  27  juillet  1991  sur  les  médias  électroniques ;  L.  3  août  1998  sur  la 
promotion de la presse écrite et règl. d’exécution ; L. 2 août 2002 sur la protection juridique des 
services à accès conditionnel et des services d’accès conditionnel. 
Case law: Luxembourg Court of Appeals, 15/02/07; Luxembourg Court of Appeals, 31/01/07; 
Luxembourg Court of Appeals, 06/01/05 :  
2. General law. Art.3 Civil Code "Public order and security laws are binding on all those who 
live in Luxembourg territory". There is no special procedure for conflict of laws for offences to 
govern infringements of the right to private life committed by the media.  
3. Transposition of the Directive: As a result Luxembourg law applies when the data controller's 
establishment or its residence (which is the same thing) are in Luxembourg in the same way as 
the Directive. This adheres fully to the Directive.  
4. Judicial competence: Civil procedures code of 16 september 1998; Art. 42 establishes that for 
purposes of compensation for injury caused by offences or negligence, at the plaintiff's option, 
the application may be brought before the courts of the place of domicile of the defender or of 
the place in which the injury took place. 

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Malta71 

1. SUBSTANTIVE LAW 

Maltese law contemplates ‘privacy’ with a two-fold approach. It first establishes a general and 

rather  subjective  right  to  privacy  by  way  of  the  Maltese  Constitution  and  the  European 

Convention Act (which transposes the provisions of the European Convention on Human Rights 

into Maltese law). Additionally, it further recognises and indirectly promotes the enforcement of 

the privacy right by means of various secondary laws and regulations that each independently 

contemplate the notion of privacy. 

The Maltese 1964 Constitution, as amended over the years, stipulates the rights appertaining to 

Maltese citizens including the right to privacy. Moreover, the European Convention Act of 1987 

(Chapter  319  of  the  Laws  of  Malta)  ratified  the  European  Convention  on  Human  Rights  thus 

allowing for its direct application and enforceability in Malta. Therefore an analysis of the rights 

contained in the Maltese Constitution and any interpretation of the said rights by the Courts of 

Malta must undoubtedly be carried out in this context. Essentially, this means that the Maltese 

judiciary within its constitutional jurisdiction may apply the provisions of both the Constitution 

and the Convention, whereas on the other hand, the European Court only has the competence to 

apply the latter and may not necessarily interpret the law in the same way as the Maltese Courts 

may interpret it. 

It is also important to consider that following Malta's) accession to the European Union in 2004, 

the  acquis  communitaire  and  EU  legislation  have  a  positive  and  direct  impact  on  Maltese 

legislation  and  the  way  the  Courts  are  to  interpret  such  laws  and  in  fact,  various  European 

Union initiatives, particularly those related to Data Protection, have had an important impact on 

Maltese law. 

Article  32  of  the  Constitution  on  the  Fundamental  Rights  and  Freedoms  of  the  Individual 

stipulates that every person in Malta is entitled to the fundamental rights and freedoms of the 

individual, that is to say, the right, whatever his race, place of origin, political opinions, colour, 

creed  or  sex,  but  subject  to  respect  for  the  rights  and  freedoms  of  others  and  for  the  public 

interest, to each and all of the following, namely: 

71 Dr. Paul Gonzi and the Unversity of the Basque Country. 

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(a) life, liberty, security of the person, the enjoyment of property and the protection of the 

law; 

(b) freedom of conscience, of expression and of peaceful assembly and association; and 

(c) respect for his private and family life. 

It is therefore sub-article 32(c) that is of concern here, and yet this article is a general provision 

that still does not give a profound insight into the concept of privacy. It fails to define what the 

terms ‘respect’, ‘private’ or ‘family life’ really mean and for that reason is dependent upon the 

discretion and interpretation of the Courts. 

Arguably,  the  right  to  privacy  is  enshrined  as  a  fundamental  human  right  in  the  Maltese 

Constitution only ‘to a degree’ – and this because the right to privacy per se, albeit referred to as 

a  sui  generis  right,  is  not  defined.  Moreover  as  was  confirmed  by  a  number  of  cases  (see 

Schembri  Joseph  vs  Hon.  Prime  Minister  et  al  -  2002)  Article  32  of  the  Constitution  is  not 

directly  enforceable  under  Article  46  of  the  Constitution  (Article  46  is  the  article  that  confers 

jurisdiction on the Constitutional Court to examine infringement of fundamental human rights. 

It stipulates that only the rights under Articles 33 to 45 of the Constitution are in effect directly 

enforceable.)  Therefore,  Article  32  has  always  been  interpreted  as  an  Article  that  contains  a 

declaration of principles, which, in spite of them being laudable and should be followed, are not 

enforceable before a Court. 

Notwithstanding this however, the Court in the Schembri case emphasised that the right to 

respect  of  the  person’s)  private  life,  home,  and  correspondence  also  result  from  Article  8  and 

Article  1  of  the  first  Protocol  of  the  European  Convention  which  are  incorporated  in  Maltese 

law by Chapter 319.  

The  Court  in  Schembri  however  held  that  these  rights,  just  like  any  other  rights  (except 

perhaps those relating to torture and inhuman treatment of persons) are all subject to exceptions 

that  in  turn  would  be  in  the  interest  of  other  rights,  just  as  equally  important,  belonging  to 

society in general. With reference to Stjern Vs Finland (1994 – EHHR) the Court concluded that 

Article 8 (and hence Article 32 of the Constitution) are subject to exceptions made in favour of, 

amongst  other  things,  public  interest,  health  or  morals,  or  ‘for  the  protection  of  rights  and 

liberties of third parties’. Therefore, "The right to respect for private life and home must not be 

looked  at  in  isolation",  and  "a  fair  balance  sheet  had  to  be  struck  between  the  competing 

interests of the individual and the community as a whole". 

This is inline with the exception to Article 8 expressed in the European Convention Act which 

states that interference by a public authority may arise if it is in accordance with the law and is 

necessary  in  a  democratic  society  in  the  interests  of  national  security,  public  safety  or  the 

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economic well-being of the country, for the prevention of disorder or crime, for the protection 

of health or morals, or for the protection of the rights and freedoms of others. 

This said, a number of important decisions have been determined by the Courts of Malta, in 

particular  by  the  Constitutional  Court,  with  reference  to  Article  32(c).  As  shall  be  seen,  most 

cases have been related to the publication and/or distribution in Malta of defamatory or libellous 

writings (regulated under Article 32 in terms of the respect for privacy but also by Article 41 of 

the  Maltese  Constitution  that  transposes  Article  10  of  the  European  Convention  on  Human 

Rights on the freedom of expression.  

Together with Article 32 another article of the Constitution that is relevant to the notion of 

privacy is Article 38 which speaks of the protection of the privacy of the home or other property 

of  the  individual.  In  brief,  this  lays  down  the  principle  that  subject  to  certain  obvious 

exceptions, no person shall be subjected to a. search of his person, premises or his property or 

the entry by others on his premises.  

Press Law & Privacy 

As alluded to above, the right to privacy resurfaces with respect to issues related to defamation 

and  libellous  publications.  In  fact,  Maltese  law  provides  for  the  specific  regulation  of 

publications  and  distribution  of  publications  by  means  of  the  1974  Press  Act  as  amended 

(Chapter 248 of the Laws of Malta). 

The  offences  regulated  by  the  Act  include  inter  alia,  the  publication  or  distribution  of 

printed  matter  that  give  rise  to  (i)  distribution  of  racist  threats  or  insults,  (ii)  obscene  and/or 

defamatory libel, (iii) malicious publication of false news, (iv) divulging of professional secrets, 

(v)  negligent  publication  of  false  news,  and  (vi)  publication  with  intent  to  extort  money  or  to 

instigate  an  offence  or  to  incite  to  disobey  the  law.  Criminal  and/or  civil  proceedings  may  be 

instituted against both the author and the editor of any work (or if the latter two persons cannot 

be  identified,  the  publisher  of  the  work)  and  it  is  no  defence  to  prove  that  the  writing  was  a 

copy, or an extract, or abridgement, or translation of another writing which has been otherwise 

printed or published. 

In  spite  of  the  above  it  must  be  reiterated  that  no  right  is  absolute  -  or  rather  –  a 

fundamental  right  subsists  (or  should  subsist)  along  a  number  of  other  equally  important 

fundamental rights. Therefore, as has been confirmed by numerous court decisions, the right to 

privacy provided by the Constitution (or the European Convention) as enforced by the Press Act 

is  subjected  to  and  must  take  into  account  other  rights,  particularly  the  rights  to  freedom  of 

expression (established under Article 41 of the Constitution or similarly under Article 10 of the 
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Convention)  or  the  right  to  freedom  of  thought,  conscience  and  religion  (established  under 

Article 9 of the Convention. 

In  relation  to  the  Press  Act  key  emphasis  is  generally  put  on  the  freedom  of  expression 

which  is  perceives  as  as  a  right  to  hold,  receive  and  express  information  and  ideas  freely  and 

without interference. 

Indeed,  this  right  is  also  not  absolute  and  for  instance  Article  10  of  the  European 

Convention  itself  imposes  certain  restrictions  and  limitations  to  the  right  (e.g.  for  national 

security,  territorial  integrity,  protection  of  health  and  morals,  preventing  the  disclosure  of 

confidential  information  and  so  on).  In  addition  other  rights  (such  as  that  of  privacy)  by  their 

very  existence  (or  rather  as  a  result  of  their  being  enforced)  restrict  Article  10.  Similar 

restrictions apply under Article 41 of the Maltese Constitution and under the Press Act which 

makes  provision  for  privileged  publications,  journalistic  freedoms  and  the  need  to  create  a 

balance sheet when the matter “refers to the domestic life of the aggrieved party”. 

Breach of Confidence – Civil Offence 

An  infringement  of  one’s)  privacy  could  arise  when  information  contained  in  confidence  -  or 

information  which  a  person  has  clearly  stated  to  be  confidential  and  acted  to  keep  it  as 

confidential – is no longer retained as confidential without the consent of that person. 

Under the Maltese Civil Code breach of confidentiality could amount to a breach of Fiduciary 

Obligations towards the person where such Fiduciary obligations arise in virtue of law, contract, 

quasi-contract,  trusts,  assumption  of  office  or  behaviour  whenever  a  person  (the  ''fiduciary'') 

receives information from another person subject to a duty of confidentiality and such person is 

aware  or  ought,  in  the  circumstances,  reasonably  to  have  been  aware,  that  the  use  of  such 

information is intended to be restricted. 

Fiduciary  obligations  also  arise  from  behaviour  when  a  person  (a)  without  being  entitled, 

appropriates  or  makes  use  of  property  or  information  belonging  to  another,  whether  for  his 

benefit or otherwise; or (b) being a third party, acts, being aware, or where he reasonably ought 

to be aware from the circumstances, of the breach of fiduciary obligations by a fiduciary, and 

receives  or  otherwise  acquires  property  or  makes  other  gains  from  or  through  the  acts  of  the 

fiduciary. 
Article  1044  of  the  Civil  Code  further  stipulates  a  general  principle  of  law  whereby  if  any 

damage has been unjustly caused, any person who has wilfully contributed to that damage with 

advice, threats, or commands, shall also be guilty of an offence. This might possibly apply in 

the case of damages that may arise out of breach of privacy and/or fiduciary obligations. 

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Harassment - Criminal Offence 

Article  251A  of  the  Maltese  Criminal  Code  stipulates  that  a  person  shall  be  guilty  of  an 

offence  if  he/she  pursues  a  course  of  conduct:  which  (a)  amounts  to  harassment  of  another 

person, and (b) which he knows or ought to know amounts to harassment of such other person,. 

2. RULES OF CONFLICT 

The source of the rules of conflict of Malta are found basically in the rules of conflict of the 

United Kingdom. At the present time no Maltese law exists that clearly establishes its own rules 

of conflict. Therefore, legal decisions are the sole national source of these rules, which interpret 

and  apply  the  rules  of  conflict  of  the  United  Kingdom;  that  is  to  say  the  double  actionability 

rule  according  to  the  jurisprudential  interpretation  made  in  the  cases  Phillips  v.  Eyre  (1870) 

L).R. 6 Q).b. 1 (Exch.), Boys v. Chaplin (1971) AC 356 and Red Sea Insurance v. Bouygues SA 

(1994) 3 All ER 749 (CA). 

3. CASE  LAW  CONCERNING  THE  RULES  OF 

CONFLICT 

We have no proof of the existence of case law in this connection 

4. SPECIALISED COURTS 

In  Malta  there  are  no  specialised  courts  thus  such  courts  do  not  exit.  Any  dispute 

would have to go to the normal civil court. 

5. DIRECTIVE 95/46/CE 

The Data Protection Act of 2001 was enacted in Malta on the 14th December 2001, with both 

sides of the House of Representatives voting in favour of the Act. It is significant of course that 

the  European  Directive,  upon  which  the  Maltese  Data  Protection  Act  is  based,  expressly 

recognises  its  origins  in  the  right  of  privacy  as  expressed  in  Article  8  of  the  European 

Convention for the Protection of Human Rights and Fundamental Freedoms. 

Therefore the Data Protection Act provides for the protection of individuals against the violation 

of  their  privacy  by  the  processing  of  personal  data  and  for  matters  connected  therewith  or 

ancillary thereto. It was brought fully into force on the 15th July 2003, enabling data subjects to 

enjoy their rights under the Act. 

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In  terms  of  the  cross-border  enforcement  and  territorial  application  Article  4  of  the  Data 

Protection Act transposes art. 4 of the Directive as follows: 

“(1) This Act shall also apply: 
(a)  to  the  processing  of  personal  data  carried  out  in  the  context  of  the  activities  of  an 
establishment  of  a  controller  in  Malta  or  in  a  Maltese  Embassy  or  High  Commission 
abroad; 
(b) to the processing of personal data where the controller is established in a third country 
provided  that  the  equipment  used  for  the  processing  of  the  personal  data  is  situated  in 
Malta. 
(2) Without prejudice to the following proviso, the provisions of subarticle (1)(b) shall not 
apply if the equipment is used only for purposes of transit of information between a third 
country and another such country:  
Provided that the controller in such a case shall appoint a person established in Malta to 
act as his representative”. 

In  this  case,  section  1.b)  does  not  require,  as  does  art.  4  of  the  Directive,  that  when  the 

entity  responsible  for  the  processing  of  the  data  is  not  established  in  Malta  and  makes  use  of 

resources situated within its territory, in order for the Law of Malta to apply, it is necessary for 

it to be established within a Non-Member State. The Law of Malta refers to the establishment in 

“third  States”,  where  the  other  Member  States  would  also  be  included.  Accordingly,  the 

application of the Law would cover cases not provided in the Directive, potentially expanding 

its scope of application; this means, in turn, nonfulfilment of the Directive as it goes against the 

spirit of the Directive. 

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NETHERLANDS72 

1. Autonomous Legislation 

a)  The Constitution 

Article 10 of the Dutch Constitution of 1983 recognises the right to privacy. 

b)  Information on relevant legal provisions on defamation  

•  Civil Code  

Defamation is covered by the Civil Code, Book 6, Title 3, Article 162: tort (wrongful act).  

• Under the civil code, the defendant can equally call to his defence that disclosure of 
the defamatory statements was in the general interest. This happens particularly 
frequently when it concerns statements expressed through the media.  
• In the case-law of the Supreme Court it is explicitly recognized that a judgement debt 
in cases concerning statements expressed via the media constitutes an interference in the 
right the freedom of expression, and therefore the case law of the ECHR on legitimate 
grounds for this interference (Art. 10.2 ECHR) needs to be taken into account.  
•  When  the  defamatory  statement  in  question  is  not  a  fact  but  a  publicly  expressed 
opinion, the Court will be particularly reserved about demanding a sentence.  

Possible sanctions for defamation under civil law are:  

1) compensation of material or immaterial damages  
2)  declaration  of  the  wrongful  or  defamatory  nature  of  the  statements  (by  publication  of  the 
Courts judgement)  
3) prohibition of the expression of the statements or repetition of the statements  
4) publication of the verdict or a rectification  

•  Criminal Code  

Title XVI of the Second Book of the Criminal Code contains provisions on defamation (articles 
261, 262, 266, 267, 268, 270, 271). The specific subject of these different articles is as follows:  
Libel (art. 261 and 262), ‘simple defamation’ (art. 266), defamation of public authorities or the 
head of a friendly state (art. 267), defamatory written false complaint or declaration reported to 
the  government  (art.  268),  defamation  of  a  deceased  person  (art.  270),  libel  inflicted  upon  a 
deceased person (art. 271).  
A  charge  may  only  be  brought  by  a  private  party  filing  a  complaint  with  the  prosecutor,  who 
then has the discretion to dismiss frivolous complaints.  
Crimes  under  Title  XVI  can  be  punished  with  a  prison  sentence  of  between  3  months  and  2 
years, or alternatively with fines of different categories.  
Apart from the provisions under Title XIV, Defamation, the Second Book of the Criminal Code 
also  contains  provisions  on  crimes  against  Royal  dignity  (Title  II),  crimes  against  heads  of 
friendly nations and other internationally protected persons (Title III) and crimes against public 
order (discrimination) (Title V).  

72  Jeroen  Koëter  and  UBC.  We  have  particularly  taken  into  account  the  document  on 
defamation and the media drawn up by the secretariat of the CDMC of the Council of Europe. 
CDMC (2006)007. 

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Public figures. Public figures, including politicians, are often expected to accept more criticism 
than  private  persons.  They  are,  however,  protected  against  rash  accusations.  The  concept  of 
"public figure" is applied by both the courts and the Press Council.  
Insults  to  government  institutions  or  officials.  The  Criminal  Code  penalises  the  "deliberate 
insult"  of  the  King  or  Queen  or  other  members  of  the  Royal  Family  as  well  as  the  insulting 
behaviour  toward  the  friend  of  a  friendly  nation  or  ambassadors  of  such  nations,  while  that 
person is staying in the Netherlands in an official capacity. However, there have been no recent 
cases concerning the press under any of these charges.  
Defence. Journalists do not need to prove the truth of their accusations; it is sufficient that they 
have  assumed  the  accuracy  of  their  statements  in  good  faith  and  that  they  made  them  in  the 
public’s interest (Articles 261 (3) and 271).  

c)  Developments  in  the  application  of  criminal  and  civil  law  provisions  concerning 

defamation at domestic level  

According to information provided by the Dutch authorities, a person will only be prosecuted 
and  sentenced  on  the  basis  of  defamation  offences,  if  such  a  prosecution  or  sentence  is 
compatible with the case-law of the European Court of Human Rights; this applies in particular 
with regard to the right to freedom of expression.  
No  progress  has  been  reported  concerning  the  fact  that  journalists  may  face  up  to  5  years 
imprisonment for intentional defamation of the Monarch and the royal family (FH-FP, 2004).  

In  the  period  between  2002  and  2004,  a  total  of  4276  defamation  cases  were  dealt  with  by 
criminal  courts.  In  104  of  these  cases,  a  prison  sentence  was  imposed,  of  which  the  average 
duration was 13 days. The maximum prison sentence imposed was 2 months. In 3217 cases, a 
fine was imposed (average € 206, maximum € 1000).  
It is not possible to distinguish an exact separate figure for defamation cases against journalists 
or media professionals, as this is not separately registered. However, the Ministry of Justice has 
indicated  that  this  figure  is  very  low  and  that  prison  sentences  in  these  type  of  cases  are 
extremely rare.  

2. Applicable law 

Several provisions of private international law are included in the General Provisions (Kingdom 
Legislation)  Act  [Wet  houdende  algemene  bepalingen  der  wetgeving  van  het  Koninkrijk] 
(hereinafter: AB). 

There are  also a number of Acts that on conflicts of laws in certain legal areas: divorce (Wet 
conflictenrecht  echtscheiding,  WCE),  family  names  and  given  names  (Wet  conflictenrecht 
namen,  WCN),  marriages 
(Wet  conflictenrecht  huwelijksvermogensregime,  WCHv), 
matrimonial  property  regimes  (Wet  conflictenrecht  huwelijksvermogensregime,  WCHv),  life 
insurance, non-life insurance, matrimonial relations(Wet conflictenrecht huwelijksbetrekkingen, 
WCHb);  maritime  law  and  inland  navigation  law(Wet  bepalingen  van  internationaal 
privaatrecht  met  betrekking 
trusts(Wet 
(Wet  conflictenrecht  eropvolging,  WCErf), 
conflictenrecht 
corporations, unlawful acts (Wet conflictenrecht onrechtmatige daad, WCOD), parentage (Wet 
conflictenrecht  afstamming,  WCA),  adoption  (Wet  conflictenrecht  adoptie,  WCAd),  register 
partnerships (Wet conflictenrecht geregistreerd partnerschap, WCGP) 

tot  zeerecht  en  binnenvaartrecht,  WIPRZ), 

trusts,  WCT),  succession 

The Unlawful Acts (Conflict of Laws) Act [Wet conflictenrecht onrechtmatige daad] stipulates 
that an unlawful act shall be governed by the law of the state in which the act took place (Article 
3 paragraph 1 of the WCOD). However there are a number of exceptions to this, particularly if 

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the  consequences  of  an  act  occur  in  a  state  other  than  that  in  which  it  took  place,  if  the 
perpetrator and the injured party have their place of habitual residence in the same state or in the 
case  of  illegal  competition.  If  an  unlawful  act  is  closely  linked  to  another  legal  relationship 
between parties, the court may, contrary to the foregoing, also apply the law governing the other 
legal relationship to the unlawful act (Article 5 of the WCOD). 

Contrary to the foregoing, parties may also choose the applicable law themselves (Article 6 of 
the WCOD).  

There is no specific rule for attacks against character by the media. 

Public order: 

Foreign law must be disregarded if that law or its application is in contravention of international 
public  order  under  private  law.  This  is  the  case  if  (the  application  of)  the  foreign  law  would 
infringe  the  fundamental  principles  of  the  Dutch  legal  system.  The  rule  must  be  applied  in  a 
restrictive  manner.  The  sole  fact  that  the  foreign  law  differs  from  Dutch  law  is  insufficient 
grounds to invoke public order, even if the Dutch law in question is of a mandatory nature. If it 
is not the rule itself but rather its application that may potentially breach the public order, the 
assessment  of  this  may  then  partly  depend  on  the  extent  to  which  the  case  is  linked  to  Dutch 
jurisdiction. Public order may be invoked, even if the regulation in question does not contain a 
provision to this effect. 

Jurisprudence: 

•  Dutch Supreme Court November 19, 1993, NJ 1994, 622. 
•  Dutch Supreme Court November 19, 1993, NJ 1994, 622, ground 4.2. 
•  District Court of Arnhem, February 14, 1997, NIPR 1997, 247 

In 1997 the president of the District Court of Arnhem ruled on a case in which Dutch plaintiffs 
invoked the responsibility for damage to their reputation or good name through a publication in 
the German magazine" Stern ". The plaintiffs, resident in Curacao, sued the journalist who had 
written the article and who lived in the Netherlands. The magazine was sold in Germany and in 
Netherlands. In response to the publication —which was about smuggled nuclear power— the 
Dutch Minister for Antillean and Aruban Affairs was asked questions in parliament. According 
to  the  presiding  judge,  Dutch  law  applied  because  the  publication  was  distributed  and  the 
consequences of the damage occurred principally in the Netherlands. 

•  Court of Appeal, January 11, 1996, NIPR 1997, 333 

In another case between the Dutch corporation Ahold and the Russian corporation Tonar, Dutch 
law  also  was  applied  by  the  Amsterdam  Court  of  Appeal.  However,  unlike  the  previous 
example, the article was only published in the Netherlands, whereas the damage was inflicted on 
a foreign party that suffered the consequences in another country. Ahold and Tonar had signed a 
collaboration agreement. After a year, Ahold terminated the agreement with Tonar. A journalist 
from a Dutch newspaper asked Ahold what had happened and published an article on it. Tonar 
believed  that  the  article  misrepresented  the  situation.  The  court  decided  that  Dutch  law  was 
applicable to this case, because the statements in the media were made in the Netherlands, by 
and on behalf of a Dutch organisation to a newspaper for a Dutch readership. in this case, no 
argument was made on the harmful consequences outside of the Netherlands. 

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3. Transposition of the Directive  

DPL  approved  by  the  Senate  on  06.07.2000  (O.J.  302/2000).  Personal  Data  Protection  Act 

(Wet bescherming persoonsgegevens), Act of 6 July 2000 

Art 4. This Act applies to the processing of personal data carried out in the context of the 
activities of an establishment of a responsible party in the Netherlands. 

2. This Act applies to the processing of personal data by or for responsible parties who are not 
established in the European Union, whereby use is made of automated or non-automated means 
situated in the Netherlands, unless these means are used only for forwarding personal data. 

The transposing act fully complies with the European Directive. 

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POLAND73 

1. Autonomous rules 

a)  Dignity and the right to private life 

The Constitution of the Polish Republic of 2 April 1997 establishes in Art. 30 that dignity, being 
inherent and inalienable for all, constitutes a source of rights and liberties for citizens.  

•  The  2007  Supreme  Court  Ruling  states  that  according  to  article  20  of  the  Polish 
constitution,  the  inherent  and  inalienable  dignity  of  the  person  is  inviolable  and  the 
respect  and  protection  of  it  is  an  obligation  of  the  public  authorities.  This  obligation 
must be observed by the public authorities above all in those cases in which the State 
acts  as  imperium,  via  repressive  acts  which  should  not  lead  to  greater  restrictions  on 
human rights and dignity than those resulting from the tasks of protection.   

Art.  41.1  establishes  that  inviolability  and  personal  security  should  be  assured  for  all  people. 
Any deprivation or limitation of liberty may be imposed only in accordance with the principles 
of and under procedures specified by statute. 

Art. 42.2 states that the freedom and the privacy of communication is assured. Restrictions upon 
this liberty may only be adopted according to the terms of the statute. 

Art. 51 establishes that no-one is obliged (except where stated) to supply personal information 
about themselves. 

•  The Civil Code of 23 April 1964 

Art. 23 establishes that the personal interests of an individual, particularly the health, freedom, 
honour, freedom of conscience, name or pseudonym, image, secrecy of correspondence, and the 
inviolability  of  the  home  and  of  the  creative  scientific  or  artistic  activity  of  the  creator  are 
protected by civil law independently of the protection apportioned by other regulations. 

•  Supreme Court judgment of 11 May 2007, (I CSK 47/07) It is possible to challenge the 
degree  of  protection  for  facts  relating  to  the  private  life  of  a  public  person  if  they  are 
connected to their public duties.  

• 

Judgment  of  Appeal  Court  in  Katowice  of  4  April  2007,  (I  ACa  139/07)  Should  a 
particular person infringe upon the personal interests of other people, such as the right 
to privacy, control of one’s own image, right to liberty and private property, he or she 
will  thereafter  be  unable  to  legitimately  demand  the  protection  of  his  or  her  own 
personal  interests  if  in  turn  he  or  she  as  the  author  of  said  infringement  allows  (or 
forces) other persons to behave similarly. 

•  Supreme Court judgment of 21 March 2007 (I CSK 292/06). 

73  UBC.  Particular  attention  was  paid  to  the  document  on  defamation  and  press  media  created  by  the 
Secretariat of the CDMC at the Council of Europe. CDMC (2006)007. 

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1.  Facts  which  give  rise  to  doubts  cannot  be  considered  truthful  within  actions  linked  to 

justified public interest or sensationalist acts carried out by the press. 

2.  A person cannot lose personal dignity, this being an internal conviction of one’s moral 
and  ethical  impeccability  and  honour  as  an  expression  of  other  people’s  positive 
attitudes towards the personal and social value of an individual.  

3.  If in certain circumstances an infringement of a person’s dignity or honour is not illegal, 
this  does  not  mean  that  no  infringement  has  occurred:  quite  the  opposite  –  the 
determination that an infringement occurred is the basic premise on which the question 
may  be  resolved  as  to  whether  the  author  was  responsible  in  light  of  article  24  of  the 
Civil  Code,  the  key  point  in  this  respect  being  whether  the  infringement  in  the  given 
circumstances can be justified, the key factor being if there was no illegality involved. 

Article 24. of the Civil Code establishes that: 

 § 1. Anyone whose personal interest is threatened may take necessary steps to ensure the action 
stops,  except  where  illegal.  In  the  case  of  infringement,  he  or  she  may  also  demand  that  the 
person  responsible  carry  out  any  measures  necessary  to  block  its  effects,  in  particular  a 
declaration of the appropriate content in the appropriate form. Furthermore he may also demand 
financial satisfaction or that the appropriate monetary sum be paid to a named public cause.  
§ 2. If damages arise as a result of the infringement of personal interest, the injured party may 
demand reparation for the damages in accordance with general principles. 

•  Supreme Court judgment of 24 January 2008 (I CSK 338/07) A defendant accused of 
infringing personal interests may not rely on the exclusion of the illegal act if the 
publication is based solely on official documents and its author did not intend to enter 
into contact with the person being criticised. 

•  Supreme Court judgment of 12 September 2007 (I CSK 211/07) Actions in the justified 
public interest or sensationalist acts carried out by the press may not publish false 
statements. 

Art  8  establishes  that  the  circulation  of  an  image  requires  the  permission  of  the  person 
represented in it. Except where clearly stated to the contrary, permission is not required if the 
person has received the agreed payment.  

2.  

Permission to circulate an image is not required: 

1) 

of a generally recognised person if the image was taken in relation to the 

execution of their public duties, particularly duties of a political, social and professional nature; 
of a person forming only one part of a whole, such as a meeting, a landscape or 

2) 

a public event. 

•  Supreme Court judgment of 20 May 2004 (II CK 330/03) The responsibility for proving 
that  the  circulation  of  an  image  does  not  exceed  the  reach  of  the  permission  obtained 
and for the specified purpose rests with the party circulating the image. 

• 

Judgment of Appeal Court in Krakow of 19 December 2001 (I ACa 957/01) y Judgment 
of Appeal Court in Warsaw of 13 January 1999 (I ACa 1089/98) Articles 81 and 83 of 
the  copyright  law  protect  the  exclusive  power  of  persons  portrayed  to  control  the 
circulation of their image. Each person has full autonomy of decision over whether their 
image  may  be  circulated  and  in  which  circumstances.  II.  A  person  depicted  in  a 
photograph  (or  other  physical  depiction  of  their  image)  may  limit  as  they  see  fit  the 
degree of permission to circulate their image: permitting publication only in a specific 

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periodical  and  /  or  in  specific  circumstances  (e.g.  in  relation  to  the  specific  text  of  a 
press article) fixes the time limits for publication)  III. For application of article 81.2.2. 
of the copyright law it is necessary to determine the relationship between an image of 
persons  and  other  representative  elements;  permission  to  circulate  an  image  is  not 
required if it is an incidental element or accessory, which is to say that the theme and 
nature of the representation is unchanged if the image is removed. 

•  PRESS Law Act of 26 January 1984 

Art. 31 establishes  

Upon demand of an individual, legal entity or other organisational unit, the editor-in-chief of a 
journal or newspaper must publish free of charge: 
1) the denial and substantive norms regarding false or imprecise notices,  
2) the response to a declaration which threatens personal interests. 

• Supreme Court judgment of 6 October 2006  (V CSK 151/06) 

1. Personal  interest  is  infringed  by  a  press  publication  only  if,  according  to  an  average 
recipient  (the  reader)  of  said  material,  the  information  contained  therein  infringes  the 
specific personal interest of the individual. 

2. If the wronged party referred to in article 39 of the Press law has not requested the editor-
in-chief to publish a correction, he or she may not ask the court to require the editor-in-
chief to do so. 

•  Judgment of Appeal Court in Poznań of 27 September 2005 (I ACa 1443/03) The 
obligation  of  the  editor,  editor-in-chief  and  author  of  the  press  material  to  apologise  for 
infringement of personal interests caused by the publication of such material is not a joint 
obligation under the auspices of article 378.2 of the Civil Procedures Code. The press law 
does  not  require  the  author  to  contact  an  individual  before  publishing  an  article  including 
unfavourable information about them. 
The  behaviour  of  public  persons  affects  “public  life”  and  is  the  basis  for  the  reasonable 
interest  of  the  wider  public  and  rights  relating  to  the  acquisition  of  information.  For  this 
reason,  it  is  commonly  assumed  that  the  scope  for  permissible  criticism  is  wider  and  the 
permitted protection weaker with regard to such individuals. 

b) Defamation 

•  Criminal Code  

Art.  135.2.  Whoever  publicly  insults  the  President  of  Republic  of  Poland  in  public,  shall  be 
subject to imprisonment for up to 3 years.    

Art. 137  
Paragraph  1  penalises  public  defamation,  destroying,  damaging  or  removal  of  an  emblem, 
banner, standard, flag, ensign or other symbol of the State and provides for that offence a fine, 
restriction of liberty or deprivation of liberty for up to one year.  
Paragraph  2  penalises  the  same  behaviours  as  indicated  in  paragraph  1  but  these  behaviours 
must  be  directed  towards  emblems  and  symbols  of  other  country  publicly  displayed  by  a 
mission  of  this  State  or  upon  an  order  of  the  Polish  authority  and  provides  for  this  offence  a 
fine, restriction of liberty or deprivation of liberty for up to one year.  

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Art. 226  
Paragraph 1 penalises defamation of a public official or a person called upon to assist him, in 
the  course  of  and  in  connection  with  the  performance  of  official  duties  and  provides  a  fine, 
restriction of liberty or deprivation of liberty for up to one year for this offence.  
Paragraph  3  penalises  public  defamation  or  humiliation  of  the  constitutional  authority  of  the 
Republic of Poland and provides a fine, restriction of liberty or deprivation of liberty for up to 
two years for this offence.  

Art.  236:  “Insulting  a  public  official  or  one  assisting  a  public  official  in  the  course  of  and  in 
connection  with  the  performance  of  official  duties,”  shall  be  punishable  by  up  to  two  years 
imprisonment or a fine.  

Art. 270: “Publicly insulting, ridiculing and deriding the Polish nation, the Polish Republic, its 
political  system  or  its  principal  organs,”  shall  be  punishable  by  six  months  to  eight  years 
imprisonment.  

Art. 273: If the acts prohibited in Art. 270 are committed in print or through the mass media, the 
punishment is one to ten years imprisonment.  

The  Penal  Code  provides  for  criminal  responsibility  for  defamation,  which  is  an  offence 
prosecuted upon motion of the injured person, although the prosecutor may join the proceedings 
if  an  important  social  interest  so  requires  (Article  212.1.  Whoever  accuses  another  person,  a 
group  of  persons,  an  institution,  a  legal  person  or  an  organisational  unit  without  legal 
personality, of such conduct or characteristics as may degrade them in public opinion, or expose 
them  to  the  loss  of  confidence  necessary  for  a  given  position,  occupation,  or  type  of  activity, 
shall be subject to a fine, limitation of liberty, or imprisonment for up to 1 year.) The penalty is 
more severe if the offence has been committed through the media (Article 212.2)  

•  Developments  in  the  application  of  criminal  and  civil  law  provisions  concerning 

defamation at domestic level  

In a recent case involving the editor-in-chief of the weekly Wiesci Polickie (Police News), the 
journalist  was  sentenced  to  a  three-month  prison  sentence  for  libeling  a  local  official  after 
having  refused  to  apologise  in  writing.  The  Polish  Supreme  Court  upheld  the  sentence  of 
imprisonment  on  22.06.2004  (see  inter  alia  CPJ,  06.02.2004,  23.06.2004;  RSF,  02.04.2004, 
23.06.2004; IPI, 25.06.2004; IFJ/IFEX, 01.07.2004; EFJ, 01.07.2004).  
FH  evaluates  at  more  than  40  the  number  of  investigations  pending  against  journalists  and 
editors for violations of the press laws, defamation or misuse of confidential information (FH-
FP,  2004).  IHF  and  IPI  denounce  the  growing  pressure  on  media  and  journalists  which  is 
reportedly exerted to stop their investigative efforts and curtail press freedom (IHF-AR, 2004; 
IPI-AR, 2003).  

2. Applicable law  

In Polish law, article 31 of the Law on Private International Law governs the question of the law 
controlling  non-contractual  obligations.  However,  by  analogy  to  what  happens  with  regard  to 
contractual  obligations,  the  applicable  law  is  also  governed  by  bilateral  and  multilateral 
agreements,  as  well  as  by  national  legislation  via  application  of  sectorial  directives  regarding 
conflict of laws. This regulation takes precedence over the dispositions of the aforementioned 
Law. 

• 

In the case of road traffic accidents, the 1971 Convention takes precedence over the law 
applicable to road traffic accidents, to which Poland is a party. 

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• 

In the framework of its application, the regulations regarding conflict of laws in 
sectorial directives take precedence over the dispositions of the Law (for example, with 
regard to consumer protection). 

Special rule on non-contractual obligations 
Parts 1 and 2 of Article 31 of the Law establish that a non-contractual obligation is governed by 
the  law  of  the  country  where  the  act  constituting  the  source  of  the  obligation  took  place. 
However, if the parties are citizens and residents of the same country, the law of that country is 
applicable. 

Public order 
Article  6  of  the  Law  on  Private  International  Law  establishes  an  exception  relating  to  public 
order, according to which a foreign law may not be applied if said application gives rise to an 
infringement of the fundamental principles of the Polish Republic’s public order.  
This  disposition  is  only  applied  exceptionally,  in  cases  in  which  the  foreign  law  violates  the 
essential principles of judicial order in force at the time of the judicial resolution. Furthermore, 
before application it is necessary to consider not just the differences between the national and 
the foreign laws, but also the consequences of applying these two legal ordinances in a specific 
situation.  Essentially,  it  is  possible  that  the  application  of  rules  from  different  legal  systems 
produces  similar  results  in  spite  of  the  existence  of  radically  different  regulations,  thereby 
excluding the application of the aforementioned Article 6. 

3. Transposition of the Directive  

Act of August 29, 1997 on the Protection of Personal Data, amended January 1, 2004, March 1, 
2004, May 1, 2004 

Art. 3 states that said law shall be applicable to: 
1) non-public bodies carrying out public works 
2)  individuals,  legal  entities  and  organisational  units  which  are  not  legal  entities,  if  they  are 
involved  in  the  processing  of  personal  information  as  part  of  their  business  activities  or 
profession or implementation of statutory objectives when they implement same or are resident 
on territory belonging to the Republic of Poland or a third country if they are involved in the 
processing  of  personal  information  via  technical  means  located  on  territory  belonging  to  the 
Republic of Poland.  

Criterion for establishment or residence of the party responsible for the file. Complies with the 
Directive.  

Art.  31.  In  case  of  the  processing  of  personal  data  by  the  subjects  having  the  seat  or 
residing in a third country, the controller shall be obliged to appoint its representative in 
the Republic of Poland.  

4. Legal jurisdiction 

The  Polish  Civil  Procedures  Code  envisages  four  types  of  territorial  jurisdiction:  general 
(articles 27 to 30 of the CPC), concurrent (articles 31-37 of the CPC), exclusive (articles 38-42 
of the CPC) and special (articles 43-46 of the CPC) 

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5. Summary  

1. Autonomous rules: The Constitution of the Polish Republic of 2 April 1997 comprises rights 
related to the person in its Articles 30; 41.1; 42.2 and 51. 

Art  23  of  the  Civil  Code,  of  23  April  1964,  states  that  the  personal  interests  of  an  individual, 
particularly  the  health,  freedom,  honour,  freedom  of  conscience,  name  or  pseudonym,  image, 
secrecy  of  correspondence,  and  the  inviolability  of  the  home  and  of  the  creative  scientific  or 
artistic  activity  of  the  creator  are  protected  by  civil  law  independently  of  the  protection 
apportioned by other regulations. Related articles 24 and 8. 

PRESS Law Act of 26 January 1984 
Jurisprudence: Judgment of Appeal Court in Poznań of 27 September 2005 (I ACa 1443/03); 
Supreme Court judgment of 6 October 2006  (V CSK 151/06); 

2. Conflict rules:  
Parts  1  and  2  of  Article  31  of  the  Law  on  Private  International  Law  establish  that  a  non-
contractual  obligation  is  governed  by  the  law  of  the  country  where  the  act  constituting  the 
source of the obligation took place. However, if the parties are citizens and residents of the same 
country, the law of that country is applicable. 

3. Transposition of the Directive: Act of August 29, 1997 on the Protection of Personal Data, 
amended  January  1,  2004,  March  1,  2004,  May  1,  2004;    Criterion  for  establishment  or 
residence of the party responsible for the file. Complies with the Directive.  

4.  Legal  jurisdiction:  The  Polish  Civil  Procedures  Code  envisages  four  types  of  territorial 
jurisdiction:  general  (articles  27  to  30  of  the  CPC),  concurrent  (articles  31-37  of  the  CPC), 
exclusive (articles 38-42 of the CPC) and special (articles 43-46 of the CPC) 

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PORTUGAL 74 

1. Autonomous Rules 

The Portuguese Constitution considers personal rights as basic offences. The right to life, to the 
integrity  of  the  person,  to  personal  identity  and  to  personal  development,  the  right  to  defend 
one’s reputation, the right to one’s own image, and the right to privacy are all rights protected in 
the Constitution. 

The Civil Code dedicates a special section to personal rights. 

Defamation 

Civil Code  
Article  483  of  the  Civil  Code  imposes  civil  liability  on  the  authors  of  illicit  facts.  If  a  person 
violates  someone  else’s  rights  or  any  legal  rule  that  protects  the  interests  of  others  with 
prejudicial intention or negligently illicitly is obliged to compensate the harmed person for the 
damage  caused.  Article  484  of  the  Civil  Code  also  foresees  liability  for  an  offence  against 
somebody else’s reputation or good name.  

Penal  Code  Article  180  of  the  Penal  Code  stipulates  a  penalty  for  defamation  of  up  to  six 
months of imprisonment (no minimum limit) or of a fine of up to 240 days (no minimum limit). 
Defamation is defined as a judgment about someone or the imputation to a person of a fact that 
is  offensive  of  her  honor  or  consideration  when  the  perpetrator  is  addressing  a  third  party. 
Suspicion  and  the  reproduction  of  one  offensive  imputation  or  judgment  are  also  considered 
defamation.  

The  aforementioned  conduct  shall  not,  however,  be  punished  when  the  imputation  is  made  in 
order to fulfill legitimate interests and the author proofs the veracity of such imputation or if he 
has  a  serious  basis  to  believe,  in  good  faith,  this  imputation  to  be  truthful  (180  nr  2).  Is  the 
assertion however related to a fact concerning the intimacy of private and family life, legitimate 
interest and truth are not considered adequate defenses, unless the defendant made the assertion 
in the exercise of a right, in the accomplishment of a duty imposed by law or legitimate order of 
authority or with the consent of the envisaged person (Article 180 nr 3 conjugated with Article 
31 al. b) c) and d)).  

Legal  provisions  concerning  defamation  are  established  under  the  assumption  that  the  author 
who addresses a third party with a conscientious intention to harm, imputes facts or suspicions 
to another person with prejudice of her honor or consideration. The author can claim good faith 
as a defense, except in those cases where he did not accomplish the information duty about the 
truth of the imputation imposed by the circumstances (Article 180 nr 4).  

Article 184 in connection with Article 132 nr 2 j of the Penal Code, establishes that the penalty 
may be increased to the double of its maximum and minimum limits whenever the victim is a 
member  of  a  body  that  exercises  sovereign  power,  of  the  State’s  Council,  Minister  of  the 
republic, magistrate, member of an organ of the government of one of the Autonomous Regions, 

74 Created by  in collaboration with Magda Cocco and Vasco Marques Correia, with particular reference to 
the document on defamation and press media created by the CDMC Secretariat of the European Council.. 
CDMC (2006)007. 

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Justice Purveyor, civil governor, member of an organ of the local autarchies or of an organ or 
service  of  public  authority,  commander  of  a  public  force,  member  of  a  court’s  jury,  witness, 
lawyer,  agent  of  security  forces  or  security  services,  public  officer  civil  or  military,  public 
forces  agent  or  a  citizen  in  charged  of  public  service,  teacher  or  examiner  or  a  minister  of 
religious cult, and the claim relates to the victim, being in the exercise of his/her functions or the 
offence is made because of them. The same applies if the author is a public officer and acts with 
serious abuse of authority (Article 184 coordinated with Article 132 nr 2 j).  

Article 183, nr 1 states that if the defamation is committed through means or in circumstances 
that facilitate its public diffusion or when the defamation is about the imputation of facts, and it 
is determined that the author knew that those facts where not true, the penalty shall be increased 
by 1/3 of its minimum and maximum limits. If the crime is committed through the media, the 
author  may  be  punished  with  an  imprisonment  penalty  of  up  to  2  years  or  with  a  fine  never 
inferior to 120 days (Article 183 nr 2).  

The  court,  nevertheless,  may  refrain  from  a  penalty  if  the  author  explains  the  offensive  claim 
before the court and the claimant considers it as satisfactory. The court refrain from a penalty if 
the offence was provoked by an illicit or a reprehensible act by the offended claimant.  

Article 328 nr 1 provides a penalty of a maximum imprisonment of up to 3 years or a fine for 
offending the President of the Republic or the person who constitutionally replaces him. If the 
insult or defamation against the head of state are made through public speech, published writing 
or  drawing,  or  through  any  technical  public  communication  method  (technical  means  that 
allows  communication  with  the  public),  the  author  may  be  punished  with  an  imprisonment 
penalty from 6 months up to 3 years or with a fine never inferior to 60 days.  

In the Portuguese legal framework, defamation is considered a private crime. This means that in 

55 

order to the alleged crime be submitted to trial a private accusation is required
(Article 188 nr 
1). Such requirement does not, however, exist in those cases in which the victim is a member of 
a  body  that  exercises  sovereign  power,  of  the  State’s  Council,  Minister  of  the  republic, 
magistrate, member of an organ of the government of one of the Autonomous Regions, Justice 
Purveyor, civil governor, member of an organ of the local autarchies or of an organ or service of 
public authority, commander of a public force, member of a court’s jury, witness, lawyer, agent 
of security forces or security services, public officer civil or military, public forces agent or a 
citizen  in  charged  of  public  service,  teacher  or  examiner  or  a  minister  of  religious  cult  in  the 
exercise of his/her functions or because of those functions (Article 188 nr 1 a)).  

Developments in the application of criminal and civil law provisions concerning defamation 
at domestic level  

In  2003,  3  971  cases  of  defamation,  injury  and  other  crimes  against  a  person’s  honor  were 
brought before courts and 1 494 defendants were convicted.  
Currently  the  question  of  decriminalization  of  defamation  is  still  under  consideration  by  the 
Portuguese authorities.  

2. Applicable law 

Most Portuguese conflict rules are found in the Civil Code. For the Portuguese, personal law is 
the law of citizenship. 

The Civil Code establishes that personal law applies to the existence and protection of personal 
rights, as well as to restrictions on the exercise of those rights. Therefore it is citizenship that 

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determines  the  concession  of  individual  rights,  the  content  of  each  of  those  rights  and 
restrictions placed upon the exercise thereof. 

Art 27 Civil Code – Rights of the Person  

5.  Personal  law  applies  to  existence  to  judicial  protection  not  recognised  according  to 
Portuguese law 
 6.  Personal  law  determines  if  a  personal  right  exists  and  which  of  the  personal  rights  are 
protected.  
7. With regard to foreign individuals we believe the correct interpretation is that personal law 
for  the  foreign  individual  determines  the  content  of  the  complaint  while  the  Portuguese  law 
determines the procedural route by which the complaint may be made. This interpretation is the 
only one conforming with another basic principle of international private Portuguese law which 
states that Portuguese law is always lex fori in procedural matters. 
8.  Notwithstanding  the  above  consideration  with  regard  to  civil  responsibility  (e.g.  offence) 
Portuguese law offers protection for personal rights and privacy. 

In the Civil Code the conflict rule concerning the law applicable to responsibility is determined 
by the law on non-contractual obligations which brings forth formal rights for the person and for 
privacy.    

ARTIGO 45º 
(Responsabilidade extracontratual) 
1.  A  responsabilidade    extracontratual  fundada,  quer  em  acto  ilícito,  quer  no  risco  ou  em 
qualquer  conduta  lícita,  é  regulada  pela  lei  do  Estado  onde  decorreu  a  principal  actividade 
causadora  do  prejuízo;  em  caso  de  responsabilidade  por  omissão,  é  aplicável  a  lei  do  lugar 
onde o responsável deveria ter agido. 
2. Se a lei do Estado onde se produziu o efeito lesivo considerar responsável o agente, mas não 
o considerar como tal a lei do país onde decorreu a sua actividade, é 
aplicável  a  primeira  lei,  desde  que  o  agente  devesse  prever  a  produção  de  um  dano,  naquele 
país, como consequência do seu acto ou omissão 
3. Se, porém, o agente e o lesado tiverem a mesma nacionalidade ou, na falta dela, a mesma 
residência habitual, e se encontrarem ocasionalmente em país estrangeiro, 
a lei aplicável será a da nacionalidade ou a da residência comum, sem prejuízo das 
disposições do Estado local que devam ser aplicadas indistintamente a todas as pessoas. 

Art. 45  (Civil Responsibility) 1. Civil responsibility, arising from a legal or illegal act, or the 
constitution  of  strict  liability,  is  governed  by  the  law  of  the  country  where  the  act  occurred 
giving rise to the harm; or, in the case of liability by omission, the law of the country where the 
act ought to have occurred. 2. If the law of the country where the harm occurred considers the 
agent  liable,  but  the  laws  of  the  country  where  the  act  giving  rise  to  the  harm  does  not,  the 
former law is applicable on condition that the agent could have prevented the existence of the 
harm (the act), in that country, as a consequence of his / her action.   
3. However, if the person sustaining harm and the appellant are of the same nationality, or in the 
lack thereof the same usual country of residence, and they find themselves from time to time in 
the same foreign country, the applicable law is the law of their common nationality or residence, 
without prejudice to the provisions of the local country which must currently be applied to all 
individuals. 

3. Transposition of the Directive 

The  law  relating  to  personal  data  protection,  transposes  to  the  Portuguese  Law  Directive 
95/46/CE  of  the  European  Parliament  and  the  Council  of  October  24th  1995,  concerning  data 

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protection on physical citizens, taking into account the treatment of personal data and the free 
movement of such data. 

Art. 4 establishes its scope of application and in paragraph 3 reference is made to the present 
law in treating information accrued in the realm of activities carried out by the responsible party 
on Portuguese territory 

Art 4 “A presente lei aplica-se ao tratamento de dados pessoais efectuado: 
a)  No  âmbito  das  actividades  de  estabelecimento  do  responsável  do  tratamento  situado  em 
territorio português; 
b)Fora do território nacional, em local onde a legislação portuguesa seja aplicável por força  
do direito internacional; 
c)  Por  responsável  que,  não  estando  estabelecido  no  território  da  União  Europeia,    recorra, 
para  tratamento  de  dados  pessoais,  a  meios,  automatizados  ou  não,  situados  no  território 
português, salvo se esses meios só forem utilizados para trânsito através do território da União 
Europeia” 

It respects the Directive 

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Romania75 

1. APPLICABLE LAW 

The  Constitution  of  Romania  in  article  26  establishes  the  fundamental  right  to  privacy.  This 

article provides that:  

“(1)  The  public  authorities  shall  respect  and  protect  the  intimate,  family,  and 
private life. 
(2)  Any  natural  person  has  the  right  to  freely  dispose  of  himself  unless  by  this  he 
causes an infringement upon the rights and freedoms of others, on public order, or 
morals”.  

Concerning  the  legislation  that  implements  this  right,  there  is  no  special  regulation  having  a 

general  applicable  feature.  For  the  protection  of  such  rights,  the  general  civil  or  criminal  law 

norms are used. As legal provisions of the civil law, we mention art. 998-999 Civil Code:  

Art. 998. – “Any deed of a person, who damages another, binds the one in fault to remedy 
such damage”. 
Art. 999. – “A person shall be held liable not only for the damage caused by its actions, but 
also for the damage caused through its negligence or imprudence”. 

These  articles  protect  natural  and/or  legal  persons  against  damages  caused  in  any  way  by 

another person. Based on these articles several judgments have been pronounced, by means of 

which  it  has  been  decided  the  compensation  of  material  or  moral  damages  incurred  by  one 

person through harmful actions. 

As criminal law means applicable in the matter of protection of persons’ legitimate rights and 

interests in connection with the extra-contractual obligations resulting from violations of rights 

related to private life issues and personality rights, we mention art. 205 and 206 of the Criminal 

Code (Cod Penal). 

2. CONFLICT OF LAW 

Law  no.  105  of  22  September  1992  on  the  Settlement  of  the  Private  International  Law 

Relations, governs the matter of the law applicable to extra-contractual obligations arising from 

infringement of personality rights by the media.  

75 Irena Tudorie and Gabriela Constantin (Popovici Nitu and Asociatii Attorneys at Law) and 

the University of the Basque Country. 

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The  first  point  that  becomes  clear  is  that  the  law,  taking  account  of  the  special  nature  of 
moral damage, lays down specific laws for the settlement of these points76. Thus, Art. 112 of the 

Law provides that: 

“(1)  The  claims  for  redress  based  on  a  prejudice  caused  to  the  personality  by  the  mass 
media,  especially  by  press,  radio,  TV  or  by  other  public  means  of  information  shall  be 
governed, at the choice of the injured person, by:  
a) the law of the state of his domicile or residence;  
b) the law of the state where the damaging outcome emerged;  
c)  the  law  of  the  State  where  the  author  of  damage  has  his  domicile  or  residence  or 
registered office.  
(2) In cases provided under letters a) and b) it shall also be required that the author of the 
damage  should  have  reasonably  expected  that  the  effects  of  the  prejudice  caused  to  the 
personality be produced in one of the two states”.  

Pursuant on this article the injured party can opt that any of the three following laws should 

apply:  the  law  of  the  state  of  his  domicile  or  residence,  the  Law  of  the  state  in  which  the 

deleterious  effects  arose  or  the  law  of  the  state  in  which  the  author  of  the  injury  has  his 

domicile, residence or its registered office.  In choosing between the three options, the injured 

party's position is clearly to be favoured.  

Notwithstanding, as is stated in the second section of this article, if the injured party wishes 

to opt for application of the law at a) and b) the following will also be needed: the author of the 

injury should have had a reasonable expectation that the effects of the personality injury would 
have been produced in one of these two States77. Therefore, in this way, by this limitation the 

existence of a relationship is asserted between the author and effect of the injury in a particular 
place78.  

However, in Romania there is some debate as to whether the law of the habitual residence of the 

injured party has a separate significance. According to the majority opinion, habitual residence 

is a variant of the place of effect, so that it will only be applicable if injury was incurred there as 
well, and that will be the case only if the publication was distributed in that place79. Only thus 

can the limitation of the second section be understood, which for application of the law of the 

state of the injured party's residence, requires that the author should reasonably have foreseen 
the production of injury in that state80.  

76 R. Bogdan Bobei, Legea nr. 105/1992 cu privire la reglementarea raporturilor de Drept 

International Privat, 2005. 

77 See ibid. 
78 T. Kadner Graziano, Gemeineuropaisches Internationales Privatrecht, Tubingen, 2002 
79 Cf. Ibid. 
80 Ibid. 

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Finally, Art. 113 of the Law provides specific legislation for instances involving claims that 

do not involve seeking damages, but the right of reply or correction. In these cases this right will 

be governed by the law of the state in which the broadcast or publication was took place. 

3. CASE LAW ON CONFLICT OF LAW 

We are not aware of any specialised case law applicable to this field. 

4. SPECIALISED COURTS 

At  the  moment,  in  Romania,  there  are  no  legal  courts  specialized  in  the  settlement  of  media/ 

press  litigations.  Any  such  litigation  is  subject  to  common  law  courts  (courts  of  justice,  law 

courts,  courts  of  appeals,  the  High  Court  of  Cassation  and  Justice),  in  compliance  with  the 

general procedural rules included in the Romanian Civil Code.  
However, there is an administrative entity in the media field, which has jurisdictional powers81. 

It  is  the  National  Audiovisual  Council,  authority  having  jurisdictional  powers,  which  reviews 

the  violation  of  de  jure  norms  of  the  audiovisual  domain  and  enforces  penalties  accordingly. 

There is no liability in connection with resorting to this entity’s jurisdiction prior or instead of 

informing law courts. 

5. EC DIRECTIVE 95/46/EC  

There are regulations in the Romanian law which are adopted for the enforcement of Directive 

95/46/EC on the protection of natural persons in connection with the process of personal data 

and  the  free  movement  of  such  data.  Law  No.  677/2001,  Law  no.  102/2005  and  Law  No. 

506/2004. 

The Law No. 677/2001, in Art. 2.2, implements the provisions of Art. 4 of Directive 95/46/EC 

of the European Parliament and Council of 24 October 1995 relating to the protection of natural 

persons in terms of processing personal data and free circulation of such data. According to this 

provision: 

“The present law applies to: 
a)  personal data  processing, carried out within the activities of data controllers based in 
Romania; 
b)  personal  data  processing,  carried  out  within  the  activities  of  Romanian  diplomatic 
missions or consular offices; 

81   By  jurisdictional  power  it  is  understood  the  competence  of  an  authority  to  settle  the 
dispute,  following  a  procedure  based  on  contradictoriness  and  ensuring  the  right  to  defense, 
and pronouncing a binding decision for both parties. 

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c) personal data processing, carried out within the activities of data controllers not based 
in Romania, by using any means on Romanian territory, unless these means are only used 
for transiting the processed personal data through Romanian territory. 
(3)  In  the  circumstance  referred  to  in  paragraph  (2)  letter  c),  the  data  controller  must 
designate  a  representative  which  must  be  a  person  based  in  Romania.  The  provisions  of 
this law, applicable to the data controller, are also applicable to his representative, without 
prejudice  to  legal  actions  which  could  be  initiated  before  a  court  of  law  against  the 
controller himself”. 

This  provision  diverges  from  the  provisions  of  the  Directive  in  the  following  way:  the 

Directive  lays  down  that  national  Law  shall  be  applicable  when  the  persons  responsible  for 

processing the data are not established in any member State, and where they process personal 

data  using  resources,  automated  or  otherwise,  located  in  the  territory  of  the  state,  the  law  of 

which  is  held  to  be  applicable.  Nevertheless,  Romanian  law  will  be  applicable  when  this 

controller  happens  not  to  be  established  in  Romania,  for  example  in  another  member  State, 

thereby  widening  the  scope  of  application  of  the  law  from  that  set  out  in  the  Directive.  This 

constitutes  failure  to  comply  with  the  Directive  and  might  have  the  consequence  that  rulings 

handed down by the Romanian courts would not be recognised in other member states if the law 

applied in circumstances not provided for in the Directive. 

6. BIBLIOGRAPHY 

Bogdan  Bobei,  R.:  Legea  nr.  105/1992  cu  privire  la  reglementarea  raporturilor  de  Drept 

International Privat, 2005. 

Kadner Graziano, T.: Gemeineuropaisches Internationales Privatrecht, Tubingen, 2002. 
Ungureanu, O., C. Jugastru and A. Circa: Manual de drept. internaţional privat, 2008. 

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Slovakia82 

1. SUBSTANTIVE LAW 

The  right  of  privacy  is  provided  in  art.  19  of  the  Constitution  of  Slovakia. 

According to this provision:  

“(1) Everyone has the right to the preservation of his human dignity and personal honor, 
and the protection of his good name. 
(2)  Everyone  has  the  right  to  protection  against  unwarranted  interference  in  his  private 
and family life. 
(3) Everyone has the right to protection against the unwarranted collection, publication, or 
other illicit use of his personal data”.  

 The  legal  development  of  this  right  can  be  found  in  various  regulatory  instruments. 

Defamation in Slovakia, in addition to being a crime regulated by the Criminal Code (Law No 
140/1961), is regulated in the Civil Code (Law No 40(1964)83.  In art. 11 of the Civil Code it is 

stated that: 

“Any natural person has the right to protection of his or her personality, in particular of 
his  or  her  life  and  health,  civil  and  human  dignity,  privacy,  name  and  personal 
characteristics”.  

A person whose personal rights have been violated unjustifiably according to art. 13 of the 

Civil Code shall be able to request that the said violation be terminated and the consequences 

originating therefrom be eliminated, in order to obtain appropriate satisfaction. In those cases in 

which  such  satisfaction  is  insufficient,  because  the  dignity  and  social  standing  of  the  affected 

person have been considerably diminished, the affected person may apply for compensation for 

non-pecuniary damages. 

2. RULES OF CONFLICT 

In Slovakian Law the rule of conflict relating to instances of privation of personal rights is 

to  be  found  in  Law    No  97/1963,  on  International  Private  and  Procedural  Law.  There  is  no 

specific piece of legislation that regulates cases of infringement of personality rights; therefore, 

82 University of the Basque Country. 
83+++Secretariat of the Council of Europe:+++ “Examination of the alignment of the laws on 

defamation with the relevant case law of the European Court of Human Rights, including the 
issue of decriminalisation of defamation”, Strasbourg, 2006,  pp. 99-100. 

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the general rule concerning non-contractual obligations will apply. According to art. 15 of the 

Law: 

"Claims to compensation of damages shall be governed by the law of the place where the 
damages occurred or by the law of the place where it came to the event that justifies the 
right  to  compensation  of  damages  unless  the  matter  is  non-fulfillment  of  an  obligation 
following from agreements or other legal acts”. 

Accordingly, compensation claims for damages caused in relation to personality rights will 

be  regulated  by  the  law  of  the  place  where  the  damages  have  occurred  and  by  the  law  of  the 

place where the act giving rise to the damages took place.  

Applying this provision to the damages of personality caused by publications in the press, 

we  can  conclude  that  the  Law  of  the  State  where  the  publication  took  place,  the  Law  of  the 

States of distribution, or any State where damages have occurred in respect of the privacy rights 

of individuals, may apply.  

3. CASE LAW CONCERNING RULES OF CONFLICT 

We have no evidence of the existence of case law relating to violation of personality rights 

with a transborder element. 

4. SPECIALISED COURTS 

We  have  no  evidence  of  the  existence  of  specialised  courts  for  resolving  differences 

relating to violations of personality rights originating in the media. 

5. DIRECTIVE 95/46/CE 

Provisions 2 and 3 of art. 1 set out the scope of application of Act No. 428/2002 Coll. on 

Protection of Personal Data, as amended by Act No. 602/2003 Coll., Act No. 576/2004 Coll and 

Act No. 90/2005 Coll, according to which Directive 95/46/EC of the European Parliament and 

of the Council of 24 October 1995 relating to the protection of natural persons concerning the 

processing  of  personal  data  and  the  free  circulation  of  such  data,  is  transposed.  According  to 

these provisions: 

“(2)  This  Act  applies  to  the  state  administration  authorities,  territorial  self-government 
authorities,  other  public  authority  bodies,  as  well  as  to  other  legal  and  natural  persons, 

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which  process  personal  data,  determine  the  purpose  and  means  of  processing  or  provide 
personal data for their processing. 
(3)  This  Act  also  applies  to  the  controllers,  which  do  not  have  their  registered  office  or 
permanent residence on the territory of  

a)  the  Slovak  Republic  but  are  located  abroad  at  a  place,  where  the  laws  of  the 

Slovak Republic take precedence based on an international public law, 

b) a Member State of the European Union, provided that for the purposes of personal data 
processing they use fully or partially automated means or other than automated means of 
processing located on the territory of the Slovak Republic, while such means of processing 
are  not  used  solely  for  the  transfer  of  personal  data  through  the  territory  of  the  Member 
States of the European Union; in such case the controller shall proceed pursuant to Section 
23. Paragraph 3.” 

As  can  be  observed,  the  provision  of  art.  4  of  the  Directive  has  been  faithfully 

transposed to domestic legislation. 

6. BIBLIOGRAPHY 

Secretariat of the Council of Europe: “Examination of the alignment of the laws on defamation 
with the relevant case law of the European Court of Human Rights, including the issue of 
decriminalisation of defamation”, Strasbourg, 2006. 

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Slovenia84 

1. SUBSTANTIVE LAW 

Article  35  of  the  Slovenian  Constitution  (Protection  of  Rights  to  Privacy  and 

Personality Rights) provides that: “the inviolability of the physical and mental integrity 

of every person, his privacy and personality rights shall be guaranteed”. Therefore, as 

fundamental  rights  of  the  individual,  privacy  and  personality  are  protected  by  the 

Slovenian supreme legislation.  

When  an  individual  suffers  a  violation  of  his  private  life,  intimacy,  dignity  or  any 

other right of a similar nature, the method of redressing the damage is established in the 

Obligation  Code.  Art.  179  of  the  Obligation  Code  provides  that  a  person  who  is  a 

victim  of  “defamation  of  good  name  or  reputation,  the  truncation  of  freedom  or  a 

personal right” shall be able to demand the payment of “just monetary compensation”. 

The extent of the compensation for intangible damages will depend on the importance 

of the affected asset and the purpose of the compensation.  

One  of  the  things  which  is  very  important  concerns  the  Court  Decisions.  Only  de 

infringements  of  personal  privacy  and  personality  rights  itself  is  not  enough.  The 

infringement must also cause some damage, so called mentality pain and circumstances 

of each case, particularly the power of pain and the time lasting of the pain must excuse 

equitable money amount. 

2. RULES OF CONFLICT 

In  Slovenian  Law  no  special  rule  of  conflict  exists  for  cases  of  non-contractual 

obligation deriving from the violation of privacy or personality rights. Accordingly, the 

applicable rule will be the general rule intended for cases of non-contractual obligations. 

This is art. 30 of the Private International Law and Procedural Act. This rule provides 

that,  

“1. for non-contractual liability for damages, the law of the place where the action 

was committed shall be used. If it is more favourable for the injured party, the law 

of the place where the consequence occurred shall be used instead, but only if the 

84 Rok Janez Steblaj and the University of the Basque Country. 

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perpetrator could not have foreseen or should have foreseen the location where the 

consequence occurred. 

2.  If  the  law  determined  under  the  first  paragraph  of  this  Article  does  not  have  a 

close  connection  to  the  relation,  and  a  connection  with  some  other  law  obviously 

exists instead, then that law shall be used”. 

 This rule clearly favours the position of the victim of a violation of his privacy or 

his personality rights. In the event that it is more favourable for the victim, the law of 

the place where the consequences of the said action have manifested themselves can be 

applied, instead of the law of the place where the action giving rise to the damage took 

place, always provided that the other party could have foreseen that the damages would 

be extended to that other place. 

Now, the possibility of opting for the application of the law that is most favourable 

to the interests [of the victim] is not of unlimited scope. That is to say, in no way does it 

seek  to  safeguard  the  position  of  the  perpetrator  of  the  unlawful  act  limiting  the  said 

possibility. Accordingly, the law of the place where the damages were manifested could 

be applied if it is considered to be more favourable to the victim, always provided that 

this  option  does  not  amount  to  a  clear  injustice  for  the  perpetrator  of  the  damage  by 

involving  the  application  of  a  law  not  anticipated  by  the  latter.  That  is  to  say, 

irrespective  of  the  applicable  law,  its  application  should  be  foreseeable  for  the 

perpetrator  of  the  damage;  this,  in  turn,  will  be  foreseeable  when  the  perpetrator  can 

foresee that the damages resulting from his action could be manifested in the said State. 

In  addition  to  favouring  the  position  of  the  victim,  the  second  section  of  art.  30 

provides for a rule according to which, when the law of the place of the occurrence or 

the laws of the States where the damage was manifested involve the application of a law 

that  is  not  closely  connected  with  the  relationship,  but  the  said  connection  exists  with 

respect  to  another  law,  the  latter  may  be  applied.  This  rule  introduces  a  degree  of 

notable  flexibility  in  the  rule.  The  Court  that  hears  the  matter  must  evaluate  these 

questions  and  decide  as  appropriate  on  the  application  of  a  Law  other  than  those 

indicated in the first section of art. 30. In principle, this Law may be of any other State, 

always provided that there is a close connection with the relationship.  

What are the circumstances to be taken into consideration when determining the said 

connection?  In principle, the  rule  says nothing  in this  respect, and  therefore  the Court 

may take into account any circumstances that it considers to be appropriate in order to 

demonstrate this close connection. With time, case law should identify what these links 

are  and  the  relevance  of  each  of  them.  However,  together  with  the  flexibility,  this 
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provision  introduces  a  degree  of  uncertainty  which  may  act  against  the  value  of 

foreseeability of the rule. 

3. CASE  LAW  CONCERNING  RULES  OF 

CONFLICT 

We  have  no  evidence  of  the  existence  of  case  law  relating  to  non-contractual 

damages  originating  from  the  violation  of  privacy  and  personality  rights  with 

transborder elements. 

4. SPECIALISED COURTS 

We have no evidence of the existence of specialised courts for resolving differences 

relating to violations of personality rights originating in the media. 

5. DIRECTIVE 95/46/EC 

The  rule  that  transposes  the  Directive  is  the  Personal  Data  Protection  Act  of  the 

Republic  of  Slovenia.  It  is  art.  5  that  incorporates  art.  4  of  the  Directive,  when  the 

domestic rule is applied. This article indicates that: 

“(1) This Act shall apply to the processing of personal data if the data controller is established, 
has its seat or is registered in the Republic of Slovenia, or if a subsidiary of the data controller is 
registered in the Republic of Slovenia. 
(2) This Act shall also apply if the data controller is not established, does not have its seat or is 
not  registered  in  a  Member  State  of  the  European  Union  or  is  not  a  part  of  the  European 
Economic  Area  and  for  the  processing  of  personal  data  the  data  controller  uses  automated  or 
other  equipment  located  in  the  Republic  of  Slovenia,  except  where  such  equipment  is  used 
solely for the transfer of personal data across the territory of the Republic of Slovenia. 
(3)  The  data  controller  from  the  previous  paragraph  must  appoint  a  natural  person  or  legal 
person that has its seat or is registered in the Republic of Slovenia to represent it in respect of 
the processing of personal data in accordance with this Act. 
(4)  This  Act  shall  also  apply  to  diplomatic-consular  offices  and  other  official  representative 
offices of the Republic of Slovenia abroad.” 

The  said  article  reproduces  the  provisions  of  the  Directive,  and  therefore  it  is 

possible to affirm that the transposition has taken place correctly. 

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SPAIN85 

1. Internal rules 

a)  Right to privacy and to private life   

In Spain the right to privacy and to private life is recognised constitutionally in article 18 of the 
CE (Spanish Constitution). The right to privacy is dealt with in the first part of chapter II under 
heading I of the CE, in which fundamental rights are proclaimed. 

b)  Right to freedom of expression and the freedom of information 

The  right  to  freedom  of  expression  and  the  right  to  the  freedom  of  information  are  found  in 
articles 20. 1 a) and d) of the CE.  

Jurisprudence Right to privacy and to private life versus the right to freedom of the press 

•  STC (Judgement of the Constitutional Court) 134/1999, FJ 5, (with reference to STCs 
73/1982,  of  2  December;  10/1984,  of  26  November;  231/1988,  of  2  December; 
197/1991,  of  17  October;  143/1994,  of  9  May,  and  151/1997,  of  29  September)  is  an 
established doctrine of this Court that the fundamental right to privacy recognised in CE 
art. 18.1 is intended to guarantee individuals a private aspect to their lives, linked to the 
respect  for  their  personal  dignity  (CE  art.  10.1),  when  faced  with  the  actions  or 
knowledge of other parties be they public authorities or private individuals. The right to 
privacy  gives  rise  to  the  right  to  protect  this  private  aspect  of  life  from  divulgence  of 
information concerning it by third parties and from unwanted publicity, not just for the 
person  but  for  the  family  (STCs  231/1988,  of  2  December,  and  197/1991,  of  17 
October). (...) CE art 18.1 guarantees, therefore, the secrecy of our own private sphere 
and  prevents  third  parties  –  be  they  individuals  or  public  authorities  -  from  deciding 
what the boundaries of our private life should be. 

•  STC151/1997, of 29 September 
•  STC 143/1994, of 9 May 
•  STC  254/1993,  F.  J.6:    Together  with  the  general  declaration  on  the  right  to  privacy, 
some facets of the same are specifically recognised, such as domestic privacy, freedom 
and confidentiality of private communications or secrecy of communication, in order to 
arrive at the constitutionalisation of the habeas data or informatics aspect of privacy.  
•  STC 29/1992, FJ 3, "where reporting results from the public interest (STC 171/1990, FJ 
5,  for  all)  it  may  then  only  apply  to  that  which  affects  or  disturbs  the  content  of 
information which is necessarily in the interests of wider knowledge and fact spreading 
and  situations  of  interest  to  the  community.  (…)”.  But  that  immunity  may  only  be 
granted “for the right to information concerned if the disseminated matter affects by its 
aim  or  value  the  public  realm  not  coinciding  with  that  which  may  merely  arouse  or 
awaken the curiosity of others". 

•  STC 20/1992, of 14 February, FJ 3. “… regarding privacy, truth does not reduce, even 

presumptively, in any case, the injury” of the fundamental right”. 

•  STC 197/1991, FJ 4: "not all information regarding a person of public notoriety enjoys 
that  special  protection,  except  that  for  him  or  her  it  is  objectively  applicable  that, 

85  UBC.  Particular  attention  was  paid  to  the  document  on  defamation  and  press  media  created  by  the 
Secretariat of the CDMC at the Council of Europe. CDMC (2006)007. 

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alongside  that  subjective  element  of  the  affected  person’s  public  character,  the  facts 
comprising the information, by their public relevance, do not affect privacy, restricted 
though this may be.". 

•  STC 172/1990 of 12 November, FJ 2. “The criterion for determining the legitimacy or 
illegitimacy of intrusions on personal privacy is not that of truth but exclusively that of 
relevance to  the public of  the divulged fact, which is to say that submission to public 
opinion,  though  truthful,  must  necessarily  be  in  the  public  interest  with  regard  to  the 
subject in question".  
•  STC 12 November 1990 
•  STC 110/1984, FJ 3 
•  STC 231/1988, FJ 4: privacy and such facts affect not only the realm of personal 

privacy but also that of the family 

c)  Defamation in the Civil Code 

In Spain, protection for defamation is granted in the penal regime as well as via Organic Law 
1/1982  on  civil  protection  of  the  right  to  honour,  to  personal  and  family  privacy  and  to  the 
protection  of  personal  reputation.  This  law  provides  civil  protection  for  this  right  against 
illegitimate intrusions. Art. 7 specifically mentions: imputation of value judgments via acts or 
expressions  which  harm  the  dignity  of  another  person  by  lowering  their  reputation  or  self 
respect 

According to article 9.2, this civil protection consists of sentencing to compensate for damages 
done;  and  article  9.3  states  that  there  is  the  presumption  of  damage  wherever  an  illegitimate 
intrusion  has  occurred.  Compensation  shall  extend  to  moral  harm,  as  relevant  for  the 
circumstances of the case and the seriousness of the injury effectively produced. In all cases the 
means of diffusion or the audience of the mass communication media is kept in mind. 

Practical applications 

Organic  Law  15/2003,  of  25  November,  modified  the  Penal  Code  by  introducing  certain 
modifications in these types of offenses, and one may observe its modification from the article 
206  types  of  Penal  Code:  increase  of  the  minimum  applicable  fine  for  the  offence  of  public 
defamation  and  the  minimum  and  maximum  amounts  applicable  to  the  offence  of  non-public 
defamation. Investigation by officially named lawyer was introduced for these types of offences 
should  the  injured  party  be  a  government  employee  or  authority  acting  in  a  professional 
capacity. 

In  the  civil  order  we  see  that  Regulation  4  final  ª  of  Organic  Law  10/1995,  of  23  November, 
which  adopted  the  Penal  Code,  gave  a  new  reading  to  article  7.7  of  Organic  Law  1/1982:  we 
consider as an illegitimate intrusion upon reputation the imputation of facts or the manifestation 
of value judgments which harm the dignity of another person, lowering his or her reputation or 
self respect. 

In June 2004 the Supreme Court upheld the conviction of a newspaper for insulting the former 
King of Morocco. The newspaper had written that the former King had been involved in drug 
trafficking  and  though  the  court  recognised  that  the  accusation  was  true,  it  convicted  the 
newspaper of having damaged the reputation of the former King. Reference must be made to the 
ECTHR trial Colombani v others France of 26.02.2002, in which violation of ECHR Article 10 
was found for similar reasons. 

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2. Applicable law 

General extra-contractual rule 

Chapter IV of the Civil Code, on International Privacy Law Rules, establishes in art. 10.9.I that 
non-contractual  obligations  should  come  under  “the  law  of  the  place  where  the  fact  occurred 
from which they derived”. 

Jurisprudence 
SAP Madrid sec1, 4 January 1994 

Qualification and public order 
Article 12 Cc: 

1. Qualification for determining the applicable conflict rule shall always be made in accordance 
with Spanish law.  
2. Referral to foreign law shall be deemed made to the material law, notwithstanding the 
transfer that its conflict rules may make to another non-Spanish law.  
3. In no case shall foreign law be of application when it is contrary to the public order.  

Special rule for offences against private life 
There is no special rule.  

3. Transposition of Directive 95/46/CE 

In Spain the transposition of the Directive took place towards the end of 1999 through: 

• 

Organic  Law  15/1999,  of  13  December,  on  protection  of  data  of  a  personal  nature, 
(BOE (Official State Gazette) no. 298, of 14 December 1999). 

The LOPD (Organic Law on Data Protection) presumes the repeal of Organic Law 5/92, of 29 
October, on regulation of the automated processing of personal data (henceforth referred to as 
LORTAD) and the transposition of Directive 95/46/CE to Spain’s internal order The objective 
of LOPD is to guarantee and protect public liberties and the fundamental rights of individuals, 
especially  of  their  reputation  and  personal  and  family  privacy  with  regard  to  treatment  of 
personal data (art. 1). 

Art. 2.1 of Organic Law 15/1999 concerns the applicable Law, stating: 

Article 2. Scope. General rule 

1.  This  Organic  Law  shall  apply  to  personal  data  registered  on  a  physical  medium,  making  it 
suitable  for  processing,  and  to  all  methods  of  later  use  of  this  data  by  the  public  and  private 
sectors. 
All processing of personal data shall be governed by this Organic Law: 
a) When the processing is carried out on Spanish territory within the framework of the activities 
of an establishment of the party responsible for the processing. 
b) When the party responsible for the processing is not established in Spanish territory, Spanish 
legislation will be applicable when applying the rules of public International Law. 

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c) When the party responsible for the processing is not established in the European Union and 
uses in the processing of data media situated in Spanish territory, except where such media are 
used only for the purposes of transport. 

Scope of application 

We note that this law includes all relationships pertaining to the compilation of data even where 
they are between individuals or the Administration, public or private. 

4. Conclusions 

Organic  Law  15/1999,  of  13  December  does  not  seem  to  follow  the  criterion  chosen  by  the 
Directive in that it does not refer to the country of residence of the party responsible for the file 
but seems to point to the “place where data is processed”.  

We note that in the Spanish order, art. 4 c) Directive 95/46/CE is used in a general sense while 
the  criterion  established  by  the  Directive  in  reference  to  the  residence  of  the  data-gathering 
business is set aside.  
In one sense this option simplifies cases in which the responsible company is not located in non-
Community third countries, given that for the purposes of the Spanish law attention will be paid 
to  neither  the  company’s  residence  nor  its  nationality.  The  main  criterion  is  lex  loci  delicti 
commissi and there is no differentiation whether the data processing is carried out by a company 
resident in the EU or not, in contrast to the Directive. As a consequence of this differentiation 
one  may  state  that  the  objective  of  protecting  Community  data  processing  companies  derived 
from the Directive seems to have been lessened during transposition to Spain. 

Jurisprudence  

• STC  292/2000,  of  30  November,  FJ  6  and  7:  “the  content  of  the  fundamental  right  to 
data protection consists of a disposal and control power over personal data which allows 
the individual to decide which information to provide to a third party, be it the State or an 
individual,  or  which  information  this  third  party  may  obtain,  and  which  also  allows  the 
individual to know who possesses this personal data and for what reason, and allows the 
individual to oppose this possession or not.” 

5. Jurisdiction 

Autonomous legislation 

The special courts for the subject in hand are to be found in Art. 22.3 and 4 of the LOPJ. In such 
cases  Spanish  courts  shall  have  jurisdiction  when  there  is  a  lack  of  jurisdiction  in  the  general 
courts (Art. 22 LOPJ).  

Extracontractual obligations are found in art. 22.3, according to which Spanish courts shall have 
jurisdiction when the harmful event from which they derive occurred on Spanish territory or the 
right of the event’s author and victim are normally resident in Spain.  

Jurisprudence 

AP Balearic Islands (Section 3), sentence no. 771/2000 of 27 November. JURISDICTION OF 
SPANISH COURTS: INADMISSIBILITY: Action for illegitimate intrusion on right of honour: 

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publication  effected  abroad:  absence  of  express  or  tacit  submission  to  Spanish  courts:  foreign 
residence of the defendant; TERRITORIAL JURISDICTION: tacit submission: inadmissibility: 
formulation of international plea before responding to the action.  

Constitutional Court (First Division), sentence no. 300/2006 of 23 October 
Constitutional Court (Plenary Chamber), sentence no. 292/2000 of 30 November 

6. Summary 

1.  Autonomous  legislation:  In  Spain  the  right  to  privacy  and  private  life  is  recognised 
constitutionally  in  art.  18.  The  right  to  privacy  is  recognised  in  the  first  section  of  chapter  II 
under heading I of the Spanish Constitution, where the fundamental rights are proclaimed. The 
right to freedom of expression and the right to freedom of information are found in articles 20.1 
a) and d) of the Spanish Constitution. 
Organic Law 1/1982, of 5 May, on civil protection of the right to honour, to personal and family 
privacy and to self respect 
Jurisprudence  Right  to  privacy  and  private  life  versus  the  right  to  press  freedom:  STC 
134/1999, FJ 5, (with reference to SSTCs 73/1982, of 2 December; 10/1984, of 26 November; 
231/1988, of 2 December; 197/1991, of 17 October; 143/1994, of 9 May, and 151/1997, of 29 
September); STC151/1997, of 29 September; STC 143/1994, of 9 May; STC 254/1993. 

2. There is no specific regulation for incursions on private life committed by the press media 

3.  Transposition  of  the  Directive:  Organic  Law  15/1999,  of  13  December  does  not  appear  to 
follow  the  criterion  given  in  the  Directive  in  the  sense  that  it  does  not  refer  to  the  country  of 
residence  of  the  party  responsible  for  the  file  but  seems  to  refer  to  the  “place  where  data  is 
processed”.  

4.  Judicial  jurisdiction:  Extracontractual  obligations  are  found  in  art.  22.3  LOPJ  according  to 
which  Spanish  Courts  shall  have  jurisdiction  when  the  event  from  which  the  harm  derived 
occurred on Spanish territory or the rights of the author and victim of the harmful event have 
habitual rights in Spain.  

7. BIBLIOGRAPHY 

Miguel A. AMORES CONRADI, Elisa TORRALBA MENDIOLA (2004), “XI tesis sobre el 
estatuto delictual”, Revista Electrónica de Estudios Internacionales (www.reei.org ), nº 8, pp. 1-
34.  
SEUBA  TORREBLANCA,  J.  C.,  “Derecho  de  daños  y  Derecho  internacional  privado: 
algunas cuestiones sobre legislación aplicable y la propuesta de Reglamento “Roma II””, Indret 
1/2005.  
ESCOBAR  de  la  SERNA,  L:  Sociedad,  Información  y  Constitución.  Universitas.  Madrid 
1999.  
RUIZ  MIGUEL,  C:  La  configuración  constitucional  del  derecho  a  la  intimidad.  Tecnos. 
Madrid 1995.  
REBOLLO DELGADO, L: El derecho fundamental a la intimidad. Dykinson. Madrid 1999  
SALVADOR CODERECH, P: El mercado de de las ideas. CEPC. Madrid 1990.  
SARAZA  JIMENA,  R:  Libertad  de  expresión  e  información  frente  al  honor,  intimidad  y 
propia imagen. Aranzadi. Pamplona 1995.  
URABAYEN,  M:  Vida  privada  e  información:  un  conflicto  permanente.  Eunsa.  Pamplona 
1977.  

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BERNAL DEL CASTILLO, J: Honor, verdad e información. Universidad de Oviedo. Oviedo 
1993.  
BOUCHARD,  M.  Ph:  Le  droit  d’acces  á  lìnformation:  une  valeur  proégee  par  la  liberté 
dèxpressio, en la obra de Pierre Trudel y France Abran, Droit du public à l’information et vie 
privée. Universidad de Montreal. Montreal 1992.  
CABEZUELO ARENAS, A. L: Derecho a la intimidad. Tirant lo blanch. Valencia 1998.  
CRUZ MORANTES, C: Información y artículo 18.1 de la Constitución Española, en la obra 
de  VV.AA,  Honor,  intimidad  y  propia  imagen.  Cuadernos  de  Derecho  Judicial  nº  XXXV. 
Consejo General del Poder Judicial. Madrid 1993.  
CRUZ VILLALÓN, P:- Los derechos al honor y a la intimidad como límite a la libertad de 
expresión en la doctrina del Tribunal Constitucional, en la obra de VV.AA.,Honor, intimidad y 
propia imagen. Cuadernos de Derecho Judicial nº XXXV. Consejo General del Poder Judicial. 
Madrid 1993.  
DELGADO PIQUERAS, F: “De nuevo sobre el derecho a la intimidad personal y familiar de 
los famosos y la libertad de información”. Revista Española de Derecho Constitucional nº 36 de 
1992.  
DESANTES GUANTER, J. Mª y SORIA, C: Los límites de la información. Asociación de la 
Prensa de Madrid. Madrid 1991.  
ESPINAR VICENTE, J. Mª: La primacía del derecho a la información sobre la intimidad y el 
honor,  en  la  obra  de  García  San  Miguel,  Estudios  sobre  el  derecho  a  la  intimidad.  Tecnos. 
Madrid 1992.  

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SWEDEN86 

1. National legislation  

The Swedish Constitution of 1974 in its second chapter recognises a list of rights and freedoms 
of the individual. Specifically, article 3 guarantees protection to citizens "against any injury to 
their personal integrity arising from holding data affecting them via electronic means". Also the 
inviolability  of  the  home  and  confidentiality  of  communications  are  the  subject  of  express 
legislation, in article 6 of the Swedish Grand Charter  

The Freedom of the Press Act  

Chapter 7 on offences against the freedom of the press  
Art.  4.  “With  due  regard  to  the  purpose  of  a  universal  freedom  of  the  press  as  set  forth  in 
Chapter 1, the following acts shall be regarded as offences against the freedom of the press if 
they are committed by way of printed matter and if they are punishable under law:  

14. libel, whereby a person alleges another is a criminal or is blameworthy in his way of life, or 
otherwise communicates information liable to expose the other to the contempt of others, and, if 
the person libelled is deceased, to cause offence to his survivors or which might otherwise be 
considered to violate the sanctity of the grave except, however, in cases in which it is justifiable 
having regard to the circumstances, or in order to provide information in the matter concerned, 
and proof is presented that the information was correct or that there were reasonable grounds for 
it; and  

15.  insulting  words  or  behaviour,  whereby  a  person  insults  another  by  means  of  offensive 
invective or allegations or by any other insulting behaviour towards him.”  
Both criminal and civil actions may be brought under the law on libel. Criminal actions may be 
brought  by  either  public  or  private  prosecution.  Public  prosecutions  are  rare  and  must  be 
conducted  by  the  Chancellor  of  Justice.  Normally,  public  prosecutions  are  only  brought  when 
the injured party is a civil servant in this capacity. For example, the Chancellor has prosecuted 
cases where police officers were libelled in the line of duty. Individuals normally sue jointly for 
criminal liability and civil damages.  

Opinions. Opinions or value judgements about a person can never be libellous. If formulated in 
a very insulting way, they may be judged as an affront (although there are few cases to illustrate 
this). If an opinion is based on implicitly expressed facts, it may thereby constitute a libel.  

Defence: Truth, Public Interest and Public Figures  
The key issue in many libel actions is whether the publication was "justifiable". A publication is 
justifiable when the public interest in the information (not to be confused with the interest of the 
public  or  general  curiosity)  overrides  the  interest  in  protecting  the  person  concerned.  For 
example,  it  would  be  considered  justifiable  to  publish  information  about  a  minor  tax  fraud 
committed  by  a  politician,  whereas  it  would  be  considered  unjustifiable  to  publish  the  same 
information concerning a person with no public record.  

86 UBC. Special attention was paid to the document on libel and the press and media prepared by the Secretariat of 
the CDMC [Spanish contemporary music broadcasting centre] for the Council of Europe  CDMC (2006)007. 

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Institutions. Companies, organisations and government authorities have no rights under the law 
on libel. As a result, the press enjoys great freedom in scrutinizing and criticizing government, 
business corporations, unions and other institutions.  

Insults  to  government  institutions  or  officials.  There  is  no  criminal  law  protecting 
government institutions from insults or libellous statements.  
The  last  remnant  of  such  legislation  disappeared  in  the  mid-1970s  when  a  provision  which 
prohibited  the  "belying  of  state  authority"  was  abolished  on  the  grounds  that,  in  a  democratic 
society,  government  institutions  should  be  open  and  responsive  to  all  criticism,  even  when 
based on lies. Although government officials enjoy protection under the law on libel, actions on 
their behalf are rarely brought.  

Developments  in  the  application  of  criminal  and  civil  law  provisions  concerning 
defamation at domestic level  

According  to  HRP,  the  independent  media  remained  active  and  expressed  a  wide  variety  of 
views without restriction (HRP, 2003).  

2. Applicable law  

The most important source of Polish private international is the law of 12 November 1965 on 
International Private Law. But international private law is only partly codified and consists of a 
collection of laws coming from Parliament and from case law. Most of the laws coming from 
Parliament have the objective of applying international agreements that Sweden has signed up 
to. 

Specific legislation on prejudice or injury  

•  Articles 8, 14 and 38 of the law of road traffic accidents (1975:1410).  
•  Article 1 of law (1972:114) relating to the Agreement of 9 of February 1972 on reindeer 

grazing entered into between Sweden and Norway.  

•  Article 1 of law (1974:268) relating to the agreement for protection of the environment 

of 19 of February 1974 signed between Denmark, Finland, Norway and Sweden. 

In general, the question of law applicable to non-contractual obligations is not governed by the 
legislation. In the ruling on case reference NJA 1969 s. 163, it was held that in non-contractual 
matters the liability for compensating for damage was determined in accordance with the law of 
the country in which the act causing the injury occurred (lex loci delicti). In this case the fact 
that  the  person  causing  the  injury  and  the  person  suffering  it  had  the  same  habitual  residence 
was not taken into account. There is no case law clarifying the question of which law would be 
applicable when the country in which the injurious act was performed is different to the one in 
which the injury took place.  

General law 

It is considered to be a general principle of Swedish private international law that no provision 
of  foreign  law  may  apply  when  it  is  clearly  incompatible  with  the  principles  of  that  country's 
general  law  system.  Provisions  of  this  nature  may  be  encountered  in  the  greater  part  of  the 
legislation on international private law. Nevertheless, it should not be understood from this that 
general law restrictions have to be based on legislation. There have been very few cases decided 
in which foreign law has not been applied on grounds of general law.  

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The courts are usually competent to decide which Swedish legislation is obligatory at an 
international level.  

3. Transposition of the Directive  

The European Directive was transposed in Sweden by the Personal Data Law of 29 April 1998 
(1998:204).  

Art. 4 established that this law would apply when the database controllers were established in 
Sweden. 

Also  when  the  controllers  were  established  in  a  third  country  but  where  they  used  resources 
situated in Sweden for collection of the data.  In spite of that, this does not apply in cases where 
resources situated in Sweden  are used for transfers from one third-party state to another third-
party state  

Art.  4  
This Act applies to those controllers of personal data who are established in Sweden. 
The Act is also applicable when the controller of personal data is established in a third country 
but for the processing of the personal data uses equipment that is situated in Sweden. 
However,  this  does  not  apply  if  the  equipment  is  only  used  to  transfer  information  between  a 
third country and another such country. 
In the case referred to in the second paragraph, first sentence, the controller of personal data 
shall appoint a representative for himself who is established in Sweden. The provisions of this 
Act concerning the controller of personal data shall also apply to the representative. 

COMPARISON.  According  to  Swedish  law,  Swedish  law  will  apply  when  the  file 
controller is established in Sweden (where they reside in Sweden). This adheres fully to the 
Directive.  
Moreover, equally with the Directive, Swedish law envisages that Swedish law will apply 
when the data controller is not located in Sweden but uses resources located in Sweden to 
collect data. In this it adheres fully to the Directive 

4. Judicial competence  

1. General law of territorial competence  
According to the general regulations, the case should be heard in the place of residence of the 
defendant. It is considered that a natural person is resident in the place in which they are on the 
electoral register. It is generally considered that legal entities are domiciled in the place in which 
they have their main office.  

It is also possible to bring a case before a Swedish court even although the person does not live 
in Sweden. If the defendant is not domiciled in Sweden, the case may be brought in the place 
where the defendant is situated or, in some cases, in their last known place of residence. In some 
civil  disputes,  legal  proceedings  may  be  brought  in  Sweden  even  although  the  defender  is 
resident  abroad.  It  is  of  crucial  importance  for  the  criteria  of  judicial  competence  that  the 
defender  should  own  property  in  Sweden  or  that  there  should  be  a  contract  concluded  in 
Sweden.  

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In international cases it is important to remember that the Swedish rules on judicial competence 
are  only  applicable  when  Swedish  authorities  have  judicial  competence.  In  the  majority  of 
cases,  Swedish  judicial  competence  exists  when  a  Swedish  court  is  competent  under  national 
legislation. In this matter applicable international agreements should also be taken into account.  

The  main  ones  for  Sweden  are  the  Brussels  I  Regulation,  the  Brussels  Convention  and  the 
Lugano Convention, which govern the judicial competence of courts if the defender is resident 
in a State covered in the Regulations or the Conventions. In these it is also established that the 
criteria  on  judicial  competence,  according  to  which  applications  for  liability  to  pay  may  be 
made in the place in which the defender may have property may not apply to a person resident 
in a member state or a state that is a signatory of the Convention.  

2. Specific legislation 

•  All  persons  who  may  have  suffered  injury  may  bring  actions  in  the  place  where  the 
injury  was  incurred  or  took  effect.  In  principle,  this  rule  does  not  apply  to  non-
performance  of  contract.  The  remedy  of  compensation  for  a  criminal  offence  can  be 
claimed at the same time as criminal proceedings.  

•  Consumers  may  bring  actions  against  a  supplier  of  services  before  the  jurisdiction  of 

• 

• 

that supplier, in retail consumer cases.  
 Cases relating to liabilities for payment stipulated by contract may be brought, in some 
cases, before the courts of the place in which the contract was signed. In contrast, there 
is no provision whatsoever in Swedish legislation conferring judicial competence on the 
courts of the place in which the contract was signed.  
In some cases actions may be brought against a business in respect of a dispute arising 
from an activity in the place where the activity was carried out 

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privacy and rights relating to personality. 
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UNITED KINGDOM87 

1. Material Law 

No  statutory  English  law  dealing  specifically  with  individual  privacy  rights  (or  similar 

infractions)  exists.  Data  protection  rules  recognise  some  limited  rights  with  respect  to 

processing of photographs or images but, apart from copyright, no statutory protection of image 

and personality rights exists. 

Regulations have developed through common law, via court rulings.  

In 2000, the European Convention on Human Rights (ECHR) was incorporated into English 

regulations via the Human Rights Act (HRA), entering into force in England and Wales in the 

year 2000. Under the HRA courts are obliged to act in a manner compatible with the laws of the 

ECHR and must take the decisions of the European Court of Human Rights into consideration. 

Thus the courts must bear in mind on the one hand article 8(1) of the EHCR, which guarantees 

individuals the right to private and family life, privacy of home life and correspondence, and on 

the other hand article 10, which recognises the right to freedom of expression. 

As a consequence of this statutory development, the courts have developed common law to 

bring the rights contained in the ECHR into full effect. The courts have extended common law 

in light of the ECHR to infractions of the obligations on confidentiality, thereby extending the 

redress available to individuals for infringement of their privacy. 

Common law is in a state of development and change. The extent of protection under art. 8 

of the ECHR has been defined by the courts on a case-by-case basis. The courts are gradually 

refining  the  test  which  serves  to  determine  whether  the  individual  can  obtain  any  redress  for 

invasion of privacy. The latest ruling under this question is that of the English Court of Appeal, 

in the decision publishes on 7 May 2008 (David Murray v. Big Pictures (UK) limited). In this 

87 Bríd Jordan, on behalf of Reynolds Porter Chamberlain LLP, and the University of the Basque 

Country. 

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decision,  the  court  of  appeal  established  the  following  test  to  determine  whether  ECHR  art.  8 

has been violated or not:  

1.  Firstly  it  is  necessary  to  ask  if  a  reasonable  expectation  of  privacy  exists  for  the 

information or image subject to complaint.  

-  This  is  an  objective  and  broad  test;  all  the  factual  circumstances  of  the  case  must  be 

considered. 

- The court establishes that the characteristics of the party seeking protection must be taken 

into account (e.g. relevant notoriety, if the information refers to an adult or a minor), the nature 

of the activity the person was engaged in at the time and place the event happened, the nature 

and purpose of the intended use of the information by the party intending to use it, the presence 

or absence of consent by the party seeking protection, the effect on the party seeking protection 

and  the  circumstances  in  which    the  party  wishing  to  use  the  information  came  to  be  in 

possession of it. 

- This is not an exhaustive list of factors to be taken into consideration, rather it should be 

considered a roadmap designed to help the parties when considering if there has been a violation 

of ECHR art. 8 or not. 

2. If a reasonable expectation of privacy is established, the next step shall be to determine 

how to balance individuals’ right to privacy under ECHR art. 8 and the editor’s right to freedom 

of  expression  under  ECHR  art.  10.  In  this  instance,  the  matter  shall  be  determined  with  due 

attention  paid  to  the  facts  of  the  specific  case.  The  weight  to  be  given  to  the  various 

considerations is a question of fact and degree.  

The  test  is  regularly  refined  and  developed,  its  application  depending  on  the  facts  of  the 

particular  case  presented  to  the  courts.  It  is  thus  impossible  to  create  a  definitive  list  of  the 

questions to be considered, or to predict with any certainty how the law will develop in future. 

The  incorporation  of  ECHR  art.  8  and  the  obligations  contained  in  the  HRA  will  continue  to 

force common law to recognise and protect the right to privacy but, in the absence of statutory 

intervention, the extent of said protection will depend on the specific facts of each case. 

With regard to jurisprudence the following cases should be emphasised: 

1.  Campbell  v.  MGN  Limited  (2004):  the  model  Ms.  Campbell  complained  that  the 

publication of an image alleging to show her leaving a meeting of “Narcotics Anonymous” and 

the  article  on  her  drug  use  comprised  an  infringement  of  ECHR  art.  8.  The  House  of  Lords 

recognised  that  Ms.  Campbell’s  complaint  did  not  fit  easily  with  the  traditional  analysis  of 
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privacy and rights relating to personality. 
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complaints  over  invasion  of  privacy.  In  turn,  it  recognised  that  the  values  of  ECHR  articles  8 

and 10 form part of the reformulated action on infringement of confidentiality.  It declared that 

the touchstone of private life is that with respect to facts revealed, the person in question has a 

“reasonable expectation of privacy”. The House of Lords viewed the publication of the images 

of Ms. Campbell as a violation of ECHR art. 8 but only awarded minimal damages. 

2.  HRH  Prince  of  Wales  v.  Associated  Newspaper  Limited  (2007):  Highlights  the 

importance of taking the facts of the case into consideration. This case dealt with the publication 

in  a  national  newspaper  of  diary  extracts  from  a  trip  made  by  the  Prince  of  Wales  that  were 

distributed in a limited manner amongst friends, on the basis of confidentiality. The newspaper 

obtained the information after it was leaked by a former employee. This employer was subject 

to  an  express  contractual  obligation  as  well  an  implicitly  confidential  relationship.  The  Court 

considered that this circumstance affected both the “reasonable expectation of privacy” and the 

“balance  test”.  The  existence  of  a  contractual  relationship  can  make  even  inoffensive 

information private. It may also weigh heavily in favour of art. 8 in the balance test. The court 

did not consider that art. 10 or the public interest in the diary outweighed the Prince’s rights in 

accordance with art. 8. 

3. McKennitt v. Ash (2007): refers to the action lodged by Ms McKennitt (a Canadian folk 

singer) motivated by the publication of private information both true and false by Ms Ash in a 

book she wrote about the time she spent with Ms McKennitt. In the case, the Court of Appeal 

identified  two  key  questions  developed  in  David  Murray  v.  Big  Pictures  (UK)  limited  which 

should be answered when a complaint refers to the illicit publication of private information. The 

court considered that Ms McKennitt’s rights were not limited to truthful private facts but also 

covered false information.  

2. Rules of Conflict 

In English law no conflict rules exist on a legal basis with reference to the applicable law in 

cases of defamation. In fact, the Private International Law (miscellaneous Provisions) Act 1995, 

Part. III, on Choice of Law in Tort and Delict, in section 13, excludes claims for defamation. 

This precaution declares that: 

“1.  Nothing  in  this  Part  applies  to  affect  the  determination  of  issues  arising  in  any 
defamation claim. 
2. For the purposes of this section “defamation” claims means – 
a. Any claim under the law of any part of the United Kingdom for libel or slander or for 
slander of title, slander of goods or other malicious falsehood and any claim under the law 
of Scotland for verbal injury; and 

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b. Any claim under the law of any country corresponding to or otherwise in the nature of a 
claim mentioned in paragraph (a) above.” 

However,  the  question  which  arises  is  whether  all  instances  of  infringements  against  the 

rights of the person are placed within the exclusion of section 13. If instances of defamation or 

slander,  verbal  injuries  or  instances  of  a  similar  nature  are  also  counted  in  the  infringements 

caused by the media, it is not clear if these cover all possible instances. 

The exclusion has lead jurisprudence to give concrete responses.  

English jurisprudence has traditionally used the cumulative application criterion of lex loci 

delicti and the lex fori (double actionability rule) in instances of extracontractual responsibility. 

In time this criterion has been replaced by that of lex loci delicti; clearly since the adoption of 

Part  III  of  the  Private  International  Law  (miscellaneous  Provisions)  Act  1995  (although 

defamation cases remain explicitly excluded). 

Today, this cumulative criterion (lex loci delicti and the lex fori) or the common law rule of 

double actionability is used during disputes over responsibility in the area of defamation cases, 
being excluded by section 1388. Accordingly, the cumulative application of the law on place of 

circulation and the lex fori is called for.  

The common law double actionability rule itself is highlighted in section 10 of the Private 

International  Law  (miscellaneous  Provisions)  Act  1995  which  anticipates  its  abolition:  “a) 

require  actionability  under  both  the  law  of  the  forum  and  the  law  of  another  country  for  the 

purpose of determining whether a tort or delict is actionable; or b) allow (as an exception from 

the  rules  falling  paragraph  (a)  above)  for  the  law  of  a  single  country  to  be  applied  for  the 

purpose of determining the issues, or any of the issues, arising in the case in question”. 

The  double  actionability  rule  is  applied  to  those  claims  made  before  English  courts  for 

harmful actions carried out abroad by the defendant. Where the defendant’s actions giving rise 

to the harm have taken place in the United Kingdom no problems of applicable law arise under 

United Kingdom law, including in those circumstances with substantial foreign connections. For 

the  double  actionability  rule  to  be  satisfied  the  plaintiff  must  prove  that  the  defendant  would 

have been responsible under internal Law had the event taken place in England and that by his 

or her conduct he or she has incurred civil responsibility under the law of the place where the 

illicit  act  was  committed.  However,  this  rule  may  be  subject  to  flexible  interpretation  those 

cases  where  its  application  could  lead  to  an  injustice,  applying  in  such  a  case  the  Law  which 

88  C.G.J.  Morse,  “Torts  in  Private  International  Law:  A  New  Statutory  Framework”,  ICLQ, 

vol. 45, no. 4, 1996, pp. 889.  

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JLS/2007/C4/028. Annex III 

displays the most significant connection to the event, thus establishing the responsibility of the 
defendant89. 

The  main  motive  for  exclusion  of  matters  concerning  personal  rights  of  the  Private 

International  Law  (miscellaneous  Provisions)  Act  1995  seems  to  have  been  the  fear  that 

freedom of expression (particular of the press) would be seen to be harmed by application of the 
new  conflict  rules90.  This  cumulative  application  of  the  two  rules  favours  the  editor  of  the 

publication. Under it, it is hoped that freedom of expression is saved as provided for by English 

laws in the face of potential application of foreign Laws which are more restrictive with regards 

to said freedom. 

3. Case Law on Rules of Conflict  

We have seen that disputes over alleged defamation are governed by common law; that is, 

by  the  double  actionability  rule.  This  rule  was  established  in  the  matter  of  Phillips  v.  Eyre 

(1870)  L.R.  6  Q.B.  1  (Exch.).  However,  this  rule  has  been  modified  by  the  ruling  of  Lords 

Wilberforce and Hodson in the case of Boys v. Chaplin (1971) AC 356 and by the Privy Council 
in  the  matter  of  Red  Sea  Insurance  v.  Bouygues  SA  (1994)  3  All  ER  749  (CA)91.  The  rule 

presented in section 10 of Part III of the Private International Law (miscellaneous Provisions) 

Act 1995, should be understood, therefore, in light of the interpretation of the aforesaid judicial 

decisions.  

4. Special Courts 

Special  courts  do  not  exist  as  such,  but  defamation  cases  are  normally  submitted  to 

specialist  judges  on  the  Queen’s  Bench  Division  of  the  High  Court  of  England  and  Wales. 

Privacy cases are normally submitted to the same Division, but not exclusively. Privacy cases, 

particularly  urgent  matters  such  as  petitions  to  halt  a  specific  publication,  are  frequently 

resolved by non-specialist judges. 

89 P. Rogerson, “Choice of Law in Tort: A Missed Opportunity?”, ICLQ, vol. 44, no. 3, 1995, 

p. 650. 

90 C.G.J. Morse, “Torts in Private International Law...”, loc. cit., p. 891. 
91 Vid. with respect to jurisprudential evolution P. Rogerson, “Choice of Law in Tort...”, loc. 
cit., pp. 650-658; A. Mayss, “Statutory Reform of Choice of Law in Tort and Delict: A Bitter Pill or 
Issues,  1996,  available  at 
a  Cure 
http://www/ncl.ac.uk/~nlawwww/1996/issue2/mayss2.html;  a  more  complete 
the 
jurisprudential evolution where the double actionability rule has its origins is to be found in P.M. 
North, “Reform, But Non Revolution”, R. des C., t. 220, 1990-I, pp. 206 on. 

Ill?”,  Web  Journal  of  Current  Legal 

look  at 

the 

for 

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JLS/2007/C4/028. Annex III 

5. Directive 95/46/EC 

The Data Protection Act 1998 uses the same criteria of application as the Directive itself. To 

this end art. 5 (application of Act) stipulates: 

“(1) Except as otherwise provided by or under section 54, this Act applies to a data 
controller in respect of any data only if—  
(a)  the  data  controller  is  established  in  the  United  Kingdom  and  the  data  are 
processed in the context of that establishment, or  
(b) the data controller is established neither in the United Kingdom nor in any other 
EEA  State  but  uses  equipment  in  the  United  Kingdom  for  processing  the  data 
otherwise than for the purposes of transit through the United Kingdom.  
(2) A data controller falling within subsection (1)(b) must nominate for the purposes 
of this Act a representative established in the United Kingdom.  
(3) (…)”. 

Thus, the criteria of application found in the Directive are reproduced in English Law. 

6. Bibliography 

Mayss, A.: “Statutory Reform of Choice of Law in Tort and Delict: A Bitter Pill or a Cure for 
at 
of  Current  Legal 

the 
http://www/ncl.ac.uk/~nlawwww/1996/issue2/mayss2.html.  

Ill?”,  Web 

available 

Journal 

Issues, 

1996, 

Morse, C.G.J.: “Torts in Private International Law: A New Statutory Framework”, ICLQ, vol. 

45, no. 4, 1996, pp. 888-902. 

Mortensen,  R.:  “Homing  Devices  in  Choice  of  Tort  Law:  Australian,  British,  and  Canadian 

Approaches”, ICLQ, vol. 55, no. 4, 2006, pp. 839-878. 

North, P.M.: “Reform, But Non Revolution”, R. des C., t. 220, 1990-I, pp. 206-256. 
Rogerson, P.: “Choice of Law in Tort: A Missed Opportunity?”, ICLQ, vol. 44, no. 3, 1995, pp. 

650-658. 

150 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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ISBN 978-92-68-14337-7 

doi:10.2838/187764