Insights Advocate General opines that a defamation claim in relation to online content may be brought in the Member State in which that content is accessible if it is established that an appreciable number of customers in that territory accessed and understood the content concerned


Gtflix Tv is based in the Czech Republic and produces and distributes adult content TV programmes. DR is a director, producer and distributor of pornographic films, domiciled in Hungary.

Gtflix issued proceedings in the French courts against DR for compensation in relation to allegedly disparaging remarks made by DR against Gtflix on various websites and forums. Gtflix sought an order that DR remove the allegedly disparaging content and not make any further such comments. As for financial compensation, it sought “one symbolic euro” for economic loss and one euro for non-material loss.

DR contested the jurisdiction of the French courts. DR was initially successful and Gtflix appealed. The French Court of Appeal has asked the CJEU whether Article 7(2) of the Recast Brussels Regulation (1215/2012/EU), which provides that in non-contractual matters a defendant may be sued in “the place where the harmful event occurred or may occur”, means that the claim for compensation can be issued in each Member State where the online content is/was accessible or that it must be issued in the court that has jurisdiction to order rectification and removal of the derogatory comments.

Advocate General Hogan noted that in Case C-68/93 Shevill, which concerned damage to reputation by a newspaper article distributed in several Member States, the CJEU held that the victim could issue proceedings for damages against the publisher either before the courts of the Member State of the place where the publisher was established, which have jurisdiction to award damages for all the harm caused by the defamation, or before the courts of each Member State in which the publication was distributed and where the victim claimed to have suffered injury to his or her reputation, which have jurisdiction to rule solely in respect of the harm caused in that Member State. This became known as the “mosaic approach” to jurisdiction.

As for defamatory content online, in Joined Cases C-509/09 and C-161/10 eDate Advertising the CJEU ruled that where the website hosting the content has not taken any restrictive measures, the court of the place where the alleged victim has the centre of his or her interests should have jurisdiction to determine the merits of a claim for compensation for the entirety of the damage suffered on the grounds that this is the place where the impact of online content on a person’s personality rights can best be assessed. The CJEU also said that it was possible for the complainant to issue proceedings in the courts of each Member State in the territory of which the online content was or had been accessible, but that those courts only have jurisdiction in relation to the damage caused in that Member State. The CJEU therefore retained the mosaic approach in relation to online content.

However, in Case C-194/16 Bolagsupplysningen and Ilsjan, the court was asked to determine whether the analysis in eDate was applicable to a claimant wishing to obtain not only compensation for harm suffered as a result of the dissemination of allegedly defamatory content online, but also rectification of the allegedly incorrect content and the deletion of related comments on a discussion forum on that website. The CJEU ruled that in relation to the requests for rectification and deletion, the rule of jurisdiction to determine the merits of the damage suffered in its entirety, which eDate said was the courts of the Member State in which the victim’s centre of interests was situated, applies regardless of whether the content in question gives rise to a material or non-material damage. In other words, because of the “ubiquitous nature” of online content, an application for rectification and removal of content is “an indivisible application” and therefore any such claims can only be brought in the territory where the claimant has its centre of interests and not before the courts of each Member State.

In this case, the French court is asking whether, in view of the reasons given by the CJEU to justify the exclusive jurisdiction of certain courts in relation to the deletion or rectification of disputed content, it would be appropriate also to recognise the exclusive jurisdiction of those same courts in relation to compensation. In other words, the question is whether, in Bolagsupplysningen and Ilsjan, rather than simply distinguishing earlier case-law, the CJEU intended to reverse its previous case law and abandon the mosaic approach.

The AG noted that while the CJEU does not adhere to a strict doctrine of precedent, any significant departure from an established body of case law is exceptional and should only happen if there is a serious reason to do so and it should be limited to what is necessary.

The question is therefore whether the problematic features of the mosaic approach are so fundamental as to justify its abandonment and, if that is so, whether there is any other approach the CJEU could take instead.

In the AG’s opinion, the post-Shevil case law should not be reversed in this way for various reasons, including the fact that the mosaic approach is not contrary to the objectives of the Regulation, such as legal certainty, minimising concurrent proceedings, and ensuring that jurisdiction is conferred on the court in the best position to assess the claim and resulting damage. Further, in the AG’s view, the fact that defamation legislation is not harmonised across Member States justifies the maintenance of the mosaic principle.

In any event, before abandoning the mosaic approach, it would be necessary to ensure that there are no other solutions. The AG opined that it might be less radical simply to combine the mosaic approach with “a focalisation criterion” and suggested that, perhaps, in order to confer jurisdiction on a particular Member State, the content in question should not simply be accessible by means of the internet but should also have been specifically directed towards the territory of the Member State concerned. In the AG’s view, this would make it possible, in accordance with the objectives pursued by Article 7(2), to reduce the number of competent courts and to ensure legal certainty, while at the same time ensuring that there is a close link between the courts and the dispute, thereby guaranteeing the proper administration of justice.

Accordingly, the AG said that in his opinion, in this case, the French courts would have jurisdiction in relation to a claim for compensation for damage caused in France if it were established that Gtflix TV had an appreciable number of customers in France who were likely to have access to and understand the publication in question, which would be a matter for the national court. (Gtflix TV v DR EU:C:2021:745 (16 September 2021) (Opinion of Advocate General)) — to read the Opinion in full, click here).