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Discuss the issue of multiple locations of torts in cases of press torts and the theories to solve this problem

Seminar Paper 2004 15 Pages

Law - European and International Law, Intellectual Properties

Excerpt

Content

I. Introduction

II. Main Part
1. What are press torts
2. Jurisdiction of Courts
3. Applicable Law
4. How to deal with multiple locations of torts
a) “Extended Favour Principle
b) “Principle of Habitual Residence
c) “Mosaic Principle
d) Statement
5. Case Study
a) Applicability of the Brussels Regulations
b) Points of Attachment
c) Jurisdiction and Applicable Law

III. Conclusion

L I T E R A T U R E

1. WRITTEN LITERATURE:

Abbildung in dieser Leseprobe nicht enthalten

2. INTERNET PAGES:

http://wwww.aig.org/r2g/downloads/rome_ii_final_pro-posal_de_220703. pdf, p. 12

http://www.cr-international.com

http://www.lectlaw.com/def2/t032.htm

http://www.uni-potsdam.de/u/lsandrae/izvr02.pdf

I. Introduction

In the following essay, I will discuss the issue of multiple locations of torts in cases of press torts and the theories to solve this problem. I will do so in first explaining what torts, especially press torts are. Afterwards, I will continue with the problems which arise out of this special kind of tort and lead it to a solution. In the end, I will present a little case in order to apply the fore mentioned issues to it. This shall make the facts clearer.

II. Main Part

1. What are press torts?

A tort in general is a civil wrong not arising out of a contract or statute which came about when one of a person’s legal assets is injured by another person[1]. This injury gives the injured person the right to sue the wrongdoer for damages[2]. With regard to press torts the injury must be brought about with the help of a written and printed device such as a newspaper, a magazine or a book. These press releases are able to violate a person’s personal rights[3]. This happens, for example, if a picture is published without the consent of the depicted person or a violation of a person’s honour takes place.

First of all, it is questionable which conflict norms should be applied with regard to these torts. Both the Brussels Regulations[4] and the Introductory Act of the German Civil Code (IACC) come into consideration.

Art. 5 (3) Brussels Regulations reads:

“A person domiciled in a Member State may, in another Member State, be sued in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur.”

Art. 40 (1) IACC reads:

“Tort claims are subject to the law of the state in which the liable party has acted. The injured party can demand that instead of this law, the law of the state in which the injury occurred is to be applied.”

From the wording it is obvious that the Brussels Regulations are concerned with the jurisdiction of courts whereas the IACC takes a close look at the applicable law[5]. In the following, it is therefore necessary to separate these two laws.

2. Jurisdiction of courts

Under Art. 1 (1) Brussels Regulations, the Brussels Regulations shall apply to civil matters (subject matter jurisdiction). They shall further apply with regard to persons domiciled in a Member State (local jurisdiction) under Art. 2 (1) Brussels Regulations. Because a tort claim is a civil matter, the Brussels Regulations are applicable if only the tortfeasor is domiciled in a Member State as well.

Under Art. 5 (3) Brussels Regulations the courts of the “place where the harmful event” took place have jurisdiction. In the “Shevill-case” the European Court of Justice answered the question what this means such: The injured person can sue the wrongdoer either at the place where the liable party acted which means where the tortfeasor has carried out the entire or at least part of the liable act[6] or at the place where the injury occurred[7]. Whether the courts at the place of action or the place of injury have jurisdiction is up to the injured person who can choose where she wants to file her claim.

With regard to press torts this place of action generally is the place where the publishing company is situated[8] which normally is the place where the newspaper, magazine or book was published (place of publication)[9]. This is the place of the tort’s initiation, the place where the violation of the plaintiff’s personal rights was expressed and from which the press release was distributed[10]. In contrary to this, the place were the article was written or printed normally does not suffice to have such a place of action because these actions are only preparatory acts[11]. An exception to this exists where the press personal who was involved in these acts culpably collaborated on the tort[12].

Hence, the courts at the place of action have jurisdiction over the entire tort claim and are able to pass judgement on the tortfeasor with regard to the entire damage.

In contrast to the place of action the injury occurred in every single state the press release was read if only the injured person is known there[13]. Here the question arises whether the courts of every single place of injury have jurisdiction over the special case and, if yes, to which extent. This question shall be answered later. At first, a close look at the applicable law has to be taken.

3. Applicable Law

In relation to the IACC the rule of the scene of the tort (lex loci delicti commissi) is the point of attachment as well[14]. Therefore, the place of action and the place of injury are decisive[15]. Under Art. 40 (1) 1 IACC tort claims are generally subject to the law of the state in which the liable party has acted[16]. This law is applicable in relation to the entire damage. But under Art. 40 (1) 2 IACC the injured party can demand that instead, the law of the state in which the injury occurred is to be applied.

As long as the place of action and the place of injury do not fall apart (place torts)[17] you do not have to differentiate between these two places with regard to the applicable law in the special case[18]. But if the place of action is in one country and the place of injury in another (distance torts)[19] the problem arises which of the places is decisive.

This latter especially happens with press torts. Although press releases are published in only one state, they are generally distributed beyond this state. Hence, it is not unusual that e.g. a German Newspaper can be bought throughout the world wherefore the place of action and the place of injury can fall apart. But with regard to press torts the cross-border distribution of press releases does not culminate in distance torts. It could lead to various places of injury as well. Especially in cases where a celebrity’s personal right is violated, an injury in various countries can occur[20] (multiple locations of torts, multi state torts[21] ).

[...]


[1] Kegel/Schurig, p. 624; http://www.lectlaw.com/def2/t032.htm.

[2] http://www.lectlaw.com/def2/t032.htm.

[3] Von Hoffmann/Thorn, No. 228.

[4] Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforce-ment of judgements in civil and commercial matters of 22 December 2000, Official Journal L 012, 16/01/2001, p. 1-23.

[5] European Court of Justice (ECJ) IPRax 1997, p. 111 (114).

[6] Spindler, ZUM 1996, p. 533 (556); Kegel/Schurig, p. 631; von Hoffmann/Thorn, No. 228; http://www.uni-potsdam.de/u/lsandrae/izvr02.pdf.

[7] ECJ IPRax 1997, p. 111 (113).

[8] ECJ IPRax 1997, p. 111 (113); Ehmann/Thorn, AfP 1996, p. 20 (23); Hay, case 148, p. 240 (241); Kropholler, p. 514; Staudinger-von Hoffmann, Art. 40 EGBGB, No. 58; von Hoffmann/Thorn, No. 228; http://www.uni-potsdam.de/u/lsandrae/izvr02.pdf.

[9] BGH NJW 1977, p. 1590; BGHZ 131, p. 332 (335); Erman-Hohloch, Art. 40 EGBGB, No. 53; von Staudinger-von Hoffmann/Fuchs, Art. 38 EGBGB, No. 15; Staudinger-von Hoffmann, Art. 40 EGBGB, No. 58; Palandt-Heldrich, Art. 40 EGBGB (IPR), No. 3.

[10] ECJ IPRax 1997, p. 111 (113).

[11] Staudinger-Hoffmann, Art. 40, No. 18.

[12] Kegel/Schurig, p. 631.

[13] ECJ IPRax 1997, p. 111 (113); BGH NJW 1977, p. 1590; BGHZ 131, p. 332 (335); Ehmann/Thorn, AfP 1996, p. 20 (23); Mankowski, RabelslZ 63 (1999), p. 203 (274); Fuchs, JuS 2000, p. 879 (880); Hay, case 148, p. 240 (241); von Staudinger-von Hoffmann, Art. 40, No. 59; von Hoffmann/Thorn, No. 228; http://www.uni-potsdam.de/u/lsandrae/izvr02.pdf; Palandt-Heldrich, Art. 40 EGBGB (IPR), No. 4.

[14] BGHZ 131, p. 332 (335); Spindler, ZUM 1996, p. 533 (556); MüKo-Kreuzer, Art. 38, No. 216; Kegel/Schurig, p. 624; von Hoffmann/Thorn, No. 228; http://www.uni-potsdam.de/u/lsandrae/izvr02.pdf; Palandt-Heldrich, Art. 40 EGBGB (IPR), No. 3.

[15] RGZ 138, 243 (246); BGH NJW 1977, p. 1590; BGHZ 131, p. 332 (335); Spindler, ZUM 1996, p. 533 (556); Junker, RIW 1998, p. 741 (748); MüKo-Kreuzer, Art. 38, No. 216; von Hoffmann/Thorn, No. 228; http://www.uni-potsdam.de/u/lsandrae/izvr02.pdf.

[16] Palandt-Heldrich, Art. 40 EGBGB (IPR), No. 3.

[17] Spindler, ZUM 1996, p. 533 (556); von Hoffmann/Thorn, No. 228.

[18] Von Hoffmann/Thorn, Rdnr. 228.

[19] Spindler, ZUM 1996, p. 533 (556); Kegel/Schurig, p. 624; von Hoffmann/Thorn, No. 228; http://www.uni-potsdam.de/u/lsandrae/izvr02.pdf.

[20] Ehmann/Thorn, AfP 1996, p. 20 (23); Spindler, ZUM 1996, p. 533 (556); Junker, RIW 1998, p. 741 (748); MüKo-Kreuzer, Art. 38, No. 216; Kegel/Schurig, p. 633; von Staudinger-von Hoffmann, Art. 40 EGBGB, No. 59.

[21] Kegel/Schurig, p. 633.

Details

Pages
15
Year
2004
ISBN (eBook)
9783638261456
File size
497 KB
Language
English
Catalog Number
v22918
Institution / College
University of Mannheim
Grade
17 Points
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Title: Discuss the issue of multiple locations of torts in cases of press torts and the theories to solve this problem