Personality rights arising from TV broadcasts – CJEU clarifies limits of cross-border jurisdiction

Background

In this factually sensitive case, the actual names of the various key persons were redacted, and each of them is referred to by concise abbreviations in the ruling.

In November 2013, Z.R., a Polish national who had been a member of "unit X", a clandestine Polish military organisation during the Second World War, and Ś., a Polish association whose purpose is to defend the dignity, reputation and memory of unit X and its members, brought a claim for breach of personality rights before the Regional Court in Krakow ^[3] against two individuals, U. and Z., who were domiciled in Germany.

Z.R. and Ś. alleged that a television series co-produced by U. and Z. portrayed the members of unit X as antisemitic, nationalist and Nazi collaborators in the Holocaust. The series was first broadcast on television in Germany in 2013 and later in other EU member states, including Poland, as well as online.

Alleging that the representation of unit X breached their right to dignity, national identity and the portrayal of an accurate historical account, Z.R. and Ś. sought an apology to be issued on the television channels that had broadcast the series in the relevant member states and published online. Z.R. also sought an award of 25,000 zlotys (approximately £5,000) in compensation for non-material damage.

U. and Z. challenged the jurisdiction of the Polish courts on the basis that the claim should be heard exclusively by the German courts. Yet that plea was rejected by both the Regional Court and the Court of Appeal in Krakow, ^[4] and the action continued before the Polish courts.

In 2018, the Regional Court partially upheld the claim. It ordered an apology to be issued on the relevant television channels and online. The court also awarded Z.R. 20,000 zlotys (approximately £4,000) in compensation for non-material damage. The Court of Appeal subsequently dismissed Z.R.’s claim in its entirety, holding that he was not identifiable from the series and so had suffered no actionable harm as a result.

Appeal and reference

All parties appealed to the Polish Supreme Court ^[5] on a point of law. U. and Z. argued that the Polish Court of Appeal had determined the merits of the dispute without jurisdiction to do so. The Polish Supreme Court stayed proceedings and referred two questions to the CJEU concerning the interpretation of the phrase, "place where the harmful event occurred" under Article 5(3) of the Brussels I Regulation:

1. Do the courts of the member state in which a claimant’s centre of interests is located have international jurisdiction to hear a claim seeking compensation for the entirety of the alleged damage as a result of a breach of personality rights, and, in the case of an internet publication, does such jurisdiction exist where a claimant is not identifiable from the content in question?
2. Where a court has jurisdiction only over the damage suffered within its own member state, what remedies can that court grant?

Decision

1. Could the Polish courts hear a claim for all damage suffered?

The CJEU considered the first question in two stages:

• whether the "centre of interests" principle applies to personality-rights infringement claims arising from television broadcasts; and
• whether that jurisdiction basis is available where a claimant cannot be identified from the content allegedly causing such harm.

On the first issue, the CJEU recalled the general rule under Article 2(1) of the Brussels I Regulation that proceedings should ordinarily be brought in the courts of the member state in which the defendant is domiciled. Yet Article 5(3) derogates from the general rule and permits proceedings to be brought in the courts of the member state in which the harmful event occurred or may occur.

In the case of an international breach of the personality rights of a natural or legal person relating to the broadcast of audiovisual content on television, the court held that the breach occurs in the places where that content is broadcast, and where the victim claims to have suffered injury to their reputation. Accordingly, in those circumstances, a person must be able to bring an action for damages against the producer where the content was broadcast, and where the victim claims to have suffered injury to their reputation. In those circumstances, each court would only have jurisdiction to hear an action in relation to damage caused in its own member state.

The CJEU differentiated between works disseminated online and works broadcast on television. Where content is placed on a website, it may be accessed instantly by a number of users throughout the world. Where content is broadcast on television, it is not available instantly and worldwide, but is instead regionalised, or limited only to the geographical area in which the television signal is received.

Accordingly, the CJEU held that, if Z.R. and Ś. wished to recover compensation for the entirety of the damage suffered arising from the television broadcast of the series, they would need to bring proceedings before the courts in Germany where U. and Z. were domiciled. Alternatively, the CJEU held that they could pursue claims in each member state for compensation of the damage suffered in that place alone.

On the second issue, the CJEU considered whether the courts of the member state in which the claimant’s centre of interests is located have jurisdiction to hear an action seeking compensation for a breach of personality rights where the applicant cannot be identified in the content in question. Relying on its earlier decision in Mittelbayerischer Verlag, ^[6] the CJEU reiterated that the content must contain objective and verifiable elements that make it possible to identify (directly or indirectly) that person as an individual. To establish indirect identification, it must be possible to identify the person with certainty through attributes portrayed in the content, which are specific to that person and are distinguishing factors from others.

Applying that principle, the CJEU held that the link between Z.R. and the depiction of the members of unit X in the series was not sufficient to enable him to be identified as an individual, whether indirectly or otherwise. So, Z.R. was unable to rely on the "centre of interests" jurisdiction in relation to the online publication of the series. The position for Ś. was different: the CJEU held that the series contained objective and verifiable elements that made it possible to identify Ś. directly. The association is a limited group whose purpose is to defend its members, who constitute a closed category of person, and that is depicted through the portrayal of unit X in the series.

Accordingly, on the first issue, the CJEU held that the courts of Poland did not have jurisdiction to hear the action brought by Z.R. and Ś. seeking compensation for the entirety of the damage allegedly suffered for a breach of personality rights in relation to the television broadcast of the series. On the second issue, Z.R.’s claim was unsuccessful, as he was not identifiable in the series. Yet Ś. could bring a claim for breach of personality rights before the Polish courts for all of the damage allegedly suffered following online publication of the series.

2. If the Polish court only has local jurisdiction, what remedies can it grant?

Z.R. and Ś. sought two forms of non-pecuniary relief: (a) an order requiring a specific notice to be displayed before each broadcast of the series on television and online; and (b) an injunction requiring a statement to be published on Polish and German television channels and on the internet. Z.R. also sought compensation for non-material damage.

The CJEU made a distinction between remedies that are divisible and those that are single and indivisible. Referring to its earlier decisions in Bolagsupplysningen ^[7] and Gtflix Tv, ^[8] the court held that an order requiring the rectification of online information constitutes a "single and indivisible" remedy due to the ubiquitous nature of internet publications. Any such order would require that information to be changed across the globe, and so a request to rectify information online could only be heard by a court with jurisdiction over the entire dispute.

By contrast, the CJEU held that the Polish courts could hear claims for divisible remedies, as long as those remedies related solely to the damage suffered within their territory. As to harm allegedly suffered for breach of personality rights as a result of the broadcast of the series on television, the Polish courts could award Z.R. and Ś. compensation for harm suffered within Poland only and could grant injunctive measures aimed at preventing further harm occurring in Poland. As to the non-material damage allegedly suffered by Z.R. as a result of online publication, the Polish courts could likewise award damages for the harm suffered in Poland.

The Polish courts could not award compensation for damage suffered outside Poland, nor could they order the rectification of information in the online version of the series.

Comment

The significance of the decision in Idziski lies in the CJEU’s clear distinction between content broadcast on TV and content published online. The court was unequivocal in holding that, while TV programmes may now be accessed through various online media, that fact alone is not enough to establish jurisdiction in the courts of the EU member state in which a claimant’s centre of interests is located.

So, claimants seeking to bring action for breach of personality rights arising from EU television broadcasts may be subject to jurisdictional limitations, both as to the forum in which a claim can be brought and the remedies that can be obtained.

Article written for Entertainment Law Review.