Chilling effect risk of Kylie judgment

Will yesterday's ECJ ruling concerning an article about Kylie Minogue on a British website make it easier to sue online publications?

A ruling in the European Court of Justice (ECJ) yesterday would appear to shift the axis for law suits against websites and online publications to protect the image of celebrities and others who want to control the way they are seen in public. The ruling, in respect of a case brought by the French actor Olivier Martinez against the Sunday Mirror, says that people may sue for what are called 'personality rights' in the country where they live. 'Personality rights' is about controlling your own publicity or image. Previously, you could only sue in the country where the publisher is based, or in countries where the information is distributed.

The ECJ ruling was in respect of two separate cases in Germany and in France. The French case was bought before the high court in Paris by the actor Olivier Martinez and his father Robert Martinez. The defendant was Mirror Group Newspapers.

At issue was a story published on the website of the British newspaper, the Sunday Mirror. The story was about Olivier Martinez and the Australian singer /actress Kylie Minogue, and entitled Kylie Minogue is back with Olivier Martinez. Martinez is the former boyfriend of Kylie Minogue.

The German case concerned an action in the German courts against an Austrian website.

What both cases had in common was that the case was brought in the EU Member States where plaintiff resided, which was a different Member State from the one where the website and its publishers were based. In other words, Martinez did not sue in London, where the Sunday Mirror is based, but in Paris, where, he lives but where the Sunday Mirror has no publishing interests.

The French court had asked the ECJ for an opinion as to whether it was legitimate to hear the Martinez case in France.

The ECJ ruled that the best place to assess the impact of online content against an individual's personality rights is the place where the plaintiff has his or her main residence. The ECJ's rationale was that web publication was 'liable to increase the seriousness of the infringements' of personality rights, due to the 'universal distribution' of the information.

The ruling would appear to mean that people can sue to protect their image - in other words, to suppress information about themselves which they do not like - in any country against websites in other EU countries.

The case raises more serious issues in respect of Internet censorship. Most people probably do not care which men Kyle Minogue is seeing, and thus any such information is totally trivial gossip. On the other hand, people like Kylie make their millions on the back of such gossip, which keeps their profile in the public eye.

It is concerning that, by lowering the legal barriers for image-based law suits, courts are acting to protect this trivia with orders which risk providing prededents for the suppression of web content.

Judgment in Joined Cases C-509/09 and C-161/10 eDate Advertising GmbH v X and Olivier Martinez and Robert Martinez v MGN Limited, Court of Justice of the European Union, 25 October 2011

Please use the following citation: Monica Horten (2011) Chilling effect risk of Kylie judgement www.iptegrity.com 26 October 2011