Rethinking Shevill. Conceptualising the EU private international law of Internet torts against personality rights

摘要

Neither EU nor Member States' legislators or courts have to date found satisfying answers to the legal challenges of transnational violations of personality rights, such as reputation or privacy, in cyberspace. These challenges involve in particular the interpretation of EU private international law rules governing jurisdiction. Due to the Internet's ubiquitous character, applying the ECJ's Shevill doctrine from 1995 to transnational violations of personality rights in cyberspace would lead to limitless jurisdiction, thereby causing the risk of severe chilling effects on online publications. If behaving in a prudent and precautionary manner, website operators would have to adjust to the standards of the most restrictive jurisdiction. In its decision eDale Advertising and Martinez v MGN (Cases C-509/09 and C-161 /10), the CJEU amended the Shevill doctrine by establishing a 'centre of interests' criterion. The article will argue that although the introduction of the 'centre of interests' test is to be appreciated, it is insufficient to merely amend Shevill; rather, the 'centre of interests' criterion should replace the existing Shevill 'mosaic principle'.