Proposals ease publishers’ fears of cross-border defamation suits

By Peter Chapman

Date: 18/03/04

EU PUBLISHERS of newspapers and magazines or websites could win extra protection against cross-border defamation and privacy law suits under European Parliament proposals unveiled this week.

The defamation blueprint is part of amendments tabled by UK Liberal MEP Diana Wallis to a complex new regulation known as 'Rome II' which tells judges which law is applicable in cross-border cases. Newspapers and magazines complained that the European Commission's proposals were too vague to protect them from the risk of massive lawsuits in far-flung courtrooms across the Union - even if they fully respect the relevant laws of the country in which they are published.

António Vitorino, the justice and home affairs commissioner's proposals aim to give publishers some protection by imposing a reference to "fundamental principles . . . as regards freedom of expression and information".

This could mean publishers are not subject to foreign laws if such legislation goes against the right to freedom of expression in their own country - although the default would be laws in the country where damage to the plaintiff arises.

"But this is a complete dog's dinner," Angela Mills Wade, director of the European Publishers' Council told European Voice. "Can you imagine a judge in Lille having to assess if it [applying French law] conflicts with fundamental principles of freedom of speech in the UK? It would provide no legal certainty at all. So there has to be an amendment."

Under Wallis' proposals, the rules would take into account factors such as sales figures, audience figures and language, in deciding if a publication could face action for breaching foreign rules on defamation or privacy.

Wallis, a member of the assembly's legal affairs committee, said the new rule, in line with a 1995 European Court of Justice decision, would "make for more legal certainty for publishers and broadcasters and result in a straightforward rule applying to all publications, even those carried out on the internet".

EU citizens already have the right to sue in a domestic court, close to their home. But experts say the amendment would prevent a magazine, newspaper or website being sued by a citizen of a country where hardly anyone would have read an allegedly defamatory article - for alleged breaches of local laws.

At the same time, they claim it would move closer towards the single market principle that stipulates companies are free to offer their services anywhere in the EU's member states provided they meet the laws in their own country.

Mills Wade said: "We are pleased to see she [Wallis] is addressing this. But our first choice would be to take this [defamation and privacy] out completely. We do not see any justification on single market grounds." She explained this is because the vast majority of publications are focused almost entirely on their home market. Consequently, she added, the number of cross-border cases is rare, and invariably involve "the rich and famous".

Dietmar Wolff, director of the European Newspaper Publishers Association, added: "It is a big step in a more balanced, single market direction."

He said the law would stop newspapers such as Le Monde from worrying about UK law, when they produce their paper primarily for French citizens, but sell it in small numbers in Britain - an issue which arose when the paper ran a story about the sexuality of The Prince of Wales, which was blocked in the UK after a protest from Queen Elizabeth II.