International jurisdiction over personality rights disputes: a European private international law perspective

Determining which national courts should have the authority to adjudicate cross-border civil law disputes arising from the infringement of personality rights - namely, the right to reputation and the right to privacy - has long been a sensitive and debated issue in legal literature and practice. The challenges in resolving conflicts of jurisdiction over personality rights disputes can be traced to two layers of complexity that specifically characterise torts against personality and set them apart from other categories of torts. First, since infringements of personality rights are typically committed in connection with the production and dissemination of media content, these disputes are ordinarily underlined by competing fundamental rights as a matter of constitutional and international human rights law - namely, the right to reputation or privacy on the side of the alleged victim and the right to freedom of expression on the side of the allegedly liable person. As such, selecting the national courts with jurisdiction to adjudicate personality rights disputes may, depending on the number of available courts and the proximity of each competent court to the elements of the dispute, result in disproportionate interference with either the alleged victim’s rights to reputation or privacy, or the allegedly liable person’s freedom of expression. In turn, due to the sensitive nature of the values at stake, the adoption of uniform and coherent jurisdictional solutions for cross-border personality disputes is hindered by the differing national conceptions at both the global and regional European levels regarding how personality rights should be balanced against the competing right to freedom of expression. Secondly, identifying the appropriate connecting factors between cross-border personality rights disputes and geographical territories, in order to allocate jurisdiction over such disputes, has continuously proven to be a complex and uncertain exercise. On the one hand, personality rights protect the intangible assets of the alleged victim’s personal sphere, namely his moral integrity, with the harm arising from the infringement primarily taking the form of non-pecuniary loss or ideal damage. On the other hand, in today’s information society, infringements of personality rights are typically committed via the Internet. Due to its attributes of ubiquity and virtuality, the Internet has amplified the potential for cross-border infringements of personality rights, while simultaneously challenging the application of traditional private international law rules based on geographical connecting factors. The present research focuses on the identification of the national courts with jurisdiction to adjudicate cross-border civil law disputes arising out of the infringement of personality rights, from a European private international law perspective. As such, the research focuses on the relevant instruments of European Union law that contain provisions aimed at resolving conflicts of adjudicative jurisdiction over personality rights disputes: the so-called ‘Brussels Ibis Regulation’ (Regulation (EU) No 1215/2012) and the General Data Protection Regulation, or ‘GDPR’ (Regulation (EU) 2016/679). At the same time, in order to position the approach currently adopted under European Union law within the broader international context, the analysis further encompasses, from a comparative perspective, the approach to adjudicative jurisdiction over cross-border personality rights disputes that emerged in the practice of courts in the United States of America.