Libel Law, Eu Constabulary Too The Echr: A Comment On Arlewin V. Sweden

Athanassios Takis: PhD, Special Adviser to General Secretariat of Greek government

The judgment of the European Court of Human Rights of 1 March 2016 inwards the illustration of Arlewin v. Sweden concerns the (mis)application of European Union Regulation 44/2001 (which determines which Member State’s courts lead maintain jurisdiction over civil as well as commercial cases) on behalf of the Swedish courts as well as illuminates the limits of the ‘acte clair’ doctrine (the regulation that final national courts make non ever lead maintain to post questions most European Union police clitoris to the CJEU).

The Arlewin judgment

The facts of the Arlewin case, which gave the ECHR the risk to determine on an number concerning the application of European Union police clitoris lead maintain as follows: The applicant, Raja Arlewin, is a Swedish national, a self-employed businessman, who attempted to convey private prosecution proceedings as well as a claim for damages for gross defamation against X. X is a Swedish national, the Chief Executive Officer of a television set fellowship as well as anchor-man of a pop present inwards which Mr. Arlewin was accused of, amidst other things, involvement inwards organised criminal offense inwards the media as well as advertising sectors. The television set programme had been produced inwards Sweden, inwards the Swedish linguistic communication as well as was sponsored past times Swedish advertisers. The programme was sent from Sweden via satellite to a London-based fellowship (Viasat Broadcasting UK Ltd), which broadcast as well as transmitted it to viewers inwards Sweden.

In a preliminary ruling the Stockholm District Court declined jurisdiction over Mr. Arlewin’s claims because the programme had non originated from Sweden. The courtroom applied the relevant Swedish law, mainly the Constitutional police clitoris on liberty of expression, as well as followed the illustration police clitoris of the Swedish Supreme Court. The Court of Appeal upheld this decision, finding that Mr. Arlewin had non established that the decisions concerning the content of the programme had been taken inwards Sweden, a fact which was a prerequisite for the jurisdiction of Swedish courts. It contested that the defamation claim should live decided past times the courts of the U.K. where the topographic point of the fellowship transmitting the programme is.

Mr. Arlewin appealed, alleging that the Swedish courts’ topographic point ran counter to European Union police clitoris as well as specifically to the Brussels I Regulation (44/2001), as interpreted past times the Court of Justice of the European Union (CJEU). The Regulation establishes the regulation that inwards cases relating to liability for wrongful acts, jurisdiction is to live exercised past times the courts of the identify where the harmful lawsuit had occurred and, according to Mr. Arlewin, inwards his illustration the harmful effects of his defamation had occurred inwards Sweden. He also requested that a inquiry concerning the interpretation of the Brussels I Regulation live referred past times the national courtroom to the CJEU for a preliminary ruling. The Swedish Supreme Court rejected Mr. Arlewin’s referral request, finding no ground to asking a preliminary ruling from the CJEU, as well as rejected the case.

Since Mr. Arlewin was non satisfied amongst this, he brought an application against the Kingdom of Sweden earlier the ECtHR claiming that he had been deprived of effective access to courtroom as well as that the State had failed to render him amongst sufficient protection against allegations that violated his correct to privacy. In its judgment of 1 March 2016 the ECtHR notes that the core number inwards this illustration is whether the Swedish State violated the applicant’s rights through the courts’ decisions to dismiss the defamation accommodate on grounds of admissibility. The Court examined the relevance to Mr Arlewin’s illustration of 2 instruments adopted inside the framework of the European Union, namely the European Union Audiovisual Media Services Directive (2010/13) as well as the Brussels I Regulation.

The Court rejected the Government’s declaration that the Audiovisual Media Services Directive determined the province of jurisdiction when an private initiated a defamation claim. In exceptional the Directive. More exactly Article 28, which addresses the province of affairs where a person’s reputation as well as practiced cry lead maintain been damaged inwards a programme, sets out only the correct of reply; it does non bargain amongst defamation proceedings or a related claim for damages. The Court hence considered that the Audiovisual Media Services Directive did non regulate the affair of jurisdiction when it came to defamation proceedings arising out of the content of a transborder programme service.

Rather, jurisdiction nether European Union police clitoris was regulated solely past times the Brussels I Regulation. Under Articles 2 as well as five of that Regulation, it appears prima facie that both the U.K. as well as Sweden had jurisdiction over the discipline affair of Mr. Arlewin’s case. On the i hand, X is domiciled inwards Sweden, and, on the other, Viasat Broadcasting UK Ltd is registered, as well as thus domiciled, inwards the U.K. (Article 2 gives jurisdiction to the province of dwelling identify of the defendant). Furthermore, Article five gives jurisdiction to the identify where the harmful lawsuit occurred, as well as it could live argued that the harmful lawsuit had occurred inwards both countries, as the television set programme had been broadcast from the U.K. as well as the alleged injury to Mr. Arlewin’s reputation as well as privacy had manifested itself inwards Sweden. The programme had been produced inwards Sweden inwards the Swedish language, was backed past times Swedish advertisers, was to live shown alive to an exclusively Swedish audience, spell the alleged harm to Mr. Arlewin’s reputation had occurred inwards Sweden. With the exception of the technical exceptional of satellite reception transmission, the facts of the illustration were alone Swedish inwards nature.

Therefore, the Court noted that the content, production as well as broadcasting of the television set programme as good as its implications had real rigid connections to Sweden as well as real piffling to the United Kingdom. Under those circumstances the Swedish State had an obligation nether Article half-dozen of the Convention to render Mr. Arlewin amongst an effective correct of access to court. The Swedish courts’ interpretation of both the Swedish as well as the European Union police clitoris had led to a province of affairs where the alleged victim of the defamation could non concur anyone responsible nether Swedish police clitoris as well as could only bring out his way to a courtroom inwards the UK. Requiring Mr. Arlewin to lead maintain proceedings earlier the UK courts could non live said to lead maintain been an every bit feasible as well as reasonable alternative, as far as the practical as well as economical obstacles to initiate proceedings abroad would homecoming the remedy inefficient. The Swedish courts, past times dismissing Mr. Arlewin’s activity without exam of the merits as well as past times referring to the option of initiating proceedings inwards about other country, had impaired the real essence of his correct of access to courtroom as well as consequently breached Article half-dozen of the ECHR.

Comment

This is an ECHR judgment which straight examines the application of the European Union acquis past times the Member States’ courts as well as indirectly touches upon the number of these courts’ obligation to apply for a preliminary ruling past times the CJEU. As far as the rootage affair is concerned, the ECtHR clarifies the range ratione materiae of the EU's Audio-visual Media Services Directive as non regulating every number of gist as well as jurisdiction that may arise inwards relation to the broadcast of a television set programme. The Directive only regulates a person’s correct to respond to claims concerning him or her as well as non his or her correct to initiate civil or criminal proceedings earlier national courts for his or her defamation.

The Court farther addresses the number of the provisions of the Brussels I Regulation as well as their deport upon on the correct to a fair trial. In underlining the importance of the systematization of solutions ensured past times the Regulation as well as the measure of ‘strong connections’ of a dispute to a province as a jurisdictional footing (article five paragraph 3 of the Regulation), the judgment affirms that inwards full general the Regulation observes the correct to a fair trial as well as draws a fair remainder betwixt diverging interests. The special jurisdiction inwards matters relating to tort establishes the jurisdiction of the courts of the identify where the harmful lawsuit occurred or may occur (locus damni) as well as constitutes a comprehensive derogation from the psyche dominion laid inwards Article 2. 

The ratio of this provision rests on the indissoluble ties betwixt the element parts of liability amongst the prove as well as of the behaviour of the proceedings as well as the causal connexion betwixt the harm as well as the lawsuit from which that harm originates. That is why litigation earlier an alternate forum abroad would live also burdensome for the applicant as well as a violation of his correct to bask practical as well as effective access to a court. The Court of Strasbourg relies upon the findings of the Grand Duchy of Luxembourg Court as well as reaffirms the beingness of a direct dialogue betwixt the 2 jurisdictions, amongst the rootage affirming the findings of the instant inwards a noteworthy manifestation of its endeavour to lead -whenever possible- an interpretation of the ECHR that facilitates the proper application of European Union police clitoris past times national authorities.

As for the instant number at hand, namely the obligation to address a inquiry to the CJEU, the Court doesn’t explicitly address this issue. However, it seems rather apparent that had the Swedish courts applied for a preliminary ruling, the CJEU would lead maintain affirmed that the referring courts were competent to examine the defamation claims of Mr. Arlewin past times virtue of Article five paragraph 3 of the Brussels I Regulation. This is clearly the outcome of the CJEU judgments cited as well as of the paragraphs 36-39 of the ECtHR judgment final that ‘Brussels I Regulation requires European Union Member US to brand their courts available if jurisdiction is confirmed, [as] the ECJ noted inwards Kongress AgenturHagen GmbH v. Zeehaghe BV that the Regulation does non regulation matters of procedure. This way that a courtroom tin spend upwardly a illustration for reasons relating to domestic procedural rules as long as the national procedural police clitoris does non impair the effectiveness of the Brussels I Regulation’.

However, the Swedish courts applied the Brussels I Regulation inwards a mode inconsistent amongst European Union police clitoris as well as inwards considering the jurisdictional provisions to live an acte clair, rejected the asking of the applicant. According to Article 267 of the TFEU, when questions on the interpretation or validity of European Union police clitoris are raised inwards a illustration pending earlier a courtroom of a Member State against whose decisions at that topographic point is no judicial remedy nether national law, that courtroom is required to convey the affair earlier the Court of Justice of the European Union as well as apply for a preliminary ruling. The CJEU inwards the Cilfit as well as Others case has established 3 limited exceptions to this rule. Under the 3rd of these exceptions, a national courtroom against whose decisions at that topographic point is no judicial remedy doesn’t lead maintain to apply to CJEU for a preliminary ruling when it is convinced that no doubtfulness arises as the pregnant or the validity of the police clitoris to live applied is clear as well as unequivocal (acte clair) as well as therefore, forthwith comprehensible.

Influenza A virus subtype H5N1 courtroom or tribunal adjudicating at lastly illustration may lead maintain the thought that, although the lower courts lead maintain interpreted a provision of European Union police clitoris inwards a exceptional way, the interpretation that it proposes to give of that provision, which is dissimilar from the interpretation espoused past times the lower courts, is as well as so obvious that at that topographic point is no reasonable doubtfulness as to its meaning. The Court has also made clear that the beingness of such a possibility must live assessed inwards the low-cal of the specific characteristics of European Union law, the exceptional difficulties to which the interpretation of the latter gives ascent as well as the risk of divergences inwards judicial decisions inside the European Union (see judgments inwards Intermodal Transports, para 33, as well as inwards João Filipe Ferreira da Silva e Brito as well as Others, para 39, as well as discussion here). 

However, the Court inwards the latter judgment found that, inwards cases where a inquiry of European Union police clitoris has given ascent to a non bad bargain of uncertainty on the usage of many national courts, the courts of lastly illustration should deem themselves obliged to brand a reference to the Court of Justice. Influenza A virus subtype H5N1 persistent uncertainty strongly indicates non only that at that topographic point are difficulties of interpretation, but also that at that topographic point is a existent risk of divergences inwards judicial decisions inside the European Union. Should a failure on behalf of the national courtroom to notice this duty imposed past times Article 267 TFEU drive damages to individuals (see Köbler), the Member US should either laid aside the court’s determination or, where this is impossible due to the regulation of res judicata, compensate the private for infringement enacted past times the courtroom of lastly illustration of its European Union police clitoris obligation (João Filipe Ferreira, para 60).

The human relationship betwixt the refusal to asking a preliminary ruling as well as the violation of the correct to a fair trial has been the discipline of 2 other of import judgments delivered past times the ECtHR. At the same time, a 3rd application is withal pending (Repcevirág Szövetkezet v. Hungary, Application no. 70750/14 vii Application no. 17120/09). In the illustration of Dhahbi v. Italy the Court said that refusing a asking for a preliminary ruling, spell providing no reasoning at all for the refusal, constitutes a breach of Article half-dozen ECHR. In the to a greater extent than recent judgment of 21 July 2015 inwards the illustration of Schipani as well as others v. Italy (discussed here), the Italian Cour de cassation did non brand whatever reference whatsoever to whether the number at manus was an acte clair as well as therefore, justified an exemption from the dominion that renders the preliminary reference obligatory for the lastly illustration courts. According to the ECtHR ‘it is hence non clear from the reasoning of the impugned judgment whether that inquiry was considered non to live relevant or to relate to a provision which was clear or had already been interpreted past times the CJEU, or whether it was just ignored’. The Court of Strasbourg over again reached the conclusion that the applicants’ correct to a fair trial had been breached.

Examining the cases of Dhahbi, Schipani as well as Arlewin of the ECtHR as well as João Filipe Ferreira of the CJEU together, indicates that the Courts of Grand Duchy of Luxembourg as well as Strasbourg lead maintain restricted the criteria of the application of the doctrine of acte clair. The national courts lead maintain to accurately ground their decisions non to apply for a preliminary ruling based on their unequivocal agreement of the European Union law. The combination of the Arlewin as well as João Filipe Ferreira judgments shows that a breach of European Union police clitoris resulting from the misapplication past times the highest national courts of Article 267 TFEU may entail the responsibleness of the Member State to compensate the individuals at the same fourth dimension for both their fabric damages (a European Union police clitoris outcome inwards line amongst the Francovich as well as Köbler rulings) as well as their non-pecuniary damages (a ECtHR outcome inwards line amongst the Arlewin judgment).

Barnard & Peers: chapter 9, chapter 10

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