Where do things happen online? This is one of the most important questions when dealing with Internet regulation in general. With a global communication networks, the question of where a person can sue and be sued is vital. The Court of Justice of the European Union has made a very important ruling with regards to jurisdiction for infringing content posted online in the case of Hejduk v EnergieAgentur (C‑441/13).  This is a preliminary decision to respond to a jurisdiction claim to dismiss the case.

The facts are as follow. Pez Hejduk is a professional photographer specialising in buildings and architecture. She took pictures of buildings by Austrian architect Georg W. Reinberg. Mr Reinberg presented these pictures at a conference in 2004 with the permission of Ms Hejduk. EnergieAgentur, the German Energy Agency published the pictures on its website without authorisation. Ms Hejduk sued EnergieAgentur in Vienna for copyright infringement, but the defendants claim that the Austrian court has no jurisdiction over the matter, as “the mere fact that a website may be accessed from Austria is insufficient to confer jurisdiction on that court.”

They key legal question is the interpretation given to Article 5(3) of Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters. The Austrian court referred the following question to the CJEU:

“Is Article 5(3) of [Regulation No 44/2001] to be interpreted as meaning that, in a dispute concerning an infringement of rights related to copyright which is alleged to have been committed by keeping a photograph accessible on a website, the website being operated under the top-level domain of a Member State other than that in which the proprietor of the right is domiciled, there is jurisdiction only

–      in the Member State in which the alleged perpetrator of the infringement is established; and
–      in the Member State(s) to which the website, according to its content, is directed?”

In other words, the question is whether courts can interpret jurisdiction narrowly by only allowing suits over websites that are specifically directed to one jurisdiction, or where the infringing party is established.

To my understanding, the narrow view of jurisdiction would be preferred by many, that is, courts would generally not be willing to exercise jurisdiction just because a website is visible in that country. However, the CJEU has held a generally wider view of jurisdiction, but it had not applied it fully to copyright content. The CJEU had established the view that jurisdiction arose in “both the place where the damage occurred and the place of the event giving rise to it”, so that defendants may be sued in the courts for either of those places.

There is no doubt that Ms Hejduk could have sued in Germany, so following their previous rulings, the CJEU had to consider whether the damage was suffered in Austria. Following existing case law, the court remarked that it does not “require that the activity concerned be ‘directed to’ the Member State in which the court seised is situated”. The CJEU then declared that the court in Austria would have jurisdiction.

This is worrying for those of us who would generally favour a much narrower approach. However, there is a small silver lining in this dark jurisdictional cloud, and it is that the national court has limited power. The Court said that:

However, given that the protection of copyright and rights related to copyright granted by the Member State of the court seised is limited to the territory of that Member State, a court seised on the basis of the place where the alleged damage occurred has jurisdiction only to rule on the damage caused within that Member State …

The court concludes that:

Having regard to all the foregoing considerations, the answer to the question referred is that Article 5(3) of Regulation No 44/2001 must be interpreted as meaning that, in the event of an allegation of infringement of copyright and rights related to copyright guaranteed by the Member State of the court seised, that court has jurisdiction, on the basis of the place where the damage occurred, to hear an action for damages in respect of an infringement of those rights resulting from the placing of protected photographs online on a website accessible in its territorial jurisdiction. That court has jurisdiction only to rule on the damage caused in the Member State within which the court is situated.

One good thing is that online jurisdictional disputes are going to be clearer after this decision.



Ulrik · February 6, 2015 at 2:26 am

Why are you skeptical of a wider approach to jurisdiction? Don’t you think that a very narrow approach lends itself to a “race to the bottom” – as we have seen examples of concerning for instance tax law and the Audiovisual Media Services Directive?


    Andres · February 6, 2015 at 12:04 pm

    I’m just a bit worried that businesses could be sued in countries with quirky legislation if we take the broad approach, but I take your point about creating a race to the bottom.

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