Letter from The Newspaper Society
We welcome the Committee's decision to undertake
a detailed inquiry as we believe that the UK government must ensure
that the proposal is substantially revised.
The application of the proposed text and in
particular Articles 3 and 6 are of deep concern to the media.
The European associations representing broadcasters and publishers
of national, regional and local newspapers, magazines and books
across Europe have explained to the Commission and European Parliament
why the proposal must not be enacted in its current form. UK publishers
and broadcasters have actively supported these pan-European representations.
When the draft text now under the Committee's
consideration was published, UK broadcasting and publishing organisations
made a joint submission, after consultation of counsel, to the
Department of Constitutional Affairs in November. The submission
set out in detail the legal problems created by the draft Regulation
and its damaging effect upon the media. It explained the necessity
for amendment of the draft and common view on the form that amendment
might take. This detailed submission was supported by Associated
Newspapers, the BBC, Independent Television News, News International,
Reuters, the Newspaper Society (on behalf of the regional newspaper
industry), the Periodical Publishers Association (on behalf of
the magazine industry), the Publishers Association (on behalf
of book publishers), and the European Publishers' Council.
In brief, the Newspaper Society's position on
the draft Regulation is as set out below.
Enactment of the revised draft of
the proposed Rome II Regulation would create an unworkable and
uncertain legal regime, damaging to the UK media industry. Its
provisions relating to defamation, privacy and related actions
would create a chilling effect upon freedom of expression, affecting
any private individual or contributor, as well as any commercial
publisher or broadcaster. Despite the attempted revision by the
Commission, the proposal would increase the vulnerability and
exposure of the media as well as individual publishers to complex
and costly legal action, under a multitude of overseas laws, including
those alien to the UK or any Member State of the EU, under a regime
so uncertain and unpredictable that it will be impossible to guard
against legal claims.
The Society and other media organisations
have questioned the competence of the Community legislature to
bring forward this proposal in respect of defamation, privacy
and related actions, given its limited legal competence over media
content. It is vital for this fundamental issue to be urgently
and properly examined by the UK government and the Commission.
In relation to Articles 3 and 6 of
the Draft Regulation, the Commission as a matter of Community
Law cannot exercise its competence as the Commission has failed
to demonstrate that it has satisfied the tests in Articles 5 and
65(b) EC. As the united opposition of UK and EU media organisations
graphically illustrates, the Commission has failed to demonstrate,
or indeed produce any evidence to establish, that harmonisation
of the conflict of laws rules relating to privacy and defamation
is "necessary" for the promotion of the internal
Even if it were "necessary"
to do so, Articles 3 and 6 of the Draft Regulation, will damage,
not promote the Internal Market. The media has put forward submissions
to the DCA that set out the effect of enactment of Articles 3
and 6, concluding that Article 3 is unworkable, will create greater
legal uncertainty than exists at present and cannot assist the
proper functioning of the internal market. Moreover, its application
in cases involving mass media and Internet publishers is likely
to result in excessive delays contrary to Article 6(1).
The draft Regulation is incompatible
with the E-Commerce Directive and undermines the principle of
`home country control' enshrined in that Directive. It subjects
to wholly different national legal regimes the same material published
at the same time by the same publisher.
The draft Regulation will lead to
arbitrary results, depending simply upon whether the publication
is on-line or off-line, violating the principle of legal certainty
and creating a chilling effect upon the exercise by the media
and individuals of the fundamental right to freedom of expression.
Indeed, the huge legal costs that may be engendered by the proposed
regime will then add further to the chilling effect of the proposal.
It will also compel a UK court to give effect to foreign and non-EU
laws highly prejudicial to the publisher, which restricts the
freedom of an EU publisher to provide an information society service
within the UK. Moreover, the UK publishers and individuals will
lose the benefit of the double actionability rule, which the UK
Parliament accepted was necessary for protection of press freedom
and freedom of expression. No effective substitute for the double
actionability rule has been proposed by the Commission.
If, as the media has submitted, the
Commission has failed to demonstrate that the draft Regulation
is necessary in the area of defamation, privacy and related rights,
that area should be excluded from the scope of the draft Regulation
and included in the list of excluded matters in Article 1.
In the event that the Commission
succeeds in demonstrating that harmonisation in this area is "necessary",
then the Regulation should adopt the `country of origin rule'.
The Newspaper Society submits that
the following changes must be made to the draft Regulation in
order to secure compliance with Community Law and Convention Law
and consistency with the E-commerce Directive.
1. REVISION OF
(1) Article 3 of the Draft Regulation should be replaced
by the following text:
The law applicable to a non-contractual obligation
arising out of a violation of privacy or rights relating to the
personality shall be the law of the country in which the defendant
is established irrespective of the country where the damage arises
or is likely to arise, irrespective of the country in which the
event giving rise to the damage occurred and irrespective of the
country or countries in which the indirect consequences of that
However, where the person claimed to be liable and
the person sustaining damage both have their habitual residence
in the same country when the damage occurs, the non-contractual
obligation shall be governed by the law of that country.
Notwithstanding paragraphs 1 and 2, where it is clear
from all the circumstances of the case that the non-contractual
obligation is manifestly more closely connected with another country,
that law of that other country shall apply. A manifestly closer
connection with another country may be based in particular on
a pre-existing relationship between the parties, such as a contract
that is closely connected with the non-contractual obligation
(2) Article 25 of the draft Regulation should
refer expressly to the Convention.
The Newspaper Society does not believe that
any convincing case has been made for change on the grounds that
any injustice would be caused to potential claimants by retention
of the existing law or introduction of a country of origin rule.
Overseas claimants already choose to sue under the laws of libel
and confidence of England and Wales. This is and will continue
to be the place of legal establishment of UK local and regional
newspaper publishers, which are embedded in their local communities.
The UK Parliament and the courts have through statute and common
law developed the law of defamation, confidence and a myriad other
laws that impact upon individual free speech as well as media
publication. In doing so, as a matter of public policy, they have
tried to ensure some balance and there have been limits set or
appropriate defences developed to protect freedom of expression.
This protection must not be jeopardised.
The Newspaper Society hopes that the Committee
will consider this issue and recommend that the draft Regulation
12 January 2004