Posts
Recently the European Court of Justice (“ECJ”) issued
a ruling that apparently allows a French court to order content to be removed
from websites in other European Union countries. A dealer of Samsung products had complained
that other Samsung dealers were selling products online in France, Spain, Italy
and elsewhere, in violation of a contract.
The dealer sued Amazon in France, relying on a French law that imposes
liability on parties that directly or indirectly assist dealers to sell outside
of a selective distribution network, despite prohibitions, and seeking an order
requiring Amazon to remove those dealers’ products from Amazon in each of those
countries. The trial court and appeal
court dismissed the claim on grounds that they lacked jurisdiction over foreign
websites not directed at the French public. The
French Court of Cassation (the country's highest court for civil matters) referred the issue to the ECJ.
Article
5(3) of the Brussels I Regulation provides that, in tort cases, a person
residing in a European Union member state may be sued in another E.U. member
state, “in the courts of the place where the harmful event occurred or may
occur”.* This provision had previously been
interpreted to include also where damage occurred (provided that such
jurisdiction has laws that protect the right that was allegedly
infringed). A plaintiff could sue in
either the place where the harmful event occurred or where the damage
occurred.
The ECJ held it was
irrelevant that the websites outside France are not directed toward the French
public. It was enough that what was
happening in those countries (i.e. the sale of Samsung products on Amazon) did
or could cause damage in France, and that is for the French court to
determine.
The result was that the
ECJ held that Article 5(3) confers jurisdiction on the courts of member states
whose laws protect prohibitions against sales outside of a selective
distribution network, provided that the plaintiff suffered damage in that
member state. See Case C 618/15 Concurrence SARL v. Samsung Electronics
France and Amazon Services Europe SARL.
This case will remind
readers of this blog of Equustek
Solutions v. Datalink Technologies Gateways et al 2015 BCCA 265 , in
which the B.C. Court of Appeal ruled
that the B.C. courts have power to order Google to remove content from results
of searches done anywhere in the world.
That case is under appeal to the S.C.C.
(See my posts of July 9, 2015, Feb. 18, 2016 and March 28, 2016).
The ECJ’s ruling that
damage occurring in the forum is itself a basis for jurisdiction over a foreign
defendant stands in contrast to the Supreme Court of Canada’s 2012 decision in Van Breda, that damage occurring or sustained in the
forum is not a sufficient connection to that forum to justify the assumption of
jurisdiction.
*This regulation has been
repealed but the corresponding provision in the regulation replacing it, Reg.1215/2012
(the Brussels Ibis Regulation), has identical language.
