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.