THE BLOG

Enforcing your Rights on the Internet - How do you Choose Where to Sue?

28/01/2015 11:02 | Updated 29 March 2015

The internet - as the name suggests - is truly international. So if you, as a national of one EU state, become aware that a website of another EU state is shamelessly using and abusing your work, where can you take legal action to make them stop?

This is a question which the Court of Justice of the European Union (CJEU) has recently had to consider in connection with a claim by an Austrian photographer, Ms Hejduk, for copyright infringement against a German website. The website had reproduced the photographer's pictures without her consent and made them available for download, and she duly sued for copyright infringement in Austria.

However, the company behind the website argued that they should have been sued in Germany, because the website had a .de top-level domain and was not directed at Austria.

The CJEU disagreed. European rules on jurisdiction permit copyright owners to sue in the defendant's place of domicile but also in "the place where the harmful event occurred or may occur". In the case of copyright infringement on the internet, the judges confirmed that this place includes anywhere from which the website in question is accessible (provided the claimant owns the relevant copyright in that jurisdiction).

So Ms Hejduk was entitled to sue in Austria, although the Austrian Court could only award damages for harm suffered within Austria, not Europe wide. In other words, if Ms Hejduk wanted to claim damages for copies of her work downloaded in Germany, she would have had to sue in Germany.

This decision is consistent with an earlier ruling by the CJEU concerning the online sale of infringing CDs.

However, if Ms Hejduk's claim had been in relation to trade mark infringement, the position would have been somewhat different. In that case, she would not have been able to choose where to sue merely on the basis of the accessibility of the website. Instead she would have had to show that the website was directed at the state in which she chose to sue, eg that it used the language and currency of that state. (A similar rule applies to database right infringement.) On the plus side, she might, with a Community Trade Mark, have been able to obtain a European-wide injunction.

So while the headline takeaway from the Hejduk judgment is that, for copyright infringement, website accessibility can determine where to sue, the final decision will depend very much on what rights you are relying on, and what remedy you are looking for.