Jurisdiction on the internet – the Estonian Supreme Court asks for the advice of the Court of Justice of the European Union*


While the internet has made it easier for people around the world to communicate, it has also created opportunities for widespread infringement of rights, including by the publishing of false statements. Individual about whom the false information is published can be physically thousands of kilometers away from the offender. Internet does not have physical borders and in cross-border disputes, it is difficult to answer the questions concerning applicable law and jurisdiction.

According to the Estonian Supreme Court decision of 23 of March 2016, the Court has requested a preliminary ruling from the Court of Justice of the European Union for greater clarity in the issue of jurisdiction. The issue of the preliminary ruling is related to the methods for determining jurisdiction in a situation where incorrect, defamatory information has been published about a legal entity online and the individual who published the information wrote it in a different European Union member state.

The essence of a request for a preliminary ruling

Pursuant to the Treaty on the Functioning of the European Union, national courts of the European Union should request a preliminary ruling if the settled case law of the Court of Justice does not provide adequate information to decide on the interpretation and application of the Union’s law. This means that national courts have no right to interpret European Union law independently, and if a provision or practice is unclear, the Court of Justice must be addressed for interpretation.

According to information provided on the Estonian Supreme Court’s website, Estonian courts have this far requested a preliminary ruling on 17 occasions in total since 2004. Therefore, Estonian courts do not ask an advice for interpreting European Union law that often, contrary to, e.g., Germany or Italy that request a preliminary ruling on an average of 40 occasions annually.

Online jurisdiction

Jurisdiction determines if state’s court can discuss the case, i.e., if state’s court is competent to settle the case. The present dispute, which gave a reason to request a preliminary ruling, concerns the intention of an Estonian legal entity to sue a Swedish company that, regardless of repeated requests, refused to remove false, defamatory information published about the Estonian plaintiff from its website. The Estonian legal entity wants to settle the dispute in Estonia.

The Supreme Court acknowledged the principles recognised in European Union law (see, e.g., Pez Hejduk v. EnergieAgentur.NRW GmbH), that the victim may file a claim to the court of any member state on the territory of which the content published is or was accessible online. Although it also comes from Pez Hejduk case, that 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. Hence, the plaintiff who is an Estonian legal entity can file an action with the Estonian court based on the mere fact that the defendant’s website, on which incorrect information was published, is accessible in Estonia.

Despite that, the Supreme Court finds that it is not clear from the present Court of Justice of the European Union case-law whether or not, in addition to a claim for damages, also a claim for rebutting the incorrect data and for removing the comments could be addressed. Thus, the Supreme Court found it necessary to request a preliminary ruling from the Court of Justice.

Importance of the preliminary ruling

Given that when determining jurisdiction for violations committed online, there are still several open questions both in Estonia and in the entire world, the Supreme Court’s request for greater clarity from the Court of Justice is most welcome. However, we will have to wait nearly two years or even more for the ruling to arrive.

* TRINITI Law Firm is representing the plaintiff in this action.

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