Digital Rights and Jurisdiction: The European Approach to Online Defamation and IPRs Infringements

Abstract

The new media and communication technologies have significantly increased the number of online cross-border disputes involving the security and protection of personal identity as well as of intellectual property creations. The persistent lack of a uniform private international law approach on the matter determines a substantial gap in Internet governance, which results in the application of domestic rules or, where existing, of regional ones. This legal scenario is conducive to conflicts of jurisdiction and, ultimately, to legal uncertainty and instances of forum shopping. The Chapter focuses on the allocation of adjudicative jurisdiction at European level by examining the current EU approach to cross-border online disputes resolution involving the main types of infringements of digital rights (notably, personality rights and IPRs). The absence of EU rules on jurisdiction concerning online tort disputes has encouraged the elaboration of a prolific and controversial case law of the CJEU over the interpretation of Article 7(2) of Brussels I-bis Regulation (i.e. eDate, BOÜ/Ilsjan, Wintergeister, Pinckney and Hejduk rulings). The Chapter provides a thorough and critical insight over the characteristics and trends of this development and comes to propose a brand-new “less is more” normative approach, aimed at reducing the range of eligible fora in light of a well-balanced system of assessment of the competing interests involved.