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Proceedings against website owner - June-22-12
Source: The Times - Law
Court of Justice of the European Union
Published June 22, 2012
G v de Visser (Case C-292/10)
Before President of Chamber, A. Tizzano, Judges M. Safjan (Rapporteur), A. Borg Barthet, J.-J. Kasel and M. Berger
Judgment March 15, 2012
Where it was impossible to locate the whereabouts of a defendant, European Union law did not preclude the issue of judgment by default in circumstances where the document instituting proceedings had been served by public notice under national law, provided that the court seised of the matter had first satisfied itself that all investigations required by the principles of diligence and good faith had been undertaken to trace the defendant.
The Court of Justice of the European Union (First Chamber) so ruled on a reference for a preliminary ruling from the Landgericht Regensburg (Germany) in proceedings between the claimant, Ms G, and the defendant, Mr de Visser.
Mr de Visser was the owner of a domain name and ran an Internet site on which he had published photographs of Ms G partly naked. Ms G had never agreed that those photographs should be published and she wished to bring proceedings against Mr de Visser. However, it was not possible to locate him and the national court ordered service by public notice of the initiating application, in accordance with the German Code of Civil Procedure.
The time-limits set in that notice by which Mr de Visser was to inform the court whether he would defend the action expired without reaction from him and so it was assumed that he was not aware of the proceedings.
Having doubts, inter alia, as to the applicability and interpretation of Regulation (EC) No 44/2001, the Landgericht Regensburg decided to stay the proceedings and refer questions to the court for a preliminary ruling.
THE COURT (First Chamber) ruled that article 4(1) of Council Regulation (EC) No 44/2001 of December 22, 2000, on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters did not preclude the application of article 5(3) of that Regulation to an action for liability arising from the operation of an Internet site against a defendant who was probably a European Union citizen but whose whereabouts were unknown if the court seised of the case did not hold firm evidence to support the conclusion that the defendant was in fact domiciled outside the European Union.
European Union law did not preclude the issue of judgment by default against a defendant on whom, given that it was impossible to locate him, the document instituting proceedings had been served by public notice under national law, provided that the court seised of the matter had first satisfied itself that all investigations required by the principles of diligence and good faith had been undertaken to trace the defendant.
European Union law precluded certification as a “European Enforcement Order” within the meaning of Regulation (EC) No 805/2004 of the European Parliament and of the Council of April 21, 2004, of a judgment by default issued against a defendant whose address was unknown.
Article 3(1) and (2) of Directive 2000/31/EC of the European Parliament and of the Council of June 8, 2000, on certain legal aspects of information society services, in particular electronic commerce, in the internal market did not apply to a situation where the place of establishment of the information society services provider was unknown, since application of that provision was subject to identification of the member state in whose territory the service provider in question was actually established.
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