Select Committee on European Union Minutes of Evidence

Letter from The Newspaper Society

  We welcome the Committee's decision to undertake a detailed inquiry as we believe that the UK government must ensure that the proposal is substantially revised.

  The application of the proposed text and in particular Articles 3 and 6 are of deep concern to the media. The European associations representing broadcasters and publishers of national, regional and local newspapers, magazines and books across Europe have explained to the Commission and European Parliament why the proposal must not be enacted in its current form. UK publishers and broadcasters have actively supported these pan-European representations.

  When the draft text now under the Committee's consideration was published, UK broadcasting and publishing organisations made a joint submission, after consultation of counsel, to the Department of Constitutional Affairs in November. The submission set out in detail the legal problems created by the draft Regulation and its damaging effect upon the media. It explained the necessity for amendment of the draft and common view on the form that amendment might take. This detailed submission was supported by Associated Newspapers, the BBC, Independent Television News, News International, Reuters, the Newspaper Society (on behalf of the regional newspaper industry), the Periodical Publishers Association (on behalf of the magazine industry), the Publishers Association (on behalf of book publishers), and the European Publishers' Council.

  In brief, the Newspaper Society's position on the draft Regulation is as set out below.

    —  Enactment of the revised draft of the proposed Rome II Regulation would create an unworkable and uncertain legal regime, damaging to the UK media industry. Its provisions relating to defamation, privacy and related actions would create a chilling effect upon freedom of expression, affecting any private individual or contributor, as well as any commercial publisher or broadcaster. Despite the attempted revision by the Commission, the proposal would increase the vulnerability and exposure of the media as well as individual publishers to complex and costly legal action, under a multitude of overseas laws, including those alien to the UK or any Member State of the EU, under a regime so uncertain and unpredictable that it will be impossible to guard against legal claims.

    —  The Society and other media organisations have questioned the competence of the Community legislature to bring forward this proposal in respect of defamation, privacy and related actions, given its limited legal competence over media content. It is vital for this fundamental issue to be urgently and properly examined by the UK government and the Commission.

    —  In relation to Articles 3 and 6 of the Draft Regulation, the Commission as a matter of Community Law cannot exercise its competence as the Commission has failed to demonstrate that it has satisfied the tests in Articles 5 and 65(b) EC. As the united opposition of UK and EU media organisations graphically illustrates, the Commission has failed to demonstrate, or indeed produce any evidence to establish, that harmonisation of the conflict of laws rules relating to privacy and defamation is "necessary" for the promotion of the internal market.

    —  Even if it were "necessary" to do so, Articles 3 and 6 of the Draft Regulation, will damage, not promote the Internal Market. The media has put forward submissions to the DCA that set out the effect of enactment of Articles 3 and 6, concluding that Article 3 is unworkable, will create greater legal uncertainty than exists at present and cannot assist the proper functioning of the internal market. Moreover, its application in cases involving mass media and Internet publishers is likely to result in excessive delays contrary to Article 6(1).

    —  The draft Regulation is incompatible with the E-Commerce Directive and undermines the principle of `home country control' enshrined in that Directive. It subjects to wholly different national legal regimes the same material published at the same time by the same publisher.

    —  The draft Regulation will lead to arbitrary results, depending simply upon whether the publication is on-line or off-line, violating the principle of legal certainty and creating a chilling effect upon the exercise by the media and individuals of the fundamental right to freedom of expression. Indeed, the huge legal costs that may be engendered by the proposed regime will then add further to the chilling effect of the proposal. It will also compel a UK court to give effect to foreign and non-EU laws highly prejudicial to the publisher, which restricts the freedom of an EU publisher to provide an information society service within the UK. Moreover, the UK publishers and individuals will lose the benefit of the double actionability rule, which the UK Parliament accepted was necessary for protection of press freedom and freedom of expression. No effective substitute for the double actionability rule has been proposed by the Commission.

    —  If, as the media has submitted, the Commission has failed to demonstrate that the draft Regulation is necessary in the area of defamation, privacy and related rights, that area should be excluded from the scope of the draft Regulation and included in the list of excluded matters in Article 1.

    —  In the event that the Commission succeeds in demonstrating that harmonisation in this area is "necessary", then the Regulation should adopt the `country of origin rule'.

    —  The Newspaper Society submits that the following changes must be made to the draft Regulation in order to secure compliance with Community Law and Convention Law and consistency with the E-commerce Directive.

  (1)  Article 3 of the Draft Regulation should be replaced by the following text:


    The law applicable to a non-contractual obligation arising out of a violation of privacy or rights relating to the personality shall be the law of the country in which the defendant is established irrespective of the country where the damage arises or is likely to arise, irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event arise.


    However, where the person claimed to be liable and the person sustaining damage both have their habitual residence in the same country when the damage occurs, the non-contractual obligation shall be governed by the law of that country.


    Notwithstanding paragraphs 1 and 2, where it is clear from all the circumstances of the case that the non-contractual obligation is manifestly more closely connected with another country, that law of that other country shall apply. A manifestly closer connection with another country may be based in particular on a pre-existing relationship between the parties, such as a contract that is closely connected with the non-contractual obligation in question.

  (2)  Article 25 of the draft Regulation should refer expressly to the Convention.

  The Newspaper Society does not believe that any convincing case has been made for change on the grounds that any injustice would be caused to potential claimants by retention of the existing law or introduction of a country of origin rule. Overseas claimants already choose to sue under the laws of libel and confidence of England and Wales. This is and will continue to be the place of legal establishment of UK local and regional newspaper publishers, which are embedded in their local communities. The UK Parliament and the courts have through statute and common law developed the law of defamation, confidence and a myriad other laws that impact upon individual free speech as well as media publication. In doing so, as a matter of public policy, they have tried to ensure some balance and there have been limits set or appropriate defences developed to protect freedom of expression. This protection must not be jeopardised.

  The Newspaper Society hopes that the Committee will consider this issue and recommend that the draft Regulation be amended.

12 January 2004

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