Pedro De Miguel Asensio
The significance of private international law in regulating internet activities has traditionally been underestimated. The complexity and high specialisation of this field alongside the peculiar ecosystem of the internet have been relevant factors in that regard. The importance of non-State rules – such as those developed by online platforms or entities involved in the governance of the technical infrastructure of the internet – and the regulatory challenges raised by decentralised networks and other relevant technologies do not detract from the fact that national legal orders cover both offline and online conduct and that States remain the primary entities to regulate online activities and content (and to establish the limits within which party autonomy is admissible).
A better understanding and application of private international law can decisively contribute to remedy certain deficiencies in the enforcement of national legal orders and EU law to cross-border online activities. In this context, the valuable contribution that this well-researched book by Tobias Lutzi represents can hardly be overestimated.
The book is divided into six chapters, including a brief introduction and the discussion in Chapter II of the main challenges posed by the internet to private international law. Chapter III assesses the potential of conflict of laws as a tool to regulate civil liability arising from online conduct with a focus on historical and methodological considerations. Chapter IV contains a critical assessment of the case law of the Court of Justice concerning the application of EU private international law instruments to internet cases. According to Lutzi, the current interpretation by the Court leads to a multiplicity of overlapping competent courts and applicable laws. He criticises this situation as a source of increasing liability risks, uncertainties and obstacles to the effective enforcement of the law. The author argues that EU private international law should be interpreted in a way in which it favours the aim of online platform providers of creating a uniform regulatory framework across the platform. He rejects the view that information society providers should be subject to a multiplicity of laws and jurisdictions even in situations in which their online activities produce significant effects in many countries. In Lutzi’s view the approach by the Court may be overprotective of those who claim that their rights have been infringed.
Therefore, the author proposes an alternative model in Chapter V. He advocates the adoption of a separate EU instrument on jurisdiction and applicable law to civil liability in the context of the pursuit or use of information society services, although such a development would also be a source of uncertainty and further complexity with regard to EU private international law. The proposed rules are intended to cover all civil liability claims – and even contractual obligations – arising from internet activities other than infringements of registered IP rights. As maintained by Lutzi, a simple set of provisions combining a country of origin default rule with a targeting-based exception for structurally weaker parties would provide a more efficient and appropriate model. The effort by the author to draft a specific legislative proposal is to be welcomed. It enables the comparison with other similar endeavours, usually limited to specific areas such as IP rights or privacy. Additionally, his criticism of certain aspects of the case law of the Court of Justice is in line with the view that a broad understanding of the case law on mere accessibility to content as a pertinent factor to locate the place of the damage under Article 7(2) Brussels I Regulation could lead to excessive results.
However, doubts may arise as to the ability of such a simple and broad proposal to take due account of the complexities of this area. For instance, such an extension of the country of origin principle beyond the EU could prove particularly problematic. On a different note, notwithstanding the increasing importance of the country of origin approach in EU copyright law, the coexistence of national territorial rights requires a specific analysis even within the EU. Doubts may also arise as to the consistency of such a model primarily focused on combatting fragmentation of jurisdiction and applicable law (beyond the EU) with the position of global platforms and the profound impact that their activities have in each single country in which they operate. Fragmentation – and the need for additional coordination – is also consistent with the existence of significant differences at world level concerning the scope and balancing of the fundamental rights involved, including personal data protection. The increasing role not only of geolocation tools but also of blocking injunctions restricting access from the forum to illegal content is relevant in this regard.
In a nutshell, the book provides an excellent analysis of the regulatory potential of private international law to address the challenges posed by cross-border online activities. It also proposes a specific model to reduce fragmentation of jurisdiction and applicable law that should be taken into consideration in future discussions on the evolution of EU private international law.
Pedro De Miguel Asensio is a Professor at the Complutense University of Madrid. His recent publications include Conflict of laws and the Internet, Edward Elgar, 2020.