Case C-170/12, Pinckney – where is the harm with an Internet sales offer? [judgment 2013, ECLI:EU:C:2013:635]

For the purposes of EU Regulation 44/2001 (Brussels I), where is ‘the place where the harmful event occurred’ when a vinyl record containing 12 songs of a French author-composer-performer is: copied without the Frenchman’s permission; put onto a CD in Austria; and British companies offer those CDs for sale over the Internet to consumers, including consumers who live in France?

Facts
The claimant is an author-composer-performer. Twelve of his songs were put onto vinyl. Without his permission, these were later copied onto CD by Kdg Mediatech in Austria. The CDs were subsequently offered for sale over the Internet by British companies to consumers, including consumers living in France.

Could the claimant sue in France? The French Court of Cassation noted that the relevant provision was Article 5(3) of EU Regulation 44/2001 (Brussels I), and the phrase ‘the place where the harmful event occurred’. Interpreted in C-68/93, Shevill v. Press Alliance at paragraph 33, the CJEU had taken that phrase to mean that a victim of newspaper libel could sue the publisher in the courts of the state where the publisher of the publication was established, or before the courts of each state where the publication was distributed and where the victim claims to have suffered injury to his reputation.

However, the Court of Cassation also noted that when it came to a trade mark holder and whether a claimant could stop the sale of trade marked goods when the offer for sale on the internet was directed to consumers in the EEA, the CJEU in Case C-324/09, L’Oréal SA v eBay International had said:

64. It must, however, be made clear that the mere fact that a website is accessible from the territory covered by the trade mark is not a sufficient basis for concluding that the offers for sale displayed there are targeted at consumers in that territory (see, by analogy, Joined Cases C 585/08 and C 144/09 Pammer and Hotel Alpenhof [2010] ECR I 0000, paragraph 69). Indeed, if the fact that an online marketplace is accessible from that territory were sufficient for the advertisements displayed there to be within the scope of Directive 89/104 and Regulation No 40/94, websites and advertisements which, although obviously targeted solely at consumers in third States, are nevertheless technically accessible from EU territory would wrongly be subject to EU law.

65. It therefore falls to the national courts to assess on a case-by-case basis whether there are any relevant factors on the basis of which it may be concluded that an offer for sale, displayed on an online marketplace accessible from the territory covered by the trade mark, is targeted at consumers in that territory. When the offer for sale is accompanied by details of the geographic areas to which the seller is willing to dispatch the product, that type of detail is of particular importance in the said assessment.

Equally, the French Court of Cassation noted the CJEU’s remarks in Cases C-509/09 and C-161/10 eDate Advertising and Martinez:

52 …Article 5(3) of the Regulation must be interpreted as meaning that, in the event of an alleged infringement of personality rights by means of content placed online on an internet website, the person who considers that his rights have been infringed has the option of bringing an action for liability, in respect of all the damage caused, either before the courts of the Member State in which the publisher of that content is established or before the courts of the Member State in which the centre of his interests is based. That person may also, instead of an action for liability in respect of all the damage caused, bring his action before the courts of each Member State in the territory of which content placed online is or has been accessible. Those courts have jurisdiction only in respect of the damage caused in the territory of the Member State of the court seised.

The Court of Cassation took the view that neither CJEU judgment appeared applicable to this case before it. Here, the claim arose from offering over the internet, a material fixation of a work, over which the claimant claims copyright, and which the claimant claims has been unlawfully reproduced. The French Court of Cassation was therefore unsure how to interpret EU law.

Questions Referred
According to the Curia website, the French Court of Cassation asks:

Is Article 5(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters to be interpreted as meaning that, in the event of an alleged infringement of copyright committed by means of content placed online on a website,

-    the person who considers that his rights have been infringed has the option of bringing an action to establish liability before the courts of each Member State in the territory of which content placed online is or has been accessible, in order to obtain compensation solely in respect of the damage suffered on the territory of the Member State before which the action is brought,

or

-    does that content also have to be, or to have been, directed at the public located in the territory of that Member State, or must some other clear connecting factor be present?

Is the answer to Question 1 the same if the alleged infringement of copyright results, not from the placing of dematerialised content online, but, as in the present case, from the online sale of a material carrier medium which reproduces that content?

Update
Paragraphs 64 and 65 of Case C-324/09, L’Oréal SA v eBay International also feature in a more recent reference from the Danish Supreme Court, Case C-98/13, Blomqvist. The Danish reference concerns the purchase of a fake Rolex from a Chinese website and Danish customs’ seizure of the watch without offering compensation.