The Position of Broadcasters and Other Media under the Proposed EC 'Rome II' Regulation on the Law Applicable to Non-Contractual Obligations

Abstract:     
Broadcasters and other media are particularly susceptible to claims in defamation, infringements of privacy or of other interests in personality. They may be also sued for other civil wrongs (torts) such as alleged breaches of intellectual property rights or for acts of unfair competition. When such claims comprise international elements, e.g. where a broadcast causes prejudice abroad, or claimants are foreign, a country's rules on private international law decide which law governs liability. These national rules of EU member states are about to be replaced by the so-called 'Rome II' Regulation on the law applicable to non-contractual obligations. It will have great impact, not in the least because the courts of EU member states must apply the proposed rules to all international torts, regardless of the place of establishment or residence of the parties involved, or the place where the civil wrong was committed. A critical review of the rules reveals they are unlikely to bring any significant increase in legal certainty for broadcasters or the media in general. The rules for intellectual property do not accommodate the realities of a networked world. The freedom of parties to a dispute to choose the applicable law is limited. In addition, the European Parliament and Council bitterly disagree on how to tackle defamation and other infringements of personality rights.

Keywords: private international law, defamation, intellectual property, personality rights, broadcast media, Rome II regulation, European Union

JEL Classifications: K11, K13, K41, K33

Accepted Paper Series