On 22 January 2015 the European Court of Justice (ECJ), in its judgment C-441/13, held that a court of a Member State where a work is accessible online does have jurisdiction to hear the case if the damage has occurred or might occur in that Member State.
Article 2 of Regulation 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters ("Regulation 44/2001") stipulates that persons domiciled in a Member State shall be sued in the courts of that Member State. By way of exception, and hence to be interpreted restrictively, Article 5(3) of this Regulation states that the courts of the place where the harmful event occurred or might occur can be seized in matters relating to tort, delict, or quasi-delict.
In the case at stake, a German-based company hadpublished on its website pictures that were taken by an Austrian photographer and had done so without this
photographer's consent and without any recognition of authorship. The photographer subsequently sued the company before the Austrian courts. The company (defendant) argued that the Austrian courts lacked jurisdiction because the website was not directed at Austria and that the mere fact that the website can be accessed from Austria is insufficient to confer jurisdiction on the Austrian courts.
The ECJ confirmed, however, that in accordance with Article 5(3) of Regulation 44/2001, the Austrian courts could be seized on the basis of the place where the alleged damage occurred. As a matter of fact, the likelihood of damage occurring in a particular Member State is subject to the condition that the right whose infringement is alleged is protected in that Member State.
The ECJ further confirms that unlike Article 15(1) of Regulation 44/2001, Article 5(3) does not require that the activity concerned be directed to the Member State in which the court seized is situated. In the case at issue, the occurrence of damage and/or the likelihood of its occurrence arise from the accessibility in the Member State of the photographs to which the rights relied on retain.
