Thursday, February 09, 2006

Proposed Rome II Regulation

I was reading through the press release, which seemed to indicate that there is some support by the UK government to the 'country of origin' proposal under the Rome Regulation II. The draft Rome Regulation II deals with non-contractual disputes and includes a provision on privacy. The draft proposal can be found here (pdf). Art. 6 of the proposed regulation provides for the violation of privacy and rights relating to personality:

Art. 6

1. 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 forum where the application of the law designated by Article 3 would be contrary to the fundamental principles of the forum as regards freedom of expression and information.
2. The law applicable to the right of reply or equivalent measures shall be the law of the country in which the broadcaster or publisher has its habitual residence.

Art. 3 provides that

1. The law applicable to a non-contractual obligation shall be the law of the country in which 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.

2. 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 noncontractual obligation shall be governed by the law of that country.

3. 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, the 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.

The provision is significant because if it goes through then theoretically if an applicant suffers damage in a country that has stronger privacy rights, he/she could use their laws rather than rely on the UK, which does not have a common law to privacy but has to rely on the Data Protection Act 1998, law of confidentiality and where relevant the Human Rights Act 1998 (Art. 8 of the ECHR). It might be worthwhile for me to write an article on the implications of the proposed regulation.

For more details on the Rome Regulation II, see Diane Wallis's (MEP) website as a starting point.

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