Monday, March 13, 2006

Rome II regulation - amendments

I was reading through the latest blog, which referred to the recent amendments made to the proposed Rome II regulation on the law to be applicable to non-contractual relations. Several changes have been made to the proposed regulation.
For our purposes, however, it was the original Art. 6 on privacy violations that I was interested in. Just to recap, see my previous blog. However, reading through the relevant sections in the proposals, it was decided that the original Art. 6 would be deleted because the proposed amendments to Art. 6 would have been too favourable to the press:

Amendment 57 would change the substance of the rule applicable to violations of privacy, particularly by the press. The Commission cannot accept this amendment, which is too generous to press editors rather than the victim of alleged defamation in the press and does not reflect the solution taken by a large majority of Member States. Since it is not possible to reconcile the Council’s text and the text adopted by Parliament at first reading, the Commission considers that the best solution to this controversial question is to exclude all press offences and the like from the proposal and delete Article 6 of the original proposal. Other privacy violations would be covered by Article 5.

The proposed Article 5 now reads as follows:
1. Where no choice has been made under Article 4, 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 non-contractual 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. For the purpose of assessing the existence of a manifestly closer connection with another country, account shall be taken inter alia of the expectations of the parties regarding the applicable law.
The proposed Art. 1(2)(h) excludes from the regulation violations of privacy and of personal rights by the media.
My initial reaction is one of disappointment because the original Art. 6 had to be abandoned on the basis of lack of consensus. However, we now have the proposed Art. 5. What is unclear to me is what the Commission means by other privacy violations. Violations committed by individuals other than the press? There will be a number of questions that need to be addressed or at least clarified. I think it is time for further discussion and reading...
Links to the proposed Rome Regulation II:

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