Cross-border legal issues which arise – even when staying at home!

Last week, I had the pleasure of attending a webinar hosted by Dr Kirsty J Hood QC of Themis Advocates. The title of the webinar was “Cross-border legal issues which arise – even when staying at home!” which discussed the legal implications of a variety of activities taking place, despite lockdown/the pandemic.

If you haven’t had the opportunity to study private international law yet during your studies, I would highly recommend it! My final year LLB dissertation on online defamation was a private international law topic and I loved it – if you haven’t studied this module before, I’ll break down some of the more technical points, but I’m more than happy to discuss further, so please just get in touch.

What kind of legal issues can arise?

Private international law is made up of the tripartite division of issues:

  1. Jurisdiction (which court(s) the plaintiff can sue in)
  2. Applicable law (which law will apply to the case)
  3. Recognition and enforcement of judgements (where/how a foreign judgment will be recognised)

Kirsty gave three main examples of the types of legal issues that can arise, regardless of the effects on the pandemic on day-to-day life, because of their online nature:

  • The rules governing online services
  • The rules governing the purchase and sale of goods on the Internet
  • The rules governing defamatory remarks made in emails or online forums

Online services – contracts & jurisdiction

An example of an online service is that of booking sites, like TripAdvisor. It tends to be the case that if one wishes to use the online service, you have to accept all of the terms and conditions of the online service – there is no negotiation involved. However, Kirsty highlighted the case of Clark v TripAdvisor LLP (judgment available here) which reveals a key private international law issue.

In Clark, the plaintiffs used TripAdvisor to advertise their holiday home in Scotland. There were some anonymous comments which they deemed to be defamatory on their listing, but in order to begin a defamation action, the plaintiffs had to obtain the names of the posters. In short, to reveal the posters’ identities, the plaintiffs sought to reply on the Administration of Justice (Scotland) Act 1972, which enables a court to order the disclosure of the identities of persons who could be witnesses or defendants in civil proceedings. However, the issue with this case is that this Act only applies in Scotland, whereas TripAdvisor is incorporated in Massachusetts. Thus, the declined jurisdiction and having accepted the terms of conditions of TripAdvisor, the plaintiffs agreed to submit to the exclusive jurisdiction of the courts in Massachusetts.

What this case highlights a jurisdictional issue which arises when using an online service, like TripAdvisor. Since there is usually the possibility to negotiate the online service’s terms and conditions, one should be aware of what one is agreeing to when using the service. An interesting article you can check out is Harris, “Understanding public policy to the enforceability of forum selection clauses after Douez v Facebook” (2019) 15 Journal of Private International Law 50.

As for the sources of jurisdiction rules, there is a hierarchy of Conventions:

  • Brussels I (recast) Regulation 2012
  • Lugano Convention 2007
  • Hague Convention on Choice of Court Agreements 2005
  • Civil Jurisdiction and Judgments Act 1982, Schedule 8 (residual rules)
  • Civil Jurisdiction and Judgments Act 1982, Schedule 4 (intra-UK disputes)

The UK is currently a Contracting State of the Brussels I (recast) Regulation, which is European Union instrument. After the UK’s Brexit transitional period, this Regulation will no longer have any application in the UK, though the Government has indicated an interest in joining the Lugano Convention. If this is not the case, the Civil Jurisdiction and Judgments Act 1982 will be the key piece of law governing jurisdiction.

Online services – contracts & applicable law

The governing Regulation on applicable law is the Rome I Regulation 2008 which has a number of interesting features. It allows the parties to choose the law which governs their dispute, as well as providing the applicable law in the absence of such a choice. There is also protection for ‘weaker parties’ – those with less bargaining power.

The Rome I Regulation is also a European Union instrument, so the rules will continue to apply to contracts concluded before the end of the transition period. However, after the Brexit transition period, the UK has indicated that there will not be a huge amount of change, as it plans to retain much of the law from the Regulation, albeit with some tweaking to make the law workable in the new context.

Online torts – delict & jurisdiction

An example of a delict that can occur online is defamation. As above with contract law, the same hierarchy for delict applies. Starting with the Brussels I (recast) Regulation, the general rules is that the plaintiff can choose to sue the defendant in the place of the latter’s domicile (Article 4). However, the Regulation also provides what is known as “special jurisdiction”, which allows the plaintiff to also sue the defendant in the place where the harmful event occurred. After the landmark case of Bier, the place of the harmful event consists of the place of damage and the place of the event giving rise to the damage. Where these two places are different, the plaintiff ha a complete choice as to which court they would like to raise proceedings in.

As above for contract law, the hierarchy applies with the potential that if the UK does not partake in the Lugano Convention, the Civil Jurisdiction and Judgments Act 1982 will be of particular importance again.

Online torts – delict & applicable law

The initial starting point to determine the applicable law in delict is the Rome II Regulation. The primary rule is that the applicable law is the law where the damage occurred. However, the Regulation also provides for a number of exceptions – a notable one being where the parties have a common habitual residence so in such a case, that law would apply. There is also an escape clause which applies the law of the country which the delict is manifestly more closely connected with.

Interestingly, there are certain delicts which are excluded from the scope of the Rome II Regulation. A key one being defamation. This means there are no harmonised choice of law rules for defamation and instead, the applicable law is determined according to the national law of the court seised. Defamation is excluded because it was the subject of a period of heated back and forth discussion on which law should be applicable between the European Parliament and the European Council.

Takeaway

This was an incredibly insightful webinar for both revisiting some Private International Law material but also for considering the UK position post-Brexit. It highlighted that there can be a wide range of cross-border legal issues which can arise, including contractual disputes and delicts like defamation, even whilst everyone is staying at home during this pandemic.

It also served as a reminder to always read the terms and conditions, otherwise we could be submitting to the jurisdiction of a foreign court as the plaintiffs discovered in Clark!

Huge thanks to Kirsty for her time during the webinar and for Themis Advocates for hosting!

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