Electronic Commerce Law: Lessons Learned from the cases Ker Optika and eDate Martinez

*Note that this article does not constitute legal advice and is for general information purposes only

Case C-108/09 Ker-Optika (Court of Justice of the EU)

In this case Ker Optola , the court considered whether Directive 2000/31/EC precluded Hungarian legislation that placed limitations on the sale of contact lenses to only specialized shops for the sale of medical devices prevented the sale of contacts online.[1] The ECJ held that the sale of contact lenses via the internet falls under the scope of Directive 2000/31/EC.[2] However, the supply of contact lenses does not fall under the Directive.[3] After determining that the Directive covered the sale of contact lenses online, the court went on to consider whether national legislation for public interest purposes could place such restrictions and if the measures implemented were proportionate to the public interest objective.[4]

Ker Optika highlights how national laws designed to protect health, may not be able to restrict the sale and advertising of medical devices online. [5] The court emphasized that member states have a broad discretion to determine if a matter is of public interest; however, national legislation must satisfy the principle of proportionality.[6] Restricting the sale of contact lenses online was excessive, and lesser restrictive means could have been used to achieve the desired public interest objectives.[7]

I think one of the most important lessons that EU member states can gain from Ker Optika, is that States do have some discretion to identify and address public health interests but cannot take measures that are too restrictive to achieve the desired objective. [8] As per the Directive, a state can request that another member state take specific measures, and if measures are not taken or inadequate, a state can notify the European Commission of that member’s intention to take specific measures.[9] By providing a notification procedure mechanisms, states can still regulate public health interests.[10] However, I believe that this could lead internet health companies to forum shop in the EU to establish and operate their company from a jurisdiction that has the least restrictive regulatory regime. I believe that the case was correctly decided and that the Directive provides a balanced approach to allowing EU member states the regulatory freedom for matters relating to public health while at the same time facilitating the movement of good across borders in the EU. [11]

[1] Case C-108/09 Ker-Optika (Court of Justice of the EU)

[2]-[3] Ibid

[4] Ibid — Article 34 & Article 36 Treaty of the Functioning of the European Union (TFEU)

[5] Erik Vollerbreft, “Consequences of the EU Ker-Optima Case for e-commerce in Physical Medical Devices and Apps for eHealth Services” (2012) EJBI 8(2):34–39

[6] — [7] Supra 1

[8] Saddler, Nicolas, “Restriction of the Sale of Pharmaceuticals and Medical Devices such as Contact Lenses over the internet and the Free Movement of Goods” (2012) Vol 19(1)

[9] — [10] Supra 1

[11] Supra 5

Case C-509/09 eDate Advertising GmbH v X and Oliver Martinez v MGN Ltd (25 October 2011)

The eDate Martinez decision established rules for determining jurisdiction in cases involving infringement of personality rights for content published on the internet. [1] The case clarified the interpretation of Article 5(3) of Brussels I Regulation for the jurisdiction and recognition and enforcement of judgments in civil and commercial matters and further interpreted the application of Article 3 of Directive 2000/31/EC. [2] This decision amended the previous Shevill doctrine by giving claimants for matters relating to defamatory statements on the internet, the choice to sue in the jurisdiction of their ‘centre of interests’ for damages suffered worldwide.[3] I will argue that this approach is pro-plaintiff, making it easier for claimants to establish jurisdiction against e-commerce service providers in the EU. However, I believe that there must be a balancing act between the defendant’s freedom of speech and the claimant’s right to personality rights. [4] I think that the European Court of Justice (ECJ) should have adopted a more technologically neutral approach to establishing jurisdiction as was proposed in the Opinion of the Advocate General.[5]

The eDate Martinez decision “strengthened the protection of alleged victim[s]” of online defamatory publications who are often placed in a vulnerable position, as online publications can have an instantaneous global reach. [6] In addition to being able to sue the defendant for damages in the defendants Member State for all the harm caused by the defamation, and being able to sue in the courts of each Member State where the the defamation was published and distributed for the harm caused within that particular Member State, claimants now have a third option. [7] Per eDate Martinez, a claimant can now seek legal redress before the jurisdiction of their ‘centre of interests,’ making it easier for a claimant to avoid the defendants jurisdiction and establish jurisdiction in their ‘home jurisdiction’. [8]

Provided the ECJ adopted the Advocates General approach, it would have been more difficult for a claimant to establish jurisdiction against e-commerce service providers in the EU. In the Opinion of the Advocate General, there should be a third possibility to seek legal redress at “the place where the centre of gravity of the dispute is located”. [9] Centre of gravity is established when two aspects are met which include the published content “arouses interest in a particular territory” and where the person having personality right has their “centre of interests.” [10] Factors taken into consideration would also include ‘language used, intention of published, advertising, category of content.’[11] The Centre of Gravity analysis is similar to evaluating forum (non) conveniens and may be more difficult for a claimant to access the courts. [12]

[1] C-509/09 eDate Advertising GmbH v X and Oliver Martinez v MGN Ltd (25 October 2011)

[2] -[3] Ibid

[4] J Oster, ‘Rethinking Shevill: conceptualising the EU private international law of Internet torts against personality rights’ (2012) 26 International Review of Law, Computers & Technology 113–128 [E-journals]

[5] Ibid

[6] — [7] Supra 1

[8] Supra 4

[9] Opinion of Advocate-General Cruz Villalo ́n of 29 March 2011, Cases C-509/09 and C-161/ 10 [65]

[10] Ibid

[11] Supra 1

Jennifer Harding-Marlin / jhmarlin.com