Research Handbook on EU Private International Law
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Research Handbook on EU Private International Law

  • Research Handbooks in European Law series

Edited by Peter Stone and Youseph Farah

The harmonisation of private international law in Europe has advanced rapidly since the entry into force of the Treaty of Amsterdam. Most aspects of private international law are now governed or at least affected by EU legislation, and there is a substantial and growing body of case-law from the European Court as well as the courts of the Member States. This timely Handbook addresses key questions and problems that currently exist in the rules of private international law laid down by European Union regulations.
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Chapter 11: Defamation and privacy and the Rome II Regulation

David Kenny and Liz Heffernan

Extract

When the Rome II Regulationentered into force on 11 January 2009, it was a milestone in the harmonisation of European Private International Law. It was the culmination of a very long process, and the fulfilment of a very old aspiration of the European project. Agreement on rules for choice of law in contract had emerged quickly; agreement for non-contractual obligations took a great deal longer to come to fruition. Even as consensus emerged, there was one substantial sticking point on which there was seemingly no room for compromise: defamation, and other torts relating to privacy and personality that have an impact on the freedom of expression. Within the realm of tort, defamation creates particular issues, not least because it is intimately bound up with fundamental rights – the right of free speech on the one hand, and on the other the right to good name, privacy and personality rights. There is universal recognition of the importance of these principles throughout the European Union, and in the human rights instruments to which the Member States are party, but this is where commonality ends. These rights must be balanced against one another, and there is a variety of views across the EU as to how this balance should be struck. The addition of a transnational element – when the plaintiff and defendant are domiciled in different States, or when the harm is manifest beyond national borders – and the issue becomes ‘an international horizontal conflict between fundamental rights’.

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