Chapter 11 provides a critical analysis of private international law with regard to disputes based on torts between private parties arising from infringements of privacy and data protection rights, and defamation, committed by internet communication. This is a fast-developing and changing area. It compares the private international law rules in Germany and England. The proceedings examined in this chapter are civil litigation, as opposed to judicial review of administrative action (Chapter 7). The chapter covers the harmonized rules under the Brussels Regulation and, in particular, the jurisprudence in respect of the mosaic rule established in Shevill and the rules on civil jurisdiction in the General Data Protection Regulation (GDPR). Additionally, where the Brussels Regulation does not apply, it examines in detail the national rules of jurisdiction in Germany and England, in particular the “conflicts of interest” test in Germany, and, for defamation cases in England, the new test on the most appropriate place under the Defamation Act 2013. Since the rules on applicable law for privacy, defamation, and other personality rights cases are not harmonized in the Rome II Regulation, national law prevails. The rules in Germany and England are analysed—contrasting and comparing the approaches in internet cases. It unravels the extraordinarily complicated and twisted knot of jurisdiction and applicable law in the area of personality rights infringements online and brings some clarity to this area. It concludes with some robust suggestions for improving the rules on jurisdiction and applicable law to provide a better balance of conflicting interests.
Cross-Border Data Protection: Applicable Law and Territorial powers of National Data Protection Supervisors