Drafting a Just and Balanced Conflict-of-Laws Approach under the Revisited Rome II for Violations of Privacy and Personality Rights, and SLAPPs

“… that which is not just seems to be no law at all (mihi lex esse non videtur, quae justa non fuerit)…”[1]

Birgit van Houtert

Assistant Professor of Private International Law, University of Maastricht

1. Introduction

Because of the internet, it is easy to share opinions and information worldwide. However, if you post content online, you will generally not be able to predict on the basis of the law of which state or states you may be sued for violation of privacy or defamation. In addition to the lack of uniform substantive law in this area, this uncertainty arises from the absence of a uniform conflict-of-laws rule governing violations of privacy and personality rights. Within the EU, this uncertainty is further exacerbated by jurisdiction based on the mere accessibility of the website concerned, as well as by the territorially limited mosaic approach to jurisdiction under Article 7(2) Brussels Ibis Regulation, which provides claimants significant scope for forum shopping.[2]

The foregoing facilitates strategic lawsuits against public participation (hereinafter SLAPPs).[3] Public watchdogs, such as journalists, scientists, human rights activists, and NGOs are increasingly being intimidated with lawsuits to silence them from contributing to the public debate.[4] Claims in SLAPPs are often based on defamation or violation of privacy, although there are many other grounds, such as copyright infringement. SLAPP claimants will usually choose to initiate proceedings in the forum that refers to the most favourable law, which will generally provide the lowest level of freedom of expression.[5] With respect to claims based on defamation, this type of forum shopping has been referred to as “libel tourism”.[6]

In contrast to usual tort cases, violations of privacy and personality rights often concern a conflict with human rights, namely the right to freedom of expression and the right to information. States differ in striking a balance between these rights.[7] Uncertainty as to the law of which state or states will apply may have a chilling effect on the exercise of the right to freedom of expression, and may even lead to certain content being restricted in specific jurisdictions.[8]

Despite several proposals by the European Commission (hereinafter EC) advocating an EU conflict-of-laws approach to violations of privacy and personality rights,[9] the Member States were unable to reach a consensus. Therefore, Article 1(2)(g) Rome II Regulation states that non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation, are excluded from the scope of this Regulation.[10]

On 31 January 2025, the EC published its report on the application of Rome II.[11] Based on the obligation in the review clause of Article 30(2) Rome II, several comparative studies on the applicable law related to non-contractual obligations arising out of violations of privacy and personality rights were carried out, namely the 2009 Study by Mainstrat[12] and the 2021 Rome II Study by the British Institute of International and Comparative Law and Civic Consulting (BIICL)[13]. These studies show that the exclusion in Article 1(2)(g) Rome II is problematic, particularly given the diverging conflict-of-laws approaches among Member States. The EC’s report states that there is a need for a uniform EU conflict-of-laws rule to improve alignment with Brussels Ibis, reduce forum shopping, enhance legal certainty, and address the rising issue of SLAPPs.[14]

In 2021, the EP has already urged to amend Rome II in order to protect SLAPP-targets, which is necessary to strengthen democracy, media freedom and pluralism in the EU.[15] Yet, the Anti-SLAPP Directive (EU) 2024/1069 that came into force on 6 May 2024 does not provide a provision on the applicable law regarding violations of privacy and personality rights.[16]

This paper will focus on drafting a just and balanced conflict-of-laws approach under the revisited Rome II for violations of privacy and personality rights, and SLAPPs. Various scholars have proposed a uniform conflict-of-laws rule under the revisited Rome II for violations of privacy and personality rights, seeking to comply with PIL principles of predictability and proximity, and to strike a balance between the interests involved.[17] Furthermore, two institutional research projects conducted under the Institut de droit international and the International Law Assocation (ILA) have proposed conflict-of-laws approaches regarding violations of privacy and personality rights combined with jurisdictional rules.[18] In this paper, the drafting of an EU conflict-of-laws rule regarding such violations will be based on the current framework concerning jurisdiction under the Brussels Ibis Regulation.

While taking into account the principles underlying Rome II, this paper differs from earlier proposals in that it attempts to draft a just and balanced conflict-of-laws approach by exploring in particular the concept of justice from a perspective of private international law, philosophy, and human rights. While justice is “the law’s ultimate ‘value’”, there is no universal consensus on what justice means in choice of law.[19] The final aim of this paper is to propose a just conflict-of-laws approach that balances the interests of victims and alleged infringers, including SLAPP-targets, as well as the public to receive information on matters of public interest, which is crucial in democratic societies. In drafting this approach, account will be taken of the current global problems of hate speech, disinformation and SLAPPs, which are rising worldwide.

This paper will begin to set out the objectives of predictability, justice, and interest balancing as laid down in Rome II.[20] Subsequently, two views in private international law (hereinafter PIL) concerning the concept of justice, namely conflict justice and material justice, will be outlined. In drafting a conflict-of-laws approach under the revisited Rome II for violations of privacy and personality rights, the following paragraphs will further examine the concept of justice by drawing on conceptions and principles from philosophy in the context of PIL. Various national conflict-of-laws approaches of Member States, as well as proposals by the EC, EP, and several scholars will be considered. This paper will also take into account the approach established by the European Court of Human Rights (hereinafer ECtHR) with respect to conflicts between the right to freedom of expression, on the one hand, and the right to reputation and the right to privacy, on the other hand. Furthermore, the issue of protecting SLAPP targets by means of a EU conflict-of-laws approach for violations of privacy and personality rights will be addressed. Finally, this paper will propose a just and balanced conflict-of-laws approach under the revisited Rome II for violations of privacy and personality rights, and SLAPPs.

2. The objectives underlying Rome II

When drafting a conflict-of-laws rule under the revisited Rome II, it is in particular important to consider the objectives of Rome II. Recital 14 of Rome II refers to essential objectives of conflict-of-laws rules namely to provide legal certainty and justice in individual cases. To achieve justice, Rome II refers to a flexible framework of conflict-of-laws rules, including in certain provisions “an ‘escape clause’ which allows a departure from these rules where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with another country”[21]. However, Rome II does not define the concept of justice. As indicated in the introduction, there is no universal consensus on what justice means in choice of law.[22] In the context of drafting a just and balanced conflict-of-laws approach for violations of privacy and personality rights under the revisited Rome II, this paper will explore the concept of justice by drawing on principles and perspectives from PIL, philosophy, and human rights.

Recital 16 of Rome II stipulates that conflict-of-laws rules should also “ensure a reasonable balance between the interests of the person claimed to be liable and the person who has sustained damage”. While the place where the damage directly occurs generally strikes a fair balances between the parties,[23] Rome II acknowledges the need that “specific rules should be laid down for special torts/delicts where the general rule does not allow a reasonable balance to be struck between the interests at stake”.[24] However, Rome II provides no guidance on how to determine and balance these interests.[25]

In drafting a just and balanced conflict-of-laws rule for violations of personality rights and privacy, it is therefore important to identify and balance the relevant interests involved. It is through their interests that individuals are engaged by reasons of justice.[26] From a philosophical perspective, “the reasons relevant to justice are reasons governing distributions of benefits and burdens insofar as these are allocable amongst persons”.[27] Paragraph 4 of this paper will therefore focus on this concept of distributive justice in drafting a conflict-of-laws approach for violations of personality rights and privacy, and SLAPPs. But first, the next paragraph will set out two views of justice in PIL, namely conflicts justice and material justice, which differ in their understanding of how justice should be achieved through conflict-of-laws rules. Their main divergence concerns which and whose interests these rules should take into account, and how those interests should be assessed in order to achieve justice.

3. Two PIL views of justice: conflicts justice and material justice

Scholars of PIL have always been occupied with issues of “(transnational) justice”.[28] According to the literature on conflict of laws, two approaches to justice are distinguished: conflicts justice and material justice.[29]

3.1 Conflicts justice

In view of conflicts justice, conflict-of-laws rules should refer to “the law of the proper state” that means the state with which the legal relationship is geographically most closely connected, namely the state where it has its seat, ‘Sitz’.[30] This view entails predictability, which is in line with one of the core aims of justice according to legal philosophy, as will be discussed in paragraph 5.1. In addition, the geographically closest connection will generally ensure proximity between the applicable law and the dispute, which facilitates the sound administration of justice. The principle of sound administration of justice concerns a principle of civil justice,[31] which is often used in EU PIL.

The traditional Sitz-based view of PIL found its first expression in the work of the well-known scholar Friedrich Carl von Savigny.[32] Savigny reasoned that conflict-of-laws rules should be neutral and blindfolded; they may refer to the law of any state.[33] Conflicts justice does not consider the substantive outcome as a result of the applicable law.[34] According to Savigny, the “specific ‘justice’” of PIL lies in “the harmony of uniformity of results”.[35]

Continental European PIL traditionally adheres to Savigny’s conflict justice-based approach.[36] Nonetheless, it has been argued that “the interests and ideas of justice, essential for answering the question to which legal system the closest connection exists, have changed, in some instances fundamentally, since Savigny’s day”.[37] Furthermore, as illustrated by the special conflict-of-laws rules in Articles 5 to 9 included of Rome II, “substantive ideas of justice” are implemented in EU PIL.[38]

While the groundwork of conflicts justice was laid by Savigny, the term ‘conflicts justice’ is generally attributed to Gerhard Kegel.[39] Kegel argued that the “justice we are seeking in private international law demands an evaluation of interests…”.[40] Kegel aimed to standardise the Savigny’s ‘closest connection’ criterion by prescribing the evaluation of the following three types of interests.[41] First, the interests of the parties that means the abstract interests of the parties who are directly affected.[42] In view of the ‘Parteiinteressen’, connecting factors should point to the legal system most closely linked to them, such as nationality or domicile.[43] Second, the interests of the community, ‘Verkehrsinteressen’ that are affected by the issue of PIL. In view of these interests, connecting factors should ensure legal certainty and predictability.[44] Third, the interests of the legal order, ‘Ordnungsinteressen,’ require rules of PIL to avoid gaps and contradictions to facilitate “substantive uniformity (homogeneinty) of result”.[45] According to Kegel, the evalution of these interests concerns only “the application of a system of law as such and not the content of its rules”[46].

With respect to tort cases, conflicts justice-based theories have traditionally favoured the connecting factor ‘the state where the harmful event occurred’. This connecting factor meets the interests of the parties, since they can anticipate the application of that state’s law, and the interests of the community concerned, namely the interest of the state in ensuring that persons engaging in tortious conduct within its territory comply with its laws.[47] However, if the tortious act and the injury occurred in different states, such as online violations of personality rights and privacy, conflicts justice-based theories have acknowledged that the interests of the parties as well as the communities involved will diverge.[48] With respect to these cases, Banu pointed out that “material-justice considerations can serve as a tiebreaker”.[49] In view of the concept of distributive justice, paragraph 4.2 will focus on the concrete interests of the parties and the communities, including substantive considerations, in drafting a conflict-of-laws approach for violations of personality rights and privacy, and SLAPPs.

3.2 Material justice

Based on the view of material justice, conflict-of-laws rules should always refer to “the law that will produce the proper substantive result”.[50] The concept of material justice emerged from the conflict-of-laws revolution in the United States of America (hereinafter U.S.), which began with the seminal 1963 tort case of Babcock v. Jackson.[51] In the aftermath of this decision, the courts of many U.S. states abandoned the lex loci delicti rule, which referred to the law of the place where the tort was committed as the governing law.[52] Courts have adopted various flexible conflict-of-laws approaches drawing on material justice-based theories developed by scholars, such as the governmental interest analysis and the better-law approach.[53] To determine the applicable law, these approaches analyse competing policy interests of the states involved.

Section 6 of the Second Restatement, reflecting the prevailing case law of courts of the U.S. states, likewise embodies this flexible, state-centred approach for the applicable law in multistate tort cases, such as defamation and violation of privacy. This provision provides a list of policies and other factors that refer to the law of the state that has “’the most significant relationship’ to the parties and the dispute”.[54] According to Section 150(2) and (3) of the Second Restatement, this relationship is “usually” the state where the natural or legal person that claims to be defamed was domiciled or had its principal place of business.

In multistate cases involving alleged violations of personality rights and privacy, the law of a foreign state may favour the protection of the claimant’s reputation or privacy, whereas the law of a U.S. state may prioritise the protection of the defendant’s interest of freedom of expression.[55] In light of the First Amendment of the U.S. Constitution, courts of the U.S. states will generally favour the law that provides the highest protection for freedom of speech.[56] However, with regard to the protection of SLAPP targets, a recent research shows considerable variation among U.S. states, with some adopting robust anti-SLAPP legislation and others providing limited or no protection,[57] thereby resulting in significant unpredictability as to the applicable law in multistate SLAPPs.

Critics argue that state policy-analysis based approaches often result in the application of the law of the forum state, the lex fori, and do not provide predictability.[58] In view of the philosophical principles of predictability and equality, which will be discussed later in this paper, a flexibile policy interests-based conflict of laws approach under the revisited Rome II would not be a just approach.[59]

Although Europe has not made the same shift toward material justice as the U.S.,[60] European countries have often adopted deviations from Savigny’s traditional method by using open-ended connecting factors, such as the closer connection.[61] In EU PIL there generally exists no strict choice between conflicts justice and material justice.[62] Substantive values, policies, and outcomes increasingly influences EU PIL, as illustrated by the special choice-of-laws rules that protect certain parties and values.[63] With respect to online violations of personality rights and privacy, the CJEU’s case law provides protection to the interests of victims by adopting a broad jurisdictional approach under Article 7(2) Brussels Ibis.[64] The PIL provisions of the Anti-SLAPP Directive, protecting SLAPP targets in cases of alleged violations of personality rights and privacy brought in third-country SLAPP proceedings, aim to safeguard democracy and the right to freedom of expression and information within the EU.[65] This paper will show that violations of personality rights and privacy may involve diverging interests and substantive policies.

According to Symeonides, “it is a question of when, how and how much the desideratum of material justice should temper the search for conflicts justice”.[66] Banu argued that conflicts and material-justice theories are even complementary and “their different insights work in tandem to secure justice for cross-border private matters”.[67] This paper will examine whose and which interests should be considered under the revisited Rome II for violations of privacy and personality rights, and SLAPPs. Therefore, the following paragraphs will draw on general concepts and principles of philosophy, including considerations of conflicts justice and material justice.

4. Corrective justice and distributive justice

While conflict-of-laws rules have rarely been discussed in the context of corrective and distributive justice,[68] these concepts of justice are frequently used to achieve justice in tort cases by means of private law.[69] In philosophy, the concepts of distributive justice and corrective justice are often discussed together, although “they are, in an essential sense, very different forms of justice”.[70] In the context of tort law, corrective justice relates to the phase of restoring justice between the tortfeasor and the victim by means of compensation and/or rectification.[71] Scholars are divided on whether conflict-of-laws rules concern corrective justice.[72] The concept of corrective justice mainly relates to the application of the conflict-of-law rule in the relationship between the parties after the wrongful act has occurred. As will be explained in paragraph 6 of this paper, a SLAPP case may nonetheless involve two victims that both require restoration.

To facilitate restoring the relationship between parties by means of a conflict-of-laws rule, loss-distribution based connecting factors are preferred over conduct-regulation based connecting factors. Unlike contacts of conduct-regulation rules, loss-distribution rules are “not necessarily territorially oriented”, such as places of conduct and injury, but may include personal contacts, such as the parties’ domiciles.[73] In view of the main aim of corrective justice, that means the restoration of the relationship between the parties, conflict-of-laws rules do not need to be based on the closest geographical connection as required by conflicts justice[74]. Material justice-based approaches provide courts leeway to apply the law of the state that compensates the victim.

Distributive justice concerns the allocation to all members of a society of burdens and benefits; not only of economic benefits, such as income and wealth, but also of opportunities and social goods such as security, clean environment and welfare.[75] Distributive justice traditionally focuses on the place of the plaintiff and the defendant in the society,[76] that is, the state in which they reside. Yet, philosophical dialogues increasingly concern distributive justice at a global level, referred to as international distributive justice.[77] The latter type of justice meets the cross-border element of conflicts of laws. As will be demonstrated in the next paragraph, conflict-of-laws rules for violations of personality rights and privacy could be regarded as an instrument to allocate benefits and burdens among members of states, including the potential parties involved.[78]

Distributive justice concerns in particular issues such as who is entitled to a certain benefit, “whose and which interests should be protected by the law” and “to what extent”.[79] As indicated in paragraph 2 of this paper, these issues are also relevant in drafting a just conflict-of-laws approach for violations of personality rights and privacy and SLAPPs.

4.1 Benefits and burdens related to a conflict-of-laws rule for violations of privacy, personality rights, and SLAPPs

A conflict-of-laws rule may, in practice, confer benefits on a party, for instance, by enabling the application of the most favorable substantive law or by allowing the party to benefit from lower procedural costs where matters are governed by the lex fori. With respect to violations of personality rights and privacy, the victim’s place of habitual residence or centre of interests as connecting factor will generally benefit potential victims, as it designates the law with which the victim is most familiar and therefore usually meets the victim’s expectations. If the victim’s centre of interests is located in a EU Member State, it also constitutes a jurisdictional ground under Article 7(2) Brussels Ibis.[80] The use of the victim’s centre of interests as connecting factor therefore enables Gleichlauf, between jurisdiction and applicable law,[81] which reduces the costs and duration of proceedings for victims.

However, the victim’s centre of interests as a connecting factor will generally constitute a burden for potential defendants, namely alleged infringers, including SLAPP targets, since it may lead to the application of a law that provides a lower level of protection to the defendant.[82] In addition, it will likely entail higher procedural costs than would arise if the dispute were governed by the law of the state of the defendant’s habitual residence. By contrast, reliance on the defendant’s habitual residence as connecting factor would reverse the allocation of these benefits and burdens between the parties.

Yet, as indicated earlier, distributive justice concerns the allocation of benefits and burdens among all those with an interest in such distributions.[83] This consideration appears to be in line with Rome II that refers to “the interests at stake” and adopted several special conflict-of-laws rules for specific torts that include public interests, such as environmental damage.[84]

Conflict-of-laws rules that provide the victim a choice between the law of several states, as well as the victim’s centre of interests as sole connecting factor, will generally impose a burden on persons who seek to disseminate content, in particular via the Internet. Unpredictability regarding the applicable law, combined with the risk that content lawful in one jurisdiction may be deemed unlawful in others, including the victim’s centre of interests, may give rise to a chilling effect on freedom of expression. The impede of the online flow of information would in particular have a detrimental effect to the public as regards access to information on matters of public interest. However, reliance on the alleged infringer’s place of habitual residence, or place of the harmful event, as connecting factor may also shift the burden onto the public as this connecting factor may facilitate hate speech and the dissemination of disinformation.

From the foregoing analysis, it follows that distributive justice, similarly to conflict justice, includes the interests of the parties and those of all members of the communities involved. However, the theory of international distributive justice includes substantive considerations related to global issues and human rights to determine the interests involved. To include these considerations into the drafing of a conflict-of-laws approach is nonetheless in line with the increasing use of EU PIL as an instrument for broader public policy aims, human rights and global values.[85] The following paragraphs will assess how competing interests should be balanced and whether particular interests should prevail in drafting a just and balanced conflict-of-laws approach for violations of privacy and personality rights.

5. Three principles of just laws

When exploring the concept of justice in the context of choice of laws, the well-known scholar Von Mehren referred to three generally accepted principles of justice: the legal consequences of certain conduct should be foreseeable, like cases must be treated alike, and laws should reflect “values and purposes accepted by the community”.[86] With respect to drafting a just and balanced conflict-of-laws approach under the revisited Rome II for violations of privacy and personality rights and SLAPPs, the following paragraphs will assess these philosophy-based principles in the context of PIL and will include human rights-based considerations.

5.1 Foreseeability of legal consequences

Just law enables that individuals can reasonably expect the legal consequences of their actions.[87] Predictability as regards which law will be applied is the core aim of PIL,[88] especially EU PIL.[89] As indicated in paragraph 3.1, the conflicts justice-based view of PIL is predominantly guided by the principle of predictability. In online tort cases, such as defamation via the internet, scholars have underscored the importance of foreseeability of the applicable law.[90] As pointed out by Kolh, “ignorance of the law is no defence”.[91]

The most obvious way to ensure predictability as regards the applicable law is by concluding a choice of law clause.[92] From a perspective of the concept of distributive justice, “if all those with a stake in a distribution have freely and knowledgeably consented to it, that is a powerful reason for considering the distribution just”.[93] In tort cases, parties—except for commercial parties—are generally only allowed to choose the applicable law after the tortious event has occurred. If violations of privacy and personality rights are included within the scope of the revised Rome II, parties may conclude a choice-of-law agreement in accordance with Article 14(1) Rome II. However, in these type of cases, the parties will generally fail to reach consensus on the applicable law.

Predictability as regards the applicable law for cross-border violations of privacy and personality rights would be enhanced by a single, clear uniform objective connecting factor that refers to the law of the state most closely connected to the tort.[94] The main conflict-of-laws rule laid down in Article 4(1) of Rome II, which refers to the place where the damage occurred, lex loci damni, will generally provide predictability in tort cases. However, this is often not the case in situations involving violations of privacy and personality rights. In particular, in cases where allegedly infringing content is disseminated via the internet, the damage may occur in multiple states in which the content is accessible; this leads to unpredictability regarding which laws may be applied.[95] The problem is amplified by the mosaic-based approach to jurisdiction under Article 7(2) of the Brussels Ibis, as established in the case law by the CJEU.[96] Consequently, alleged infringers, in particular SLAPP targets, may be sued in several EU Member States, possibly on the basis of different applicable national laws. Furthermore, in view of conflicts justice, the lex loci damni approach will not always refer to the law with which the legal relationship is most closely connected.

It has been argued that the targeting, also referred to as directed activity, criterion provides predictability as regards the applicable law with respect to violations of personality rights and privacy.[97] This criterion has in particular been advocated to protect SLAPP targets.[98]

However, it is not always easy to determine whether activities or content are directed to a certain state.[99] Compared to the criterion of subjective intent,[100] the objective intent of the defendant whether its activity was directed to a certain state provides more predictability. In the context of the ‘directed activities’ criterion under Article 17(1)(c) Brussels Ibis, the CJEU enumerated various objective factors.[101] Factors to assess this criterion are, inter alia, the use of a certain language, the content, or the use of geo-blocking technologies[102]. It has been argued that the directed activity criterion establishes a close connection between the applicable law and the facts in cases of defamation.[103] However, where the victim is unknown in the country to which the publication is directed, no harm may have occurred there, rendering the application of the law inconsistent with the proximity principle and ultimately unfounded.[104]

The criterion of directed activity as connecting factor for violations of privacy and personality rights may impede the cross-border flow of information through the use of geo-blocking technologies. This approach may also be misused by directing content to states that refer to the law of states which provide a low protection of privacy or personality rights. The directed activity approach may therefore facilitate hate speech and the misuse of personal data, for instance, by social media platforms or artificial intelligence systems.

Furthermore, international publications are often directed to multiple states.[105] Content disseminated in English through a website with a .com domain name does not appear to target any specific country. Consequently, the directed activity criterion cannot operate autonomously and must be complemented by an alternative connecting factor. In order to favour the media, it has been proposed to refer to the country in which editorial control is exercised.[106] It is, however, debatable whether this connecting factor tilts the balance too strongly in favour of freedom of expression, to the detriment of personality rights, such as the protection of reputation.

In drafting a conflict-of-laws rule for violations of privacy and personality rights under the revisited Rome II, it should be noted that a technology-neutral approach should be preferred as it contributes to greater predictability since infringing content can easily be converted from one format to another and the specific format is therefore irrelevant[107].

5.1.1 Concentrating the applicable law

As argued in the previous paragraph, the lex loci damni rule may entail multiple applicable laws, particularly in cases involving online violations of personality rights and privacy, which yields unpredictability and facilitates SLAPPs. The next subparagraphs will examine various connecting factors that would concentrate the applicable law in cases concerning violations of personality rights and privacy.

5.1.1.1 Lex fori

Several scholars have advocated to adopt the law of the state of the court seised, referred to as the lex fori approach, for violations of privacy and personality rights.[108] The Hungarian Act on PIL provides the victim of violations of personality rights the option to choose the Hungarian law.[109] The coincidance of applicable law and forum tends to yield decisions of higher quality and shortens the duration and lowers the cost of proceedings.[110] In favour of the lex fori approach, it has also been argued that personality rights are significantly shaped by constitutional values.[111]

With respect to defamation, the English conflict-of-laws rule requires liability to be established under both the lex fori and the law of the place of the tort, lex loci delicti.[112] As this double-actionability rule enhances freedom of speech, it has been proposed as possible conflict-of-laws rule for SLAPPs.[113] However, the court’s assessment of this rule may involve substantial costs, thereby undermining its effectiveness in addressing SLAPPs.[114]

Moreover, the lex fori approach causes unpredictability as regards the law of which state or states will apply with respect to violations of personality rights and privacy.[115] Particularly in cases of online violations, the victim may bring proceedings before the courts of multiple Member States on the basis of the mere accessibility of alleged infringing content via the internet.[116] Except for the court of the state of the victim’s centre of interests, the jurisdiction of these courts is territorially limited.[117] Hence, the combination of forum shopping and the lex fori approach would yield a mosaic of applicable laws and facilitates SLAPPs.[118] In cases of online violations of privacy or personality rights, the contact between the forum state and the dispute may be tenuous, which does not facilitate the sound administration of justice. Furthermore, adopting the lex fori approach under the revisited Rome II would not be in accordance with the multilateral-based conflict-of-laws approach in EU PIL, which generally treats the law of states on an equal footing[119].

5.1.1.2 The victim’s habitual residence or ‘centre of interests’

Several scholars[120] and the EC, in its first proposal for Rome II,[121] argued in favour of the victim’s place of habitual residence as the main EU connecting factor for violations of privacy and personality rights. The victim’s habitual residence, or centre of interests, criterion will generally provide more predictability to both parties than the lex loci damni rule.[122] In some cases, the determination of the habitual residence or centre of interests may be difficult, especially for celebrities or digital nomads.[123] Nonetheless, this criterion aligns with the “centre of interests” established by the CJEU under Article 7(2) Brussels Ibis in eDate and Martinez. Recital 7 of Rome II also requires consistency between the interpretation of Rome II and Brussels Ibis. In this line, the Dutch Supreme Court interpreted the lex loci damni rule as the victim’s centre of interest regarding online violations of personality rights or privacy.[124] In cases of online violations of personality rights and privacy, it has also been argued that the victim’s centre of interests is most closely connected with the dispute as this is the place where the victim is known and will therefore sustain most damage to its reputation.[125] The European Group of Private International Law (GEDIP) also proposed to adopt the presumption that the state with which the case of violation of privacy or personality rights is most closely connected is the state in which the victim is habitually resident.[126]

However, media actors criticised this connecting factor as it may give rise to a situation in which the courts of the state in which the publisher is established are required to rule against the publisher even where the publication fully complied with the legal standards of the publisher’s state of establishment, and where no copies of the publication were distributed in the state of the victim’s residence or centre of interests.[127] According to media actors, this connecting factor therefore fails to provide adequate protection for publishers and may have a chilling effect on freedom of expression.[128]

To provide more predictability, several scholars advocated to combine the ‘victim’s centre of interests’ criterion with the requirement that the alleged infringing content or activity must be (principally) directed to the state of the victim’s centre of interest.[129] However, as argued in paragraph 5.1, it may be unclear whether the alleged infringing content is directed to any particular state.

Some Member States that have adopted a special conflict-of-laws approach for violations of personality rights and privacy grant the victim a choice among several connecting factors, such as the place of the harmful event, the place where the damage occurred, the alleged infringer’s habitual residence, and the victim’s habitual residence or centre of interests.[130] Although this favor laesi approach concentrates the applicable law in cases involving violations of personality rights and privacy, this approach causes unpredictability for (potential) infringers. Hence, it appears to tilt the balance too strongly to the detriment of the right to freedom of expression.

5.1.1.3 The state of the most significant element(s) of the damage

With respect to violations of personality rights and privacy, the EP advocated as main connecting factor under Rome II “the country in which the most significant element or elements of the loss or damage occur or are likely to occur".[131] Although this factor concentrates the applicable law, it does not always provide predictablity and may require an extensive assessment of the merits. This country is in particular difficult to determine when the alleged infringing content contributes to the global debate, such as academic publications on international law.[132]

However, if the violation is caused by the publication of printed matter or by a broadcast, the EP states that the state of the most significant element(s) of the damage is deemed to be “the country to which the publication or broadcasting service is principally directed or, if this is not apparent, the country in which editorial control is exercised”. [133] Although the EP’s proposal would protect the press and SLAPP targets, it may be questioned whether this approach would tilt the balance too much in favour of freedom of expression to the detriment of the protection of privacy and personality rights. The EP’s proposal also included an escape clause based on the unforseeability of the damage, as will be set out in the paragraph 5.1.2.2.[134]

5.1.1.4 The place of the harmful event

The place where the event that gave rise to the damage occurred, loci delicti commissi, as connecting factor also concentrates the applicable law.[135] In the majority of the Member States, the general conflict-of-laws rule for torts refers to the loci delicti commissi.[136] However, particular in cases of online violations of personality rights and privacy, this factor is prone to different interpretations, such as the place of publication, uploading, or editing.[137] Nonetheless, a specific place could be indicated as the place of the harmful event. With respect to online violations of trademarks, the CJEU aimed to provide predictability by adopting the place where the server is located as the place of the harmful event.[138] However, the loci delicti commissi as a connecting factor enables infringers who disseminate disinformation, hate speech, or misuse personal data to initiate violations of privacy or personality rights in states that provide less protection to such rights.

5.1.1.5 The defendant’s habitual residence

The place of the alleged infringer’s habitual residence is less susceptible to abuse than the place of the harmful event. Furthermore, this connecting factor provides greater predictability,[139] even though these places may coincide. However, reliance on the alleged infringer’s place of residence or the place of the harmful event would tip the balance a priori to the detriment of the victim.[140] Furthermore, from the perspective of conflicts justice, it could be argued that the centre of gravity, Sitz, of violations of personality rights and privacy lies where the damage materialises, namely where the victim has its residence or where the public comes into contact with the infringing content.

5.1.1.6 The state which is most closely connected

A few scholars proposed to adopt as connecting factor the state with which the tort of a violation of a personality right or privacy is most closely connected.[141] According to Hartley, “the tort should be regarded as having been committed in one place only — the place with which the relevant elements, taken as a whole, are most closely connected”.[142] In this line, Kuipers also argued that the closest connection should be determined on the basis of “the particular circumstances of each case”.[143] Kuipers refers to relevant criteria such as the publisher’s and victim’s place of establishment, where most of the damage occurred, where the publication was primarily distributed, its international or local nature, language and intended audience, and, in cases of online defamation, the website’s domain name.[144] These criteria should be adopted under the revised Rome II in a sliding scale; the relevance of the victim’s habitual residence increases with the foreseeability of applying that law, whereas the relevance of the publisher’s establishment increases as circulation in the victim’s residence decreases.[145]

The ‘closest connection’ criterion, as connecting factor, grants considerable discretion to courts to achieve justice in individual cases. However, when employed as the main connecting factor, this flexible approach lacks sufficient predictability.

5.1.2 Escape clauses

As argued by Svantesson, “in constructing private international law rules we must carefully evaluate and balance the need for predictability and flexibility”.[146] In this vein, Rome II recognises that both legal certainty and the pursuit of justice in individual cases constitute essential elements of an area of justice.[147]

Predictability is best served by a clear and rigid connecting factor that leaves little leeway for judicial discretion. Flexible connecting factors may, however, be desirable in order to meet the expectations of the parties and to achieve justice in individual cases. As indicated in Rome II and by scholars, escape clauses provide flexibility to courts enabling them to reach a just result in a particular case by applying the law that has a closer and more meaningful link to the case than the generally applicable law.[148] The escape clauses, as discussed in the following two subparagraphs, will be used in proposing a just and balanced conflict-of-laws approach in paragraph 7 of this paper.

5.1.2.1 Manifestly closer connected to another country

Article 4(3) Rome II provides that the law of a state manifestly more closely connected to the tort should apply. This type of escape clause is also adopted in PIL codifications of several states.[149] It enables courts to apply “the law that best meets the proximity criterion”.[150] This flexibility nonetheless entails an obligation on the court to assess all the circumstances of the case, which together must be sufficiently weighty to justify the application of the law more closely connected with the tort.[151] This assessment relies not only on geographical factors, such as the place of (common) domicile of the parties, but also on personal, situative, and legal connecting factors.[152]

As indicated in Article 4(3) Rome II, a legal factor concerns a pre-existing contractual relationship between the parties that is closely connected to the tort. With respect to violations of privacy and personality rights committed by a user against another user of a digital platform, the law governing the relationship between the platform and its users could be taken into account.[153] In cases of alleged violations of personal data of an employee by an employer, the law of the state applicable on the basis of the contractual relationship between the employee and employer could be considered as manifestly closer connected.

While the parties’ subjective expectations should not be assessed, objectifiable legitimate expectations may be considered.[154] In view of the important role played by the media in the society, the EP argued that “a manifestly closer connection with a particular country may be deemed to exist, having regard to factors such as the country to which a publication or broadcast is principally directed, the language of the publication or broadcast, or the sales or audience size in a given country as a proportion of total sales or audience size”.[155] However, as argued in the paragraph 5.1, the use of targeting- or directed-based approaches may not always be justified, for instance, in cases of hate speech. Yet, the manifesly closer escape clause requires the court to take all the circumstances of the case into consideration, which provides leeway to make a just decision. Furthermore, it has been argued that “neither Art. 4(3) nor any other provision of the Rome II forbids to recognise the substantive solutions as circumstances that for an overall assessment can be taken into account”.[156]

5.1.2.2 Unforeseeability of the damage

As mentioned in paragraph 5.1.1.3., the EP proposed as main connecting factor the country in which the most significant element(s) of the loss or damage occur or are likely to occur. By way of an escape clause, the EP provided that if the defendant “could not reasonably have foreseen substantial consequences of his or her act occurring” in that country, the law of the country in which the defendant is habitually resident should apply.[157]

With respect to violations of personality rights or privacy, several EU Member States also adopted an escape clause based on the unforeseeability of the damage occurring in the state as referred to by the main connecting factor.[158] The foreseeability of the place where damage occurs should be determined on the basis of all facts of the case.[159] The court therefore appears to have broader discretion to determine whether the unforeseeability of the damage clause was satisfied than under the directed activity criterion.

This type of escape clause serves to safeguard the right to freedom of expression,[160] and offers protection to SLAPP targets. However, it may be questioned whether the escape clause would tilt the balance too much in favour of freedom of expression to the detriment of the protection of privacy and personality rights. In view of principles of justice and human rights-based considerations, the following paragraphs will address this issue.

5.2 Equality

Justice requires laws to treat like cases alike.[161] Each EU Member State currently applies its own connecting factors for determining the applicable law in cases involving violations of privacy and personality rights; these factors diverge across Member States.[162] From an EU perspective, same cases are therefore not treated alike; a uniform conflict-of-laws rule for violations of privacy and personality rights under the revised Rome II would in this sense provide justice.

The principle of equality appears to be in accordance with the PIL concept of conflicts justice. First of all, from a perspective of conflicts justice, national laws are regarded as equal.[163] As proclaimed by Savigny, conflict-of-laws rules are neutral, multilateral and blindfolded; they may refer to the law of any state as long as it is the state with which the legal relationship is geographically most closely connected.[164] Laws are not judged by their substantive content; in contrast to material justice-based conflict-of-laws approaches, there is no “better” law.[165] With respect to torts in general, Savigny nonetheless referred to the law of the forum state, the lex fori, because of the proximity to criminal law.[166] However, the conflict-of-laws rules in Rome II mainly have a multilateral character and universal scope; as stated in Article 3 Rome II, “any law specified by the Regulation shall be applied whether or not it is the law of a Member States”.[167]

Furthermore, conflicts justice theories in principle have equal regard for persons.[168] Yet, from an egalitarian perspective, equality does not mean that each person must be treated identically; rather, it means that each person is treated as an equal.[169] As not all persons are in the same position, equal treatment will be inadequate as it perpetuate inequalities.[170] Positive discrimination is regarded as a key element of “equitable treatment”, which “consist in dealing unequally with someone in order to remedy an initial situational disadvantage”.[171]

The distribution of allocable benefits and burdens, as discussed in paragraph 4, is based on equal concern and respect for all those with an interest in those distributions.[172] Yet, according to the traditional view of Aristotle, “the type of equality embedded in distributive justice norms is ‘proportional equality’.”[173] Views diverge as regards the factors that may justify an unequal distribution.[174] Distributions may be unequal, for instance, if there are differences of merits between persons.[175]

Among the considerations that bear on the distribution of allocable benefits and burdens, Mokal pointed out “five [widely invoked] types of reasons that matter to justice: consent, expectation, desert, need, and prior entitlement”.[176] In drafting a just conflict-of-laws approach for violations of privacy and personality rights, paragraph 5.1 includes the reason of expectation, which is integral to the core aim of PIL, and to consent as reason to justify the distribution of benefits and burdens if the parties have agreed on a choice of law clause. The reason of need can also be identified in European PIL, namely in the consideration that certain categories of persons need special protection in conflict-of-laws rules in order to achieve a substantive fair result[177]. EU PIL protects certain economically ‘weaker’ parties such as consumers, policyholders, and employees.[178] These rules are classified as “result-oriented” choice-of-law rules, reflecting considerations of material justice, and are laid enshrined in various European codifications.[179]

Several Member States adopted special conflict-of-laws rules for violations of personality rights and/ or privacy that favour victims by allowing them to choose between different laws.[180] Bulgaria and Lithuania have nonetheless adopted this favor laesi approach exclusively with regard to alleged violations of personality rights arising from the mass media, including the press, radio, and television.[181] The CJEU has also provided special protection to alleged victims of online violations of personality rights in the eDate and Martinez ruling. The CJEU reasoned that based on the serious harm caused by the worldwide dissemination of infringing online content, the court of the place where the victim has its centre of interests has jurisdiction under Article 7(2) Brussels Ibis to rule on the entire damage.[182]

The EP’s conflict-of-laws proposals significantly favour the press and media.[183] As indicated in paragraph 5.1.2.2, several EU Member States conflict-of-laws rules also appear to take into account the interests of the media by providing an escape clause in case of unforeseeability of the damage. Furthermore, a trend has emerged that some alleged victims of violations of privacy and personality rights are even economically strong parties who initiate abusive proceedings to silence persons who contribute to the public debate, referred to as SLAPP-targets. In view of the EU Anti-SLAPP Directive, SLAPP-targets are regarded as weaker parties that should receive special protection.[184] The following paragraphs will further examine whether, and for which categories of persons or values, special protection is required by means of a conflict-of-laws rule under the revisited Rome II in cases concerning violations of personality rights and privacy.

5.3 Common values

In view of a generally accepted principle of justice, laws should reflect “values and purposes accepted by the community”.[185] This view resonates with Savigny’s referral to the ‘Volksgeist”, that means the spirit of the nation, as the original source of law in the context of conflict of laws.[186] According to Savigny, the legislator does not create but rather discover the existing law, which lies beyond the sphere of state authority and is rooted in the overarching “Volksgeist”.[187] He advocated that the issue of conflict of laws should be elevated to a supranational level.[188] His appeal to the “völkerrechtliche Gemeinschaft” implies that the subject of conflict of laws ought to be placed within the framework of an internationalist mindset, and that conflict-of-law provisions must meet the requirements set by the ever-growing community of nations.[189] Savigny’s approach presumes “an idea of universality of the basic private-law concepts (contract, tort, etc.)”.[190]

To enhance predictability, forster the international harmony of decisions, and facilitate the cross-border recognition and enforcement of judgments, it would be desirable to design a conflict-of-law rule for violations of privacy and personality rights based on shared transnational values. However, such consensus is currently lacking.[191] Matters relating to privacy, defamation, and personality rights are excluded from the scope of PIL instruments. A prominent illustration is the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, which expressly excludes this subject matter in Article 2(1)(k)(l).[192] It has been argued that the difficulty of achieving agreement at the global level is closely connected to the profound divergence between national PIL systems, particularly the contrast between common-law and civil-law traditions. With respect to PIL regarding violations of personality rights and privacy, the divergence is particularly influenced by differences in the prioritisation of values, such as freedom of expression and the protection of reputation and privacy.[193]

What constitutes a just conflict-of-laws rule for one society may not necessarily be so for another, and may even vary for a single society over time.[194] As this paper focuses on drafting a just conflict-of-laws rule under the revisited Rome II for violations of personality rights and privacy, and SLAPPs, common values of the EU Member States on this matter will be considered.

However, as indicated earlier, the conflict-of-laws approach of EU Member States with respect to violations of privacy and personality rights diverge. Most Member States use as connecting factors the place where the damage occurred, loci damni, and/ or the place of the event giving rise to the damage, loci delicti commissi.[195] Nonetheless, the interpretation of these factors vary and is complicated in the context of online violations of privacy and personality rights.[196] As mentioned in the paragraph 5.1.1.2, specific conflict-of-laws rules for violations of privacy and personality rights of several Member States grant the victim a choice between the place of the harmful event and the place where the damage occurred, or the victim’s centre of interests. Several of these states provide to the alleged infringer, or only the media, an unforeseeability of the harm escape clause.[197]

In spite of diverging national conflict-of-laws rules regarding violations of privacy or personality rights, all EU Member States are at a substantive level bound by the Charter of Fundamental Rights of the European Union (hereinafter Charter) and the European Convention on Human Rights (hereinafter ECHR).[198] Both human rights instruments provide protection for personality rights and privacy as laid down in Article 7 Charter and Article 8 ECHR. Violations of these rights often involve a conflict with the right to freedom of expression and the right to information that are laid down Article 11 Charter and Article 10 ECHR. It follows from Article 52(3) Charter that the meaning and scope of corresponding rights are to be determined by also having regard to the case law of the ECtHR.[199] According to the ECtHR’s case law, Articles 8 and 10 ECHR are applicable not only in the relationship between public authorities and private persons, but also in purely private legal relationships, which means these rights have horizontal effect.[200]

When drafting an EU conflict-of-laws rule for violations of privacy and personality rights, it is nonetheless important to point out that at substantive level not all violations involve a conflict with the right to freedom of expression and the right to information. First of all, hate speech is not protected by the right to freedom of expression according to the ECtHR.[201] Furthermore, the non-consensual use of personal data, for instance by social media platforms, constitutes a violation of privacy, which is often unrelated to freedom of expression or the right to information. Combating hate speech and misuse of personal data are nevertheless both policy objectives of the EU and laid down in EU law[202].

5.3.1. The balancing excercise

Adopting the victim’s habitual residence or centre of interests as connecting factor for violations of personality rights and privacy could be regarded as a limitation of the right to freedom of expression and to information, because it may impede persons to exercise these rights, although they are allowed to share the content according to the law of other states. Conversely, adopting the habitual residence of the person disseminating the allegedly infringing content as the connecting factor may limit the protection of privacy and personality rights, particularly where the content is unlawful under the law of the victim’s habitual residence or centre of interests but lawful under the law of the alleged infringer’s habitual residence.

In cases of conflicts between exercising the rights related to privacy and personality, on the one hand, and the right to freedom of expression and to information, on the other hand, one of these rights can under certain requirements be limited by the other right. These requirements are laid down in Articles 8(2) and 10(2) ECHR, and Article 52(1) Charter. First of all, limitations have to be prescribed by law. A uniform conflict-of-laws rule laid down in an EU Regulation would meet the requirement of a limitiation by law. Second, the limitation has to be necessary in a democratic society in the interest of public matters or for the protection of the rights of others. With respect to this proportionality-related condition of necessity, the ECtHR requires a “pressing social need”.[203] Furthermore, the restriction must be proportionate with respect to the legitimate aim pursued.[204] As stated in Article 10(2) ECHR, a restriction may pursue particular public interests, or seek to protect specific rights of others, such as the protection of the reputation. Based on these proportionality-related conditions, the balancing act thus not only concerns the conflicting rights but also the public interests involved.[205]

Given the ECtHR’s case law, a “fair balance must be struck between the competing interests of the individual and those of the community as a whole”.[206] Considering the interests of both the individual and community aligns with the concept of distributive justice. The principle of proportionality can also be identified in Aristitole’s view of distributive justice that the allocation of benefits and burdens is subject to the principle of proportional equality.[207] The requirement that a limitation must meet a pressing social need is reminiscent of the reason of need that may justify the distribution of benefits and burdens, as set out in paragraph 5.2.

5.3.2 The importance of contributing to the public debate

The Contracting States of the ECHR enjoy a margin of appreciation when balancing conflicting rights, such as the right to private life and the right to freedom of expression, which may vary depending on their legal traditions, social context, and national values.[208] However, according to the ECtHR’s case-law, there is little scope under Article 10(2) ECHR for limitations on freedom of expression regarding a debate on matters of public interest.[209] The ECtHR repeateldy placed significant emphasis on the essential role played by the press in a democratic society as provider of information and ideas on matters of public interest and the public’s right to receive this information.[210] According to the ECtHR’s case law, these providers not only concern journalists who plays a vital role as “public watchdogs” but also other legal and natural persons who contribute to the public debate may enjoy a high level of protection, such as NGOs, human rights defenders, academics, authors of literature, bloggers and even “popular users of the social media”.[211]

In balancing the right to respect for private life and the right to freedom of expression, the ECtHR therefore held that an initial essential criterion is whether the alleged infringing content contributes to a debate of general interest.[212] The ECtHR’s case law provides guidelines on which information concerns public interests in its dissemination. For instance, “articles aimed solely at satisfying the curiosity of a particular readership regarding the details of a person’s private life, however well known that person might be, cannot be deemed to contribute to any debate of general interest to society”.[213]

The ECtHR’s fundamental principle that “public watchdogs play a vital role in democracies to provide information to the public is clearly reflected in EU law. In case of conflicts between the right to the protection of personal data and the right to freedom of expression, Article 85 GDPR explictly provides an exemption in the case of processing personal data for journalistic purposes and the purposes of academic, artistic or literary expression. Member States should adopt law that lays down exemptions and derogations necessary for balancing those fundamental rights.[214] According to recital 153 of the GDPR, the concept of “journalism” must be interpreted broadly based on the importance of the right to freedom of expression and information in every democratic society.

In requests by data subjects to search engine operators for the removal of name-based search results, the CJEU held in Google Spain and Google that Articles 7 and 8 of the Charter generally prevail.[215] Nevertheless, this presumption may be overridden where the public’s interest in access to the information constitutes a decisive factor, having regard to the nature and sensitivity of the information and the data subject’s role in public life.[216]

In the EU PIL ruling Real Madrid, the CJEU also relied on the ECtHR’s reasoning of the vital role of public watchdogs in democratic societies to justify that Member State courts must refuse the recognition and enforcement of a Member State judgment on the basis of Article 45(1)(a) Brussels Ibis where such enforcement would give rise to a manifest breach of the freedom of expression of the press, as protected by Article 11 of the Charter.[217] Furthermore, the Anti-SLAPP Directive seeks to protect natural and legal persons who engage in public participation on matters of public interest.[218] SLAPP targets include members of the press and media as well as other persons, such as human rights defenders, civil society organisations, NGOs, trade unions, artists, researchers and academics.[219] The Directive’s safeguards even extend to persons who support public participation on matters of public interest, such as lawyers, internet providers, or publishing houses, in the event they face proceedings as a result of such support.[220]

While the Anti-SLAPP Directive provides procedural safeguards, including PIL provisions, it does not contain a conflict-of-laws rule. As argued by scholars and the EP, it is highly desirable that SLAPP-targets also receive protection by a uniform EU conflict-of-laws rule.[221] The following paragraph will elaborate on drafting an EU conflict-of-laws approach for violations of personality rights and privacy, with a view to safeguarding potential SLAPP targets.

6. Drafting an EU conflict-of-laws approach for violations of personality rights and privacy that protects (potential) SLAPP targets[222]

As indicated in the introduction, the lack of a uniform EU conflict-of-laws rule governing violations of personality rights and privacy may give rise to a chilling effect on freedom of expression. Certain conflict-of-laws rules, however, may facilitate SLAPPs, as discussed in paragraph 5.1.1. With respect to drafting a uniform EU conflict-of-laws rule, the common EU value that persons who provide content or engage in activities related to matters of public interest play a vital role in democracies justifies a conflicts-of-laws approach that protects potential SLAPP targets.

Scholars argued that a specific conflict-of-laws rule in favour of SLAPP targets would require to establish clear and carefully formulated criteria to identify those eligible for anti-SLAPP protection.[223] Yet, the Anti-SLAPP Directive provides criteria to identify (potential) SLAPP targets. SLAPP-targets are defined as natural or legal persons that engage in public participation and against whom manifestly unfounded claims or abusive court proceedings in civil matters are brought with the main purpose to prevention, restriction or penalisation of public participation.[224] Pursuant to Article 4(2) of the Anti-SLAPP Directive, “public participation” denotes the exercise of fundamental freedoms, such as the freedom of expression and information, through the making of any statement or activity relating to matters of public interest. This provision also defines the concept of “matter of public interest” as “any matter which affects the public to such an extent that the public may legitimately take an interest in it”, such as “fundamental rights, public health, environment, allegations of corruption or fraud, and “activities aimed at protecting the values enshrined in Article 2 of the Treaty on European Union, including the protection of democratic processes against undue interference, in particular by fighting disinformation”.[225]

SLAPP targets may request the early dismissal of a case on the ground that the claim is manifestly ungrounded, as stipulated in Article 11 of the Anti-SLAPP Directive. At first glance, the early dismissal mechanism appears to have a procedural character, governed by the law of the forum, lex fori[226]. However, according to the Anti-SLAPP Directive, courts must assess on the basis of their national law whether a claim is manifestly unfounded, which “should be a decision on the merits after appropriate examination”.[227] With respect to claims based on violations of privacy and personality rights, this examination of the merits generally requires courts to assess the claim under the substantive law. Provided that “national law” in Article 11 of the Anti-SLAPP Directive includes conflict-of-laws rules, the applicable law must be determined in accordance with those rules.

Divergences among conflict-of-laws rules incentivize forum shopping, an effect amplified by the broad jurisdictional approach of Article 7(2) of the Brussels Ibis in cases involving online violations of personality rights.[228] For claims based on violations of privacy and personality rights, this problem could be alleviated by a uniform EU conflict-of-laws rule governing such violations.

If there is no manifestly unfounded claim, or the request for early dismissal fails, proceedings may nevertheless constitute a SLAPP under the Anti-SLAPP Directive if they constitute to abusive court proceedings intended to silence persons and deter them from contributing to debate on matters of public interest.[229] According to the Directive, a SLAPP may even exist in cases of partially unfounded claims.[230] When drafting an EU conflict-of-laws approach for violations of personality rights and privacy, and SLAPPs, it is therefore important to take into account that there are also cases in which both the SLAPP claimant and the SLAPP target may be regarded as victims.

7. A proposal for a just and balanced conflict-of-laws approach under the revisited Rome II for violations of privacy and personality rights, and SLAPPs

In the context of drafting a just and balanced conflict-of-laws approach for violations of personality rights and privacy, and SLAPPs, this paper assessed various conceptions and principles of justice. The following proposal will draw on this assessment.

Among the various connecting factors, the state where either the victim or the alleged infringer has their habitual residence provides the most predictability as main connecting factor.[231] However, both connecting factors differ in terms of the distribution of benefits and burdens between the interests of the parties and the interests of communities involved, as set out in paragraph 4.1.

In drafting a just and balanced conflict-of-laws approach for violations of privacy and personality rights, this paper therefore aimed to identify which interests should prevail, if any. Banu argued that “the staple insight of conflicts-justice theory has been that individuals and communities have interests in the application of one law over another regardless of its content, although the interests in the application of a law as such may be derived from assumptions about the substantive interests underlying large categories of private law (torts, contracts, family law, etc.)”.[232] In this context Banu cites Kegel who argued that “the strongest interests supports the application” of a particular law, such as the paramount party interests of the seller and the interests of commerce support the application of the law of the state where the product is purchased.[233]

Viewed from the perspective of conflict justice, all interests involved in the application of the law to cross-border cases concerning violations of privacy and personality rights are in principle equal. However, in light of EU law and human rights obligations, the most compelling substantive interests are those of the members of democratic states in having access to content concerning matters of public interest, and, consequently, the interests of potential SLAPP-targets in disseminating such content.[234] To achieve a just and balanced conflict-of-law approach, the following proposal will therefore distinguish between content and activities that allegedly infringe personality and privacy rights, depending on their contribution to matters of public interest.

7.1 The ‘victim’s centre of interests’ as main connecting factor

Compared to the state where the alleged infringer is habitually resident, the state of the victim’s centre of interests will generally entail a closer connection with the tort involving violations of personality rights and privacy, because it is usually the place where most damage occurs, particularly in case of online violations. However, as indicated earlier, in SLAPP cases, both parties may be victims; the next paragraph will therefore provide an escape clause for SLAPP targets.

The state in which the victim’s centre of interests is located as main connecting factor is preferred over the state of the victim's habitual residence, since victims may have a centre of interests in a state in which they do not habitually reside, where other factors, such as the pursuit of a professional activity, establish a particularly close link[235]. Moreover, in case of victims whose centre of interests is situated in the EU, the ‘centre of interests’ criterion will often enable courts to apply the lex fori which facilitates sound administration of justice.[236] However, there may be situations in which there is a manifestly closer connection to another state, which justifies an escape clause, as will be set out in paragraph 7.3.

The ‘victim’s centre of interests criterion’ serves not only the interests of the victim, but also the interests of communities in combating hate speech, disinformation, and misuse of personal data. Malicious infringers cannot manipulate the applicable law by directing their content to another state. However, the ‘victim’s centre of interests’ criterion can have a deterrent effect at the expense of the exchange of information contributing to matters of public interest, with detrimental implications for the proper functioning of democratic societies.

7.2 The escape clause for allegedly infringing content or conduct relating to matters of public interest

The victim’s centre of interests as main connecting factor for violations of personality rights and privacy may limit the ability of public watchdogs to fulfil their informational role, which constitutes a fundamental value common to the EU. Public watchdogs may hesitate to publish content online by the prospect of being sued on the basis of the law of the state of the victim’s centre of interests, while sharing the same information or ideas on matters of public interest is permitted in other states. Given the pressing societal need in democracies to inform about matters of public interest, the sole victim’s centre of interests as criterion could be considered a disproportionate connecting factor in the cases of content or activities that contribute to matters of public interest.

A specific escape clause should therefore prevent the law of the state of the victim’s centre of interest from being applied if the alleged infringing content or acts concern matters of public interest that were not directed at that state, or if the alleged harm in that state was unforeseeable.[237] This escape clause will also enhance the protection of both potential and actual SLAPP targets. While guidelines on the concept of “matters of public interest” can be derived from the ECtHR’s case law, the interpretation of this concept as laid down in the Anti-SLAPP Directive provides greater predictability.[238] To address the risk of interpretative divergence between EU Member States,[239] it is important that the concept of ‘matters of public interest’ will be interpreted autonomously at EU level.

If the escape clause for allegedly infringing content or conduct relating to matters of public interest is succesfully invoked, the issue raises which law should be applied instead of the law of the state of the victim’s centre of interests. As argued in paragraph 5.1, in addition to the victim’s centre of interests, the defendant’s habitual residence provides the most predictability. Where the plaintiff has its centre of interests outside the EU, this connecting factor will often entail Gleichlauf as the defendant will generally be sued in the courts of the Member State of its domicile, which has full jurisdiction to assess the case. Furthermore, the law of the state in which publishers and broadcasters have their habitual residence is generally also applicable to the right of reply, or other preventive or prohibitory injunctions regarding content involving alleged violations of privacy or personality rights.[240]

The state of the defendant habitual residence as connecting factor is less prone to misuse than the state where the infringing act is committed.[241] This is relevant because, although the alleged infringing content prima facie contributes to public debate on matters of public interest, it may, upon closer examination, nonetheless be characterised as disinformation.

In line with the Rome II Study and the 2025 EC report,[242] the proposed conflict-of-laws approach does not include a separate conflict-of-laws rule for SLAPPs. However, if no political consensus could be reached on this proposal under the revised Rome II, the proposed escape clause for allegedly infringing content or conduct relating to matters of public interest could be applied as a corrective to the law designated by national conflict-of-laws rules in SLAPP cases falling within the scope of the Anti-SLAPP Directive. In case that this clause is successfully invoked, the law of the habitual residence of the SLAPP target shall apply. However, the ‘manifestly closer connection’ escape clause, as will be set out in the next paragraph, could be invoked.

7.3 The ‘manifestly closer connection’ escape clause

As pointed out by Symeonides, drawing on Aristotle, even the most carefully crafted rule may, owing to its generality or specificity, yield outcomes that contradict its intended purpose, illustrating the inherent tension between the making and the application of law.[243] To ensure justice in individual cases, the “manifestly closer connection” escape clause should function as a corrective mechanism. Where the centre of gravity of the dispute clearly lies elsewhere, it allows courts to depart from the law of ‘victim’s centre of interests,’ or the law of the defendant’s habitual residence following successful invocation of the escape clause for allegedly infringing content or conduct relating to matters of public interest. The ‘manifestly closer connection’ escape clause may also be used to designate a single applicable law in situations involving several centres of interests, which may occur in the case of well-known persons, such as celebrities.

While all circumstances of the case may be included in assessing whether the case is manifestly closer connected to another state, certain legal and geographical factors can in particular be relevant.[244] One such legal factor is a pre-existing contractual relationship between the victim and the alleged infringer, as illustrated in paragraph 5.1.2.1. As a geographical factor, consideration may be given to the state in which content allegedly infringing privacy or personality rights is dissiminated and relevant. For instance, where defamatory content is not disseminated in the state of the victim’s centre of interests, but rather in another state in which the victim is known, through a local newspaper or television programme that is neither accessible online nor in a language understood in the state of the victim’s centre of interests. In such circumstances, the tort case is manifestly closer connected to the state of dissemination than to the state of the victim’s centre of interests.

However, particularly in cases involving online dissemination of content infringing personality rights and privacy, such content will generally be accessible in the state of the victim’s centre of interests. The mere fact that the content is not published in the language of that state can no longer be regarded as a decisive factor, given the widespread availability and increasing effectiveness of automated translation technologies. Moreover, the ‘manifestly closer connection’ escape clause should remain an exceptional mechanism and not be understood as a general authorisation to assess, in every case, which state is most closely connected to the tort.

8. Concluding remarks

In drafting a just and balanced conflict-of laws approach for violations of personality rights and privacy, principles and conceptions of justice, including human rights-based considerations, provide guidance on identifying the relevant interests, which interests need to prevail, and how to balance the interests. Even though the proposed conflict-of-laws approach is based on common EU values, the strong interest in protecting both potential and actual SLAPP targets in order to facilitate the cross-border exchange of information concerning matters of public interest applies to all democratic societies.

Incorporating global issues and human rights-based interests into a conflict-of-laws approach is consistent with the evolving understanding of PIL as an instrument for serving common goods and justice. The proposed conflict-of-laws approach nevertheless addresses the criticism that the instrumentalisation of EU PIL should not undermine the core EU PIL principles of predictability and proximity.[245]

[1] St. Augustine’s dictum stated as the first philosophical position of the Thomisitic doctrine of the content of natural law in human law. See Joseph Shatin, ‘The Notion of a Minimum Content of Natural Law’ (1974) 60(4) Archiv für Rechts- und Sozialphilosophie 547.

[2] See Andrea Bonomi, ‘The Law Applicable to the Violation of Personality Rights’ Time to Fill the Gap?’ in Christian von Bar, Oliver L Knöfel, Ulrich Magnus, Heinz-Peter Mansel and Arkadiusz Wudarski (eds), Gedächtenisschrift für Peter Mankoswki (Mohr Siebeck 2024) 394-395; Justin Borg-Barthet, Benedetta Lobina and Magdalena Zabrocka, The use of SLAPPs to silence journalists, NGOs and civil society (Study commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the JURI Committee, 2021) 33. Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) [2012] OJ L351/1. With respect to the mosaic-based jurisdictional approach under Article 7(2) Brussels Ibis regarding violations of personality rights, see Case C-68/93 Shevill and Others v Presse Alliance SA, ECLI:EU:C:1995:61, 31; Joined Cases C-509/09 and C-161/10 eDate Advertising GmbH and Others v X and Martínez v MGN Ltd, ECLI:EU:C:2011:685, 51. In the eDate and Martinez ruling, the CJEU also established the approach to jurisdiction based on the mere accessibility of alleged personality rights infringing content.

[3] See also Christian Kohler, ‘Private international law aspects of the European Commission’s proposal for a directive on SLAPPs (“Strategic lawsuits against public participation”)’ (2022) Rivista di diritto internazionale privato e processuale 823. The term ‘strategic lawsuits against public participation’, SLAPPs, was coined in the United States of America by Penelope Canan and George W Pring, ‘Strategic Lawsuits against Public Participation’ 35 (1988) Social Problems 506.

[4] See A 2025 Report SLAPPs in Europe: Democracy in the Dock (CASE Report 2025) prepared by The Daphne Caruana Galizia Foundation on behalf of the Coalition Against SLAPPs in Europe (2026). Available at https://www.the-case.eu/resources/2025-report-slapps-in-europe-democracy-in-the-dock/ Unless otherwise stated, all websites were last accessed on 14 February 2026.

[5] Borg-Barthet, Lobina and Zabrocka (n 2) 33, 43. These scholars refer to Alex Mills, ‘The law applicable to cross-border defamation on social media: whose governs free speech in Facebookistan?’ (2025) Journal of Media Law, 1, 19.

[6] Trevor C Hartley, ‘Libel Tourism and Conflict of Laws’ (2010) 59(1) International and Comparative Law Quarterly 5.

[7] See Gert Brüggemeier, ‘Protection of personality rights in the law of delict/ torts in Europe: mapping out paradigms’, in Gert Brüggemeier, Aurelia Colombi Ciacchi, and Patrick O’Callaghan (eds), Personality Rights in European Tort Law (Cambridge University Press 2010) 34. See also Hartley (n 6) 26.

[8] See Aaron Warshaw, ‘Uncertainty from Abroad: Rome II and the Choice of Law for Defamation Claims’ (2006) 32 Brooklyn Journal of International Law 306. See also Bonomi (n 2) 400.

[9] See European Commission, Proposal for a Regulation of the European Parliament and of the Council on the law applicable to non-contractual obligations (“Rome II”) COM (2003) 427 final, 2003/0168 (COD) (22 July 2003) 17-18, 35.

[10] Regulation (EC) 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) [2007] OJ L199/40. This paper will refer to both privacy and personality rights in line with Article 1(2)(g) Rome II, although some scholars regard personality rights as a “terminological umbrella” under which privacy falls. Moreover, not all states in Europe recognise privacy and personality rights in the same manner or to the same extent. See Brüggemeier (n 7) 6-30.

[11] European Commission, Report from the Commission to the European Parliament, the Council and the European Economic and Social Committee on the application of Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations (Rome II Regulation), Brussels, 31 January 2025, SWD(2025) 9 final.

[12] Mainstrat, Comparative Study on the Situation in the 27 Member States as Regards the Law Applicable to Non-Contractual Obligations Arising out of Violations of Privacy and Rights Relating to Personality (Final Report, JLS/2007/C4/028, European Commission 2009).

[13] British Institute of International and Comparative Law (BIICL) and Civic Consulting, Study on the Rome II Regulation (EC) 864/2007 on the Law Applicable to Non-Contractual Obligations (Publications Office of the European Union 2021). Available at https://data.europa.eu/doi/10.2838/399539

[14] European Commission, 2025 Report on the application of Rome II (n 11) 7. This report also points out the necessity to assess the interplay between the General Data Protection Regulation (EU) 2016/679 (hereinafter GDPR), which does not contain a conflict-of-laws rule, with a uniform conflict-of-laws rule for violations of privacy and personality rights under the revisited Rome II. This assessment is outside the scope of this paper.

[15] European Parliament, Report on the Strengthening of Democracy and Media Freedom and Pluralism in the EU: the Anti-SLAPP Directive (2021/2135(INL).

[16] Directive (EU) 2024/1069 of the European Parliament and of the Council of 11 April 2024 on protecting persons who engage in public participation from manifestly unfounded claims or abusive court proceedings (‘Strategic lawsuits against public participation’) 2024 OJ L 2024/1069, 16 April 2024. Recitals 44 and 51 of the preamble to this Directive excludes the issue of applicable law from its scope.

[17] See, inter alia, Bonomi (n 2) 391; Jan-Jaap Kuipers, ‘Towards a European Approach in the Cross-Border Infringement of Personality Rights’ (2011) 18 German Law Journal 1681; Warshaw (n 8) 269; Dan Jerker B Svantesson, ‘The Rome II Regulation and Choice of Law in Internet-Based Violations of Privacy and Personality Rights – On the Wrong Track, but in the Right Direction?’ (2011) 16 Austrian Review of International and European Law Online 275. See also the various scholars who contributed to ‘Rome II and Defamation: Online Symposium’ organised by Conflict of Laws .net View and News in Private International Law. Avalaible at https://conflictoflaws.net/2010/rome-ii-and-defamation-online-symposium/

[18] See Institut de droit international, Session of the Hague (2019) ‘Internet and the Infringement of Privacy: Issues of Jurisdiction, Applicable Law and Enforcement of Foreign Judgments, adopted on 31 August 2019, Rapporteurs: Erik Jayme and Symeon Symeonides. The International Law Association, Committee on the Protection of Privacy in Private International and Procedural Law, Burkhard Hess, Chair; Jan von Hein, Co-Rapporteur; Cristina M Mariottini, Co-Rapporteur, Guidelines on the Protection of Privacy in Private International and Procedural Law (‘Lisbon Guidelines on Privacy’) adopted at Lisabon Conference (2022).

[19] Mathias Reimann, ‘Are there universal values in choice of law rules? Should there be any?’, in Franco Ferrari and Diego P Fernández Arroyo (eds), Private International Law: Contemporary Challenges and Continuing Relevance (Edward Elgar Publishing 2019) 180-181.

[20] Recitals 14, 16 and 19 of the preamble to Rome II.

[21] See Recital 14 of the preamble to Rome II.

[22] Reimann (n 19) 180-181.

[23] Recitals 16 to 18 of the preamble Rome II.

[24] Recitals 14 and 19 of the preamble to Rome II.

[25] Recitals 6 and 14 Rome II of the preamble to Rome II.

[26] Riz Mokal, ‘Reason, Justice, and Law’ (2026) 27. Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=6132386

[27] Mokal (n 26) 26. Mokal refers to Aristotle, Nicomachean Ethics, in Jonathan Barnes (ed), The Complete Works of Aristotle: The Revised Oxford Translation (One Volume Digital Edition, Princeton University Press, 1984) V.2–V.5, V.7; Ronald Dworkin, Law’s Empire (Harvard University Press 1986) ch. 2; Thomas Scanlon, What We Owe to Each Other (Harvard University Press 1998) ch. 1-2.

[28] Banu, ‘What Do We Owe to Each Other in Private International Law? Moral Contractualism and Transnational Justice’ in Michael S Green, Ralf Michaels and Roxana Banu (eds), Philosophical Foundations of Private International Law (Oxford University Press 2024) 323.

[29] See Symeon C Symeonides, ‘Material Justice and Conflicts Justice in Choice of Law’ in Patrick Borchers and Joachim Zekoll (eds), International Conflict of Laws for the Third Millennium: Essays in Honor of Friedrich K. Juenger (Transnational Publishers, 2001) 125. See also Ralf Michaels, ‘Private International Law and the Question of Universal Values’ in Franco Ferrari and Diego P Fernández Arroyo (eds), Private International Law: Contemporary Challenges and Continuing Relevance (Edward Elgar Publishing 2019) 169-170.

[30] Symeon C Symeonides, Private International Law: Idealism, Pragmatism, Electicism (Brill Nijhoff 2021) 1-2. See also Symeonides ‘Material Justice and Conflicts Justice in Choice of Law’ (n 29) 125-140.

[31] Roscoe Pound, ‘Causes of Popular Dissatisfaction with the Administration of Justice’. This paper is read by Roscou Pound at the Twenty-ninth Annual Meeting of the American Bar Assocation hold St. Paul, Minnesota, August 29, 30, 31, 1906 (American Bar Association, 1906).

[32] Symeonides ‘Material Justice and Conflicts Justice in Choice of Law’ (n 29) 126.

[33] Reimann (n 19) 182-183.

[34] Kuipers (n 17) 1698.

[35] Konrad Zweigert, ‘Some Reflections on the Sociological Dimensions of Private International Law or What is Justice in Conflict of Laws?’ (1973) 44(3) University of Colorado Law Review 284.

[36] Michael Sonnentag, ‘Friedrich Carl Von Savigny’, in Jürgen Basedow, Giesela Rühl, Franco Ferrari, and Pedro de Miguel Asensio (eds) Encyclopedia of Private International Law (Edward Elgar Publishing 2017) 1613.

[37] Sonnentag (n 36) 1613.

[38] Ibid 1614.

[39] Th M de Boer, ‘Forty Years On: The Evolution of Postwar Private International Law in Europe’, in Th. M. de Boer (ed.), Forty Years On: The Evolution of Postwar Private International Law in Europe (Kluwer 1990) 3.

[40] Gerhard Kegel, ‘The Crisis of Conflict of Laws’ 112 Recueil des cours de l’Académie de La Haye (Martinus Nijhoff 1964) 186.

[41] Heinz-Peter Mansel, ‘Kegel, Gerhard,’in Jürgen Basedow, Giesela Rühl, Franco Ferrari, and Pedro de Miguel Asensio (eds) Encyclopedia of Private International Law (Edward Elgar Publishing 2017) 1066-1067.

[42] Gerhard Kegel, ‘Paternal Home and Dream Home: Traditional Conflict of Laws and the American Reformers’ (1979) 27 The American Journal of Comparative Law 621.

[43] See Kegel, ‘The Crisis of Conflict of Laws’ (n 40) 186.

[44] Roxana Banu, ‘Conflicting Justice in Conflict of Laws’ (2021) 53 Vanderbilt Law Review 475. Banu refers to Klaus Schurig, Kollisionsnorm und Sachrecht: Zur Struktur, Standort und Methode des Internationalen Privatrechts (Duncker & Humblot 1981) 67.

[45] Kegel, ‘The Crisis of Conflict of Laws’ (n 40) 186, 188.

[46] Kegel, ‘Paternal Home and Dream Home’ (n 42) 621-622.

[47] Banu, ‘Conflicting Justice in Conflict of Laws’ (n 44) 508. Banu refers to, inter alia, Kegel, ‘Paternal Home and Dream Home’ (n 42) 626.

[48] Banu, ‘Conflicting Justice in Conflict of Laws’ (n 44) 508. Banu refers to Gerhard Kegel, Internationales Privatrecht 265 (3d ed. 1971) 266-268.

[49] Banu, ‘Conflicting Justice in Conflict of Laws’ (n 44) 481, 509-510. Banu refers in this context, inter alia, to Kegel, ‘The Crisis of Conflict of Laws’ (40) 245-256.

[50] Symeonides, Private International Law: Idealism, Pragmatism, Electicism (n 30) 1-2.

[51] See Symeonides, Private International Law: Idealism, Pragmatism, Electicism (n 30) 267. Babcock v Jackson, 191 N.E.2d 279, at 284 (N.Y. 1963).

[52] Ibid.

[53] With respect to Brainerd Currie’s governmental interest analysis and Robert Leflar’s better law approach, see, inter alia, Zweigert (n 35) 288-290.

[54] See Symeon C Symeonides, ‘The Torts Chapter of the Third Conflicts Restatement: A Roadmap’ (October 17, 2023) 8. Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4605104 A shorter version of this paper is published in 88 (2024) Rabels Zeitschrift für ausländisches und internationales Privatrecht

[55] See Warshaw (n 8) 305.

[56] See also Article 28 U.S.C. § 4102(a)(1) sub a of the ‘Securing the Protection of our Enduring and Established Constitutional Heritage Act, referred to as the SPEECH Act, which stipulate that “a domestic court shall not recognize or enforce a foreign judgment for defamation unless the domestic court determines that the defamation law applied in the foreign court’s adjudication provided at least as much protection for freedom of speech and press in that case as would be provided by the first amendment to the Constitution of the United States and by the constitution and law of the State in which the domestic court is located”.

[57] See David Keating, Helen Knowles-Gardner en Dan Greenberg, Anti-SLAPP Statutes: 2025 Report Card (Institute for Free Speech, September 2025). Available at https://www.ifs.org/anti-slapp-report/

[58] Zweigert (n 35) 290. In many cases involving the application of Currie’s analysis, courts nonetheless “concluded that the stronger interest was that of the foreign state rather than that of the forum”. See Symeonides, Private International Law: Idealism, Pragmatism, Electicism (n 30) 89.

[59] Contra Warshaw (n 8) 307-309.

[60] Generally, scholars refer to a European evolution in choice-of-law theory, although Ralf Michaels describes it as a ‘European Choice-of-Law Revolution’. See Heinz-Peter Mansel, “Connecting factor’, in Jürgen Basedow, Giesela Rühl, Franco Ferrari, and Pedro de Miguel Asensio (eds) Encyclopedia of Private International Law (Edward Elgar Publishing 2017) 451; Ralf Michaels, ‘The New European Choice-of-Law Revolution’ (2008) 82 Tulane Law Review 1607; Symeon C Symeonides, ‘The American Revolution and the European Evolution in Choice of Law: Reciprocal Lessons’ (2008) 82 Tulane Law Review 1741.

[61] Symeon C Symeonides, Codifying Choice of Law Around the World: An International Comparative Analysis (University Press 2014) 174-189. See, for instance, Article 4(3) Rome II.

[62] Symeonides, ‘Material Justice and Conflicts Justice in Choice of Law’ (n 29) 138.

[63] De Boer, ‘Forty Years On’ (n 39) 3; Symeonides (n 62) 246. See, for instance, Articles 5 to 9 Rome II.

[64] See Joined Cases C-509/09 and C-161/10 eDate and Martinez (n 2).

[65] See Recital 43 in the preamble to the Anti-SLAPP Directive. For more information on the PIL provisions, Articles 16 and 17 of the Anti-SLAPP Directive, see Birgit van Houtert, ‘The Anti-SLAPP Directive in the Context of EU and Dutch Private International Law: Improvements and (Remaining) Challenges to Protect SLAPP Targets’ (2024) 50(4) Nederlands Internationaal Privaatrecht 672-673.

[66] Symeonides, ‘Material Justice and Conflicts Justice in Choice of Law’ (n 29) 138. Ralf Michaels pointed out that most scholars adhere to the view that “conflict of laws should be about conflicts justice, but sometimes tempered by substantive justice”. See Michaels, ‘Private International Law and the Question of Universal Values’ (n 29) 170.

[67] Banu, ‘Conflicting Justice in Conflict of Laws’ (n 44) 461-462.

[68] See, inter alia, Mahmood Bagheri, ‘Conflict of Laws, Economic Regulations and Corrective/Distributive Justice’ (2007) 28 University of Pennsylvania Journal of International Law 123; William Tetley, 'A Canadian Looks at American Conflict of Law Theory and Practice, Especially in the Light of the American Legal and Social Systems (Corrective vs. Distributive Justice)' (1999) 38 Columbia Journal of Transnational Law 299.

[69] See, inter alia, Lord Steyn, ‘Perspectives of Corrective and Distributive Justice in Tort Law’ (2002) 37 Irish Jurist 1-15.

[70] See Alexandru Daniel On, Strict liability and the aims of tort law: a doctrinal, comparative, and normative study of strict liability regimes (doctoral thesis, Maastricht University 2020) 318. On refers to Jules Coleman, Risks and Wrongs (Oxford University Press 1992) 309-310. The distinction of justice between distributive and corrective justice stems from Aristotle. See Aristotle Nicomachean Ethics, Book V.

[71] See On (n 70) 317-324; Steyn (n 69) 4-5.

[72] For an affirmative answer, see Bagheri (n 68) 120-121. For a negative answer, see Florian Rödl, ‘Necessary Unity’ in Michael S Green, Ralf Michaels and Roxana Banu (eds), Philosophical Foundations of Private International Law (Oxford University Press 2024) 47.

[73] Symeonides, Codifying Choice of Law Around the World (n 61) 45.

[74] See also Bagheri (n 68) 130.

[75] See Julian Lamont and Christi Favor, ‘Distributive Justice’ in Edward N Zalta (ed), The Stanford Encyclopedia of Philosophy (Winter 2017 edn) para 1. Available at https://plato.stanford.edu/entries/justice-distributive/ Aristotle refers to “honours and goods” in Nicomachean Ethics, Book V.

[76] Steyn (n 69) 5.

[77] Blake, Michael and Patrick Taylor Smith, ‘International Distributive Justice’, in Edward N Zalta & Uri Nodelman (eds), The Stanford Encyclopedia of Philosophy (Fall 2024 Edition), https://plato.stanford.edu/archives/fall2024/entries/international-justice/.

[78] According to Gardner, the allocation of rights to initiate proceedings in tort concerns a matter of distributive justice, which is important for the access to the achievement of justice in another form, namely corrective justice. See John Gardner, ‘What is Tort Law For? Part 2. The Place of Distributive Justice,’ in J Oberdiek (ed), Philosophical Foundations of Tort Law (Oxford University Press 2014) 10-11. From the perspective of potential victims of violations of personality rights and privacy, this reasoning may, by analogy, also be applied in the context of drafting conflict-of-laws rules, as the allocation of the applicable law is important for access to legal mechanisms of corrective justice.

[79] See On (n 70) 310. On refers to Alasdiar MacIntyre, Whose Justice? Which Rationality? (University of Notre Dame Press 1988, repr. 2014) 104.

[80] Joined Cases C-509/09 and C-161/10 eDate and Martinez (n 2) 50.

[81] See also Bonomi (n 2) 403.

[82] See the introduction of this paper.

[83] See Ernest J Weinrib, ‘Corrective Justice in a Nutshell’ (2002) 52(4) University of Toronto Law Journal 351-352; On (n 70) 319.

[84] Recitals 14 and 19 of the preamble to Rome II. With respect to the special conflict-of-laws rules that protect certain public interests, see Articles 5 to 9 of Rome II.

[85] See J Meeusen, ‘Instrumentalisation of private international law in the European Union: towards a

European conflicts revolution?’ (2007) European Journal of Migration Law, 287-305; Veerle Van Den Eeckhout, ‘The Instrumentalisation of Private International Law: Quo Vadis? Rethinking the 'Neutrality' of Private International Law in an Era of Globalisation and Europeanisation of Private International Law’ (2013). Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2338375 With respect to the criticism that PIL has contributed to less to the global governance debate, see Horatia Muir-Watt,

‘Private International Law Beyond the Schism’ (2011) Transnational Legal Theory 347-427.

[86] Arthur Taylor von Mehren, ‘Choice of Law and the Problem of Justice’, in J A Martin, Perspectives on Conflict of Laws: Choice of Law (Boston and Toronto, Little Brown and Company 1980) 236.

[87] See Von Mehren (n 86) 236.

[88] As pointed out by Lutzi, the 2012 edition of “Dicey, Morris & Collins states right at the outset that ‘[t] he main justification for the conflict of laws is that it implements the reasonable and legitimate expectations of the parties to a transaction or an occurrence’.” See Tobias Lutzi, Private International Law Online: Internet Regulation and Civil Liability in the EU (Oxford University Press 2020) 150. See also Lord Collins and others, Dicey, Morris & Collins. The Conflict of Laws (15th edn, Sweet & Maxwell 2012) [1-005].

[89] See Recitals 6 and 14 of the preamble to Rome II.

[90] Uta Kohl, Jurisdiction and the Internet: Regulatory Competence over Online Activity (Cambridge University Press, 2007) 115-117; Dan Jerker B Svantesson, Private International Law and the Internet (4th edn, Wolters Kluwer 2021) 128-129; Dan Jerker B Svantesson, ‘The Holy Trinity of Legal Fictions Undermining the Application of Law to the Global Internet', (2015) 23(3) International Journal of Law and Information Technology 219–234.

[91] Kohl (n 90) 115.

[92] See Svantesson, Private International Law and the Internet (n 90) 128-129. Svantesson refers to the concept of 'party autonomy “as a cornerstone of private international law”.

[93] Mokal (n 26) 31. Mokal refers to Thomas Scanlon, What We Owe to Each Other (Harvard University Press 1998) ch 7; John Rawls, Revised Edition (Harvard University Press 1999) para 4.

[94] Mansel, ‘Connecting factor’ (n 60) 442.

[95] See Svantesson ‘The Rome II Regulation and Choice of Law in Internet-Based Violations of Privacy and Personality Rights’ (n 17) 282.

[96] Case C-68/93 Shevill and Others v Presse Alliance SA, ECLI:EU:C:1995:61, 31; Joined Cases C-509/09 and C-161/10 eDate and Martinez (n 2) 51.

[97] See Javier Carrascosa González, The Internet – Privacy and Rights Relating to Personality 378 Recueil des cours de l’Académie de La Haye (Brill/ Nijhoff 2016) 426.

[98] See Borg-Barthet, Lobina and Zabrocka (n 2) 44.

[99] Carrascosa González (n 97) 427 See also Lutzi (n 88) 145.

[100] With respect to the criteria subjective and objective intention, see Lutzi (n 88) 145.

[101] Joined Cases C-585/08 and C-144/09 Peter Pammer v Reederei Karl Schlüter GmbH & Co KG and Hotel Alpenhof GesmbH v Oliver Heller, EU:C:2010:740, 93.

[102] Lutzi (n 88) 147.

[103] See Borg-Barthet, Lobina and Zabrocka (n 2) 44.

[104] See Bonomi (n 2) 402.

[105] See also Bonomi (n 2) 402.

[106] Article 5a(3) proposed by the European Parliament in the Resolution of 10 May 2012 on the proposal for a Council decision on the extension of the Rome II Regulation to non-contractual obligations arising from violations of privacy and the protection of reputation’ P7_TA(2012)0200. See also Borg-Barthet, Lobina and Zabrocka (n 2) 44.

[107] See Svantesson, ‘The Rome II Regulation and Choice of Law in Internet-Based Violations of Privacy and Personality Rights’ (n 17) 296. See also Cruz Villalón who advocated a technology-neutral approach to jurisdiction under Article 7(2) Brussels Ibis regarding violations of personality rights, see Opinion of Advocate General Cruz Villalón, eDate Advertising GmbH v X; Martinez v MGN Ltd (C-509/09 and C-161/10, EU:C:2011:192) para 53; Bonomi (n 2) 405.

[108] See Bettina Heiderhoff, ‘Heiderhoff: Privacy and Personality Rights in the Rome II Regime – Yes, Lex Fori, Please!’, 20 July 2010, available at https://conflictoflaws.net/2010/heiderhoff-privacy-and-personality-rights-in-the-rome-ii-regime-yes-lex-fori-please/. Gerhard Wagner, ‘Ehrenschutz und Pressefreiheit im europäischen Zivilverfahrens- und Internationalen Privatrecht’ (1998) 62 RabelsZ 282 ff; Gerhard Wagner, ‘Internationales Deliktsrecht, die Arbeiten an der Rom II-Verordnung und der Europäische Deliktsgerichtsstand’ (2006) IPRax 385 ff.

[109] Article 23 of Hungarian Act XXVIII of 2017 on Private International Law.

[110] See International Law Association, Lisbon Guidelines on Privacy (2022) (n 18) 42. See also Frank Vischer, General Course on Private International Law 232 Recueil des cours (1992) 228.

[111] International Law Association, Lisbon Guidelines on Privacy (2022) (n 18) 42.

[112] Mills ‘The law applicable to cross-border defamation on social media: whose governs free speech in Facebookistan?’ (n 5) 7-10.

[113] Eduardo Álvarez-Armas nonetheless points out that the unpredictability caused by this rule is not in accordance with core principle of EU PIL. See Eduardo Álvarez-Armas, Álvarez-Armas on potential human-rights-related amendments to the Rome II Regulation (I): The law applicable to SLAPPs (Conflict of Laws, 25 January 2021) https://conflictoflaws.net/2021/alvarez-armas-on-potential-human-rights-related-amendments-to-the-rome-ii-regulation-i-the-law-applicable-to-slapps/

[114] See Borg-Barthet, Lobina and Zabrocka (n 2) 44.

[115] See also Kuipers (n 17) 1699.

[116] See Joined Cases C-509/09 and C-161/10 eDate and Martinez (n 2) 51.

[117] Ibid. See also Case C-194/16 Bolagsupplysningen Oú, Ingrid Ilsjan v Svensk Handel AB, ECLI:EU:C:2017:766.

[118] See also Bonomi (n 2) 401.

[119] See paragraph 5.2 on the principle of equality.

[120] See Carrascosa González (n 97) 429-433. With respect to defamation, see 2021 Rome II Study by BIICL (n 12) 10-11.

[121] See Article 7, European Commission, Directorate-General Justice and Home Affairs, Consultation on a Preliminary Draft Proposal for a Council Regulation on the Law Applicable to Non-Contractual Obligations, September 2002.

[122] See also Svantesson ‘The Rome II Regulation and Choice of Law in Internet-Based Violations of Privacy and Personality Rights’ (n 17) 283. According to Diana Willis, the victim's habitual residence or domicile has “a high degree of predictability for both claimant and defendant”. See European Parliament, Committee on Legal Affairs, Working Document on the Amendment of Regulation (EC) No 864/2007 on the Law Applicable to Non-Contractual Obligations (Rome II) (23 June 2010) rapporteur Diana Wallis, 8.

[123] European Commission, Rome II Proposal COM (2003) 427 (n 9) 18. See also International Law Association, Lisbon Guidelines on Privacy (2022) (n 18) 31. Carrascosa González nonetheless argued that this criticism is weak. In the event of persons whose habitual residence is unstable and difficult to identify, he advocated to apply the law of the country most closely connected with the case. See Carrascosa González (n 97) 435.

[124] See the Dutch Supreme Court 3 June 2016, ECLI:NL:HR:2016:1054 Dahabshiil 3.8.2-3.10.2. Dutch courts interpreted the lex loci damni-rule laid down in Article 10:159 Dutch Civil Code of Procedure in conjunction with Article 4(1) Rome II as the victim’s centre of interests by analogy to the ruling of the CJEU in the Joined Cases C-509/09 and C-161/10 eDate and Martinez (n 2).

[125] Carrascosa González (n 97) 429 -431. See also Case C-194/16, Bolagsupplysningen OÜ and Ingrid Ilsjan v Svensk Handel AB, EU:C:2017:766, 33. With respect to online violations of the protection of personal data, Luís de Lima Pinheiro argued that the place where the data subject has his habitual residence, or its center of interests should be considered as the place of the injury. See Luís de Lima Pinheiro, Law Applicable to Personal Data Protection on the Internet: Some Private International Law Issues (Centro de Investigação de Direito Privado (CIDP) Research Paper No 10, Anuario Español de Derecho Internacional Privado XVIII (2018) 187. Available at https://ssrn.com/abstract=3364853

[126] See Article 3(1) and Article 4(a) of the Proposal for a European Convention on the law applicable to non-contractual obligations (final version) of the European Group of Private International Law (GEDIP) Text adopted at the Hague meeting of 27-28 September 1997.

[127] European Commission, Rome II Proposal COM (2003) 427 (n 9) 18.

[128] Ibid.

[129] See International Law Association, Lisbon Guidelines on Privacy (2022) (n 18) 27, 42; Lutzi (n 88) 185-186.

[130] See Article 99 §2(1) of the Belgian Private International Law Code of 16 July 2004; Article 108(1) of the Bulgarian Code of Private International Code, No 42/17 May 2005, as latest amended by No 100/21 December 2010; Article 101 Czech Act No 91/2012 on Private International Law; Article 23 of Hungarian Act XXVIII of 2017 on PIL; Article 1.45(1) Civil Code of the Republic of Lithuania 18 July of 2000, Law No. VIII-1864 (as amended on April 12, 2011, No XI-1312); Article 16(2) Polish Act of Private International Law of 4 February 2011 (O.J. 2011 No. 80, item 432; in force from 16 May, 2011); Article 2.642(2) Romanian Civil Code (Law No 287/2009), as amended by Law No 71/2011.

[131] See Article 5a(1) of the European Parliament, Resolution of 10 May 2012 on extension of Rome II to violations of privacy and the protection of reputation (n 106).

[132] See also Kuipers (n 17) 1704.

[133] See Article 5a(3) of the European Parliament, Resolution of 10 May 2012 on extension of Rome II to violations of privacy and the protection of reputation (n 106).

[134] See Article 5a(2) of the European Parliament, Resolution of 10 May 2012 on extension of Rome II to violations of privacy and the protection of reputation (n 106).

[135] With respect to online activities, scholars have also referred to the ‘country of orgin’ approach. See, inter alia, Lutzi (n 88) 142-145.

[136] See 2009 Study by Mainstrat (n 12) 9-10, 86-96.

[137] See 2009 Study by Mainstrat (n 12) 86-87.

[138] Case C-523/10 Wintersteiger AG v Product 4U Sondermaschinenbau GmbH, ECLI:EU:C:2012:220, 36.

[139] See also Kuipers (n 17) 1698.

[140] See Bonomi (n 2) 401; Kuipers (n 17) 1698.

[141] See Hartley (n 6) 35, 38; Kuipers (n 17) 1701-1705.

[142] Hartley (n 6) 38.

[143] Kuipers (n 17) 1701.

[144] Kuipers (n 17) 1704.

[145] Kuipers (n 17) 1704.

[146] Svantesson, Private International Law and the Internet (n 90) 122.

[147] Recital 14 of the preamble to Rome II.

[148] See Recital 14 of the preamble to Rome II. See also Mansel, ‘Connecting factor’ (n 60) 443; Vischer (n 110).

[149] Symeonides, Codifying Choice of Law Around the World (n 61) 191-195.

[150] Andrew Dickinson, The Rome II Regulation: The Law Applicable to Non-Contractual Obligations (Oxford University Press 2008) 340.

[151] Ulrich Magnus ‘Article 4: General rule”, in Ulrich Magnus and Peter Mankowski (eds), European Commentaries on Private International Law (ECPIL), Volume III: Rome II Regulation (Otto Schmidt 2019) 184.

[152] Magnus (n 151) 184. Personal factors are, for instance, nationality, or family relationships.

[153] See Lutzi (n 88) 181.

[154] See also Dickinson (n 150) 341 en 347; Magnus (n 151) 184.

[155] See Amendment 9, Recital 12 of the European Parliament, Report on the proposal for a Regulation of the European Parliament and of the Council on the law applicable to non-contractual obligations (Rome II) (27 June 2005) COM(2003) 427 final, C5-0338/2003, 2003/0168(COD).

[156] Magnus (n 151) 185.

[157] Article 5a(2) of the European Parliament, Resolution of 10 May 2012 on extension of Rome II to violations of privacy and the protection of reputation (n 106).

[158] See Article 99 §2(1) of the Belgian Law of 16 July 2004 establishing the Code of Private International Law; Article 108(2) of the Bulgarian Code of Private International Code, No 42/17 May 2005, as latest amended by No 100/21 December 2010; Article 101(c) Czech Act No 91/2012 on Private International Law; Art. 2.642(2) Romanian Civil Code (Law No 287/2009), as amended by Law No 71/2011.

[159] With respect to the escape clause in Article 99 §2(1) of the Belgian Law of 16 July 2004 of the Belgian Code of Private International Law, see J Verlinden, ‘Artikel 99: Recht toepasselijk op verbintenissen uit onrechtmatige daad’ in J Erauw, M Fallon, E Guldix, J Meeusen, M Pertegás Sender, H Van Houtte, N Watté and P Wautelet (eds), Het Wetboek Internationaal Privaatrecht becommentarieerd – Le Code de droit international privé commenté (Intersentia/Bruylant 2006) 510.

[160] See European Parliament, Resolution of 10 May 2012 on extension of Rome II to violations of privacy and the protection of reputation (n 106). See also Kuipers (n 17) 1699.

[161] This reflects the widely recognized principle of formal equality described by Aristotle in reference to Plato: “treat like cases as like” (Aristotle, Nicomachean Ethics, V.3. 1131a10–b15; Politics, III.9.1280 a8–15, III. 12. 1282b18–23). See Stefan Gosepath, ‘Equality’ in Edward N Zalta (ed), The Stanford Encyclopedia of Philosophy (Summer 2021 Edition). Available at https://plato.stanford.edu/entries/equality/

[162] See 2009 Study by Mainstrat (n 12). See also the forthcoming publication by Edward Elgar of the European Association of PIL Young Research Network 5th Research Project on ‘Law Applicable to Non-Contractual Obligations Arising out of Privacy and Personality Rights’ chaired by Mathilde Codazzi, Paul Eichmüller and Marco Pasqua. For more information, see https://eapil.org/what-we-do/young-research-network/

[163] Banu, ‘Conflicting Justice in Conflict of Laws’ (n 44) 494, 509. However, as argued by Symeonides, multilateral conflict-of-laws rules may not guarantee to treat foreign law and the lex fori alike since it may require more for the application of the foreign law. See Symeonides, Private International Law: Idealism, Pragmatism, Electicism (n 30) 93. Symeonides refers to Michael Bogdan, Private International Law as Component of the Law of the Forum (Martinus Nijhoff 2012) 86.

[164] Reimann (n 19) 182-183; Symeonides, Private International Law: Idealism, Pragmatism, Electicism (n 30) 1-2.

[165] Banu, ‘Conflicting Justice in Conflict of Laws’ (n 44) 480.

[166] Sonnentag (n 36) 278 ff.

[167] In relation to non-EU Member States, Ralf Michaels nonetheless points out the trend “towards unilateral preference for European law”. See Ralf Michaels, ‘The New European Choice-Of-Law Revolution’ (n 60) 1637.

[168] See Banu, ‘Conflicting Justice in Conflict of Laws’ (n 44) 512. Banu refers to David F. Cavers, A Critique of the Choice-of-Law Process: Addendum 1972, 17 Harvard International Law Journal (1976) 654-56.

[169] See also Mokal (n 26) 28.

[170] María José Falcón y Tella, Justice and Law (Leiden, Boston, Brill Nijhoff 2014), 131.

[171] Ibid 132.

[172] Mokal (n 26) 28. Mokal refers to Ronald Dworkin, Justice for Hedgehogs (Harvard University Press 2011) 352.

[173] On (n 70) 318. See also Gosepath (n 161) para 2.2.

See Aristotle, Nicomachean Ethics 113ob-1132b.

[174] See Gosepath (n 161).

[175] See On (n 70) 319.

[176] Mokal (n 26) 30.

[177] See Th M de Boer, ‘And the winner is ...? Hoe het afliep met de grondslagenstrijd in het IPR’, in A A H van Hoek, R J Q Klomp, M B M Loos, A E Oderkerk, J A Pontier and J W Rutgers (eds), Offerhauskring vijftig jaar: jubileumbundel ter gelegenheid van het vijftigjarig bestaan van de Studiekring 'Prof. Mr. J. Offerhaus' (1962-2012) (Boom Juridische Uitgevers 2012) 39.

[178] See, inter alia, Articles 10-23 Brussels Ibis.

[179] See Symeonides, ‘Material Justice and Conflicts Justice in Choice of Law’ (n 29) 128-138.

[180] See Article 99(2) Belgian Code of Private International Law of 16 July 2004; Art. 108(1) Bulgarian Private International Law Code of 2005; Article101 Czech 91/2012 Act of 25 January 2012 on Private International Law; Article 23 of Hungarian Act XXVIII of 2017 on PIL; Article 1.45(1) Civil Code of the Republic of Lithuania 18 July of 2000, Law No. VIII-1864 (as amended on April 12, 2011, No XI-1312); Article 16(2) Polish Act of Private International Law of 4 February 2011 (O.J. 2011 No. 80, item 432; in force from 16 May, 2011); Article 2.642 Romanian New Civil Code Law 287/2009 subsequently amended and supplemented by Law 71/2011.

[181] Article 108(1) Bulgarian Private International Law Code of 2005; Article 1.45(1) Civil Code of the Republic of Lithuania 18 July of 2000, Law No. VIII-1864 (as amended on April 12, 2011, No XI-1312).

[182] See Joined Cases C-509/09 and C-161/10 eDate and Martinez (n 2) 49.

[183] See European Parliament, Resolution of 10 May 2012 on extension of Rome II to violations of privacy and the protection of reputation (n 106). See also paragraph 5.1.1.3 of this paper.

[184] Van Houtert (n 65) 668. See also Álvarez-Armas (n 113).

[185] Von Mehren (n 86) 236.

[186] L Strikwerda and SJ Schaafsma, Inleiding tot het Nederlandse Internationaal Privaatrecht (12th edn, Wolters Kluwer 2019) 25. Savigny “drew heavily on natural law processes of reasoning”. See Alex Mills, ‘The Private History of International Law’ (2006) 55(1) International and Comparative Law Quarterly 1.34. Mills, inter alia, refers to L von Bar, The Theory and Practice of Private International Law (W Green & Sons 1892) 55.

[187] Strikwerda and Schaafsma (n 186) 25.

[188] Ibid.

[189] Ibid.

[190] Rödl (n 72) 45.

[191] With respect to the question of universal conflicts values, see Michaels, ‘Private International Law and the Question of Universal Values’ (n 29) 177.

[192] HCCH Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (2019), referred to as the 2019 Hague Judgments Convention 2019.

[193] With respect to the influence of the different values in the context of recognition of foreign judgments involving infringements of personality rights, see Symeon C Symeonides, ‘Infringement of Personality Rights via the Internet: Jurisdiction and Choice of Law’ (2022) 2 Lex and Forum 312-313.

[194] See also Mokal (n 26) 24.

[195] 2009 Study by Mainstrat (n 12) 84-96.

[196] Ibid. See also the forthcoming publication by Edward Elgar of the EAPIL YRN 5th Research Project on ‘Law Applicable to Non-Contractual Obligations Arising out of Privacy and Personality Rights’ (n 162).

[197] Paragraph 5.1.2.2.

[198] Charter of Fundamental Rights of the European Union [2012] OJ C 326/391; Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) (signed 4 November 1950, entered into force 3 September 1953).

[199] Federica Casarosa (ed), Handbook on Techniques of Judicial Interaction in the Application of the EU Charter: Freedom of Expression and Countering Hate Speech (E-NACT Project, European Commission Fundamental Rights & Citizenship Programme 2019) with the collaboration of Madalina Moraru, 8.

[200] Dirk Voorhoof, ‘Freedom of Expression versus Privacy and the Right to Reputation. How to Preserve Public Interest Journalism’, in Stijn Smet and Eva Brems (eds), When Human Rights Clash at the European Court of Human Rights. Conflict or Harmony? (Oxford University Press 2017) 153.

[201] See, inter alia, Gündüz v Turkey App No. 35071/97 (ECtHR, December 2003) para 41. See also Dirk Voorhoof and Hannes Cannie, ‘Freedom of Expression and Information in a Democratic Society. The Added but Fragile Value of the European Convention on Human Rights’ 72 (2010) The International Communication Gazette 417-418. With respect to the defintion of hate speech, see the Recommendation No. R (97) 20 of the Council of Europe Committee of Ministers to the Member States on “Hate Speech” adopted on 30 October 1997.

[202] With respect to combatting hate speech, see, inter alia, Recitals 12, 62, 80, 87, 106 and Article 35(1) sub c of the Digital Service Act Regulation (EU) 2022/2065. With respect to the protection of processing personal data, see GDPR and Article 8 Charter.

[203] See, inter alia, Handyside v United Kingdom App no 5493/72 (ECtHR, 7 December 1976) para 48.

[204] Ibid para 49; Morice v France (Grand Chamber) App no 29369/10 (ECtHR, 23 April 2015) para 124.

[205] With respect to the public interest as part of proportionality, see Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press 2012) 76.

[206] See Von Hannover v Germany App no 59320/00 (ECtHR, 24 June 2004) para 57.

[207] See paragraph 5.2 of this paper. The development of proportionality as a rational concept has actually been influenced by the classical Greek theories of corrective and distributive justice. See Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press 2012) 175-176.

[208] See, inter alia, Handyside v United Kingdom App no 5493/72 (ECtHR, 7 December 1976) paras 48–49. See also Von Hannover v Germany App no 59320/00 (ECtHR, 24 June 2004) para 57; Axel Springer AG v Germany App no 39954/08 (ECtHR, 7 February 2012) paras 87-88.

[209] See, inter alia, Sürek v Turkey (No 1) App no 26682/95 (ECtHR, 8 July 1999) para 61; Lindon, Otchakovsky-Laurens and July v France App nos 21279/02 and 36448/02 (ECtHR, 22 October 2007) para 46; Axel Springer AG v Germany App no 39954/08 (ECtHR, 7 February 2012) para 90; Morice v France App no 29369/10 (ECtHR, 23 April 2015) para 125.

[210] Axel Springer AG v Germany App no 39954/08 (ECtHR, 7 February 2012) para 79. See also Case C-633/22 Real Madrid Club de Fútbol v EE and Société Éditrice du Monde SA, ECLI:EU:C:2024:843, para 55.

[211] Registry of European Court of Human Rights, Guide on Article 10 of the European Convention on Human Rights – Freedom of Expression (Case-Law Guide, Council of Europe/ European Court of Human Rights) Last updated on 31 August 2025, 61-62. See also case law in ‘Registry of European Court of Human Rights, Key Theme Article 10 – Contribution to public debate: Journalists and other actors, Last updated on 31 August 2025. Available at https://ks.echr.coe.int/web/echr-ks/article-10. See also Voorhoof and Cannie, ‘Freedom of Expression and Information in a Democratic Society’ (n 201) 414-416.

[212] Axel Springer AG v Germany App no 39954/08 (ECtHR, 7 February 2012) paras 89-90. See also Tafzi El Hadri and El Idrissi Mouch v Spain App no 7557/23 (ECtHR, 8 January 2026) para 98. See also Voorhoof and Cannie, ‘Freedom of Expression and Information in a Democratic Society’ (n 201) 412-414.

[213] Dupate v Latvia App no. 18068/11 (ECtHR, 19 November 2020) para 51. See also Von Hannover v Germany App no 59320/00 (ECtHR, 24 June 2004) paras 63-65.

[214] Recital 153 to the GDPR.

[215] Case C-131/12 Google Spain SL and Google Inc v Agencia Española de Protección de Datos (AEPD) and Mario Costeja González ECLI:EU:C:2014:317, para 81; see also Case C-136/17 GC and Others v Commission nationale de l’informatique et des libertés (CNIL) ECLI:EU:C:2019:773, para 66.

[216] Ibid.

[217] Case C-633/22 Real Madrid (210) para 55.

[218] See Recital 6 of the Anti-SLAPP Directive

[219] Ibid.

[220] Recital 18 of the Anti-SLAPP Directive.

[221] See Article 18c of Amendments adopted by the European Parliament on 11 July 2023 on the proposal for a directive of the European Parliament and of the Council on protecting persons who engage in public participation from manifestly unfounded or abusive court proceedings (Strategic lawsuits against public participation) COM(2022)0177 – C9-0161/2022 – 2022/0117(COD), P9_TA(2023)0264, OJ C/2024/4029. See Álvarez-Armas (n 113); Borg-Barthet, Lobina and Zabrocka (n 2) 42-44.

[222] It should be noted that claims in SLAPPs can be based on many other grounds than violations of privacy or personality rights, such as copyright infringment or other intellectual property rights, which leads to the application of Article 8 Rome II. SLAPP claims may also be grounded on violation of rules of unfair competition, which leads tot he application of the Article 6 and 4 of Rome II. See Kohler (n 3) 823-824.

[223] See also Álvarez-Armas (n 113).

[224] Article 1 and Article 4(3) of the Anti-SLAPP Directive.

[225] See also Recitals 23-27 in the preamble to the Anti-SLAPP Directive.

[226] See also Richard Garnett, Substance and Procedure in Private International Law (Oxford University Press 2012) 5.

[227] See also Recital 37 in the preamble to the Anti-SLAPP Directive.

[228] See also Van Houtert (n 65) 567.

[229] See Article 1 of the Anti-SLAPP Directive.

[230] See Recital 29 in the preamble to the Anti-SLAPP Directive.

[231] See paragraph 5.1.1. on the principle of predictability.

[232] Banu, ‘Conflicting Justice in Conflict of Laws’ (n 44) 480.

[233] Ibid. Banu refers to Gerhard Kegel, ‘The Crisis of Conflict of Laws’ (1964) 112 Recueil des Cours 244.

[234] See paragraph 5.3.2.

[235] See Joined Cases C-509/09 and C-161/10 eDate and Martinez (n 2) 49.

[236] With respect to the ‘centre of interests’ approach as jurisdiction criterion under Article 7(2) Brussels Ibis, see Joined Cases C-509/09 and C-161/10 eDate and Martinez (n 2) 50.

[237] The criteria for assessing the escape clause based on the unforeseeability of the damage are set out in paragraph 5.1.2.2. Bonomi argues for the adoption of a foreseeability clause without drawing a distinction based on whether the alleged infringing content or act contributes to matters of public interest. See Bonomi (n 2) 403-404.

[238] See paragraph 5.3.2.

[239] See Madeleine Petersen Weiner, ‘Lawsuits as Wapons? The EU’s Anti-SLAPP Directive Strikes Back’ 124 (2025) Zeitschrift für Vergleichende Rechtswissenschaf Archiv für Internationales Wirtschafsrecht 312.

[240] See Article 108(3) Bulgarian Private International Law Code of 2005; Article 1.45(2) Civil Code of the Republic of Lithuania 18 July of 2000, Law No. VIII-1864 (as amended on April 12, 2011, No XI-1312); Article 16(3) Polish Act of Private International Law of 4 February 2011 (O.J. 2011 No. 80, item 432; in force from 16 May, 2011); Article 2.642(3) Romanian Civil Code (Law No 287/2009), as amended by Law No 71/2011. See also Article 5a(4) of the European Parliament, Resolution of 10 May 2012 on extension of Rome II to violations of privacy and the protection of reputation (n 106).

[241] See paragraph 5.1.1.4.

[242] See European Commission, 2025 Report on the application of Rome II (n 11) 7. With respect to a conflict-of-laws rule under the revisited Rome II for defamation, including SLAPPs, see 2021 Rome II Study by BIICL (n 13) 10-11.

[243] Symeon C Symeonides, ‘Rome II and Tort Conflicts: A Missed Opportunity’ (2008) 56 American Journal of Comparative Law 197. Symeonides refers to Aristotle, Ethica Nicomachea, V. x 7 and Peter Hay, ‘Flexibility Versus Predictability and Uniformity in Choice of Law’, 226 Recueil des cours (1991-1) 281, 291.

[244] See paragraph 5.1.2.1.

[245] See Meeusen (n 85) 287. See also Veerle Van Den Eeckhout, ‘Private International Law Questions that Arise in the Relation between Migration Law (in the Broad Sense of the Word) and Family Law: Subjection of PIL to Policies of Migration Law?’ (January 20, 2013). Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2203729.