Private International Law Online – Internet Regulation and Civil Liability in the EU

By Dr Tobias Lutzi

Oxford University Press, September 2020

219 pages

ISBN 978-0-19-886526-1

On the occasion of its 40th anniversary, on 17 December 2019, the ICC Institute of World Business Law awarded its biennial ICC Institute Prize to the doctoral thesis Private International Law Online – Internet Regulation and Civil Liability in the EU. ¹

The author, Tobias Lutzi, specializes in private international law and is a Research Fellow at the Institute for Private International and Comparative Law, University of Cologne, Germany.

For many years the discipline of private international law (PIL) seemed to have little to offer the internet. The abiding impression was that the internet languished in the PIL ‘too difficult’ tray. The challenges presented by the inherently cross border internet were left to harmonisers, regulators and, latterly, international human rights specialists, vying – with predictably little success – to design or derive uniform international substantive rules for the online world. The beguiling narrative has long been that an international medium such as the internet requires international, implicitly uniform, substantive solutions.

The challenge for PIL is all the greater when so many issues thrown up by the internet arise in areas where national laws not only differ greatly but involve domestic public policy considerations that PIL has always sought to avoid. PIL has traditionally prided itself on a rigorously agnostic approach that, by applying objective connecting factors, seeks to avoid making value judgments about national laws (confining public policy to a safety net exception).

Meanwhile, national courts have attempted to apply physical world jurisdiction and applicable law rules to the delocalised, dematerialised environment of the internet in an inevitably ad hoc manner.

This monograph by Dr Tobias Lutzi, based on his doctoral thesis, sets out to demonstrate that PIL has much to offer the internet. On reflection, discovering that PIL can bring order to a cross-border medium entangled in a mesh of conflicting national laws should not come as a surprise, since the very goal of PIL (at least in its Savigny version – Dr Lutzi also describes some alternative visions of PIL) is not to bring uniformity to the substance of national laws, but to acknowledge that they and their underlying legal systems differ and, by extension, to minimise friction between them.

The traditional PIL approach, which Dr Lutzi endorses, is to treat the substantive content of national law as, for the most part, a black box into which we should not peer, and to look instead for connecting jurisdictional and applicable law factors in the events giving rise to the case rather than in the scope of potentially applicable law. That, perhaps, also explains why PIL has for so long found the internet so difficult to grapple with, since events in online cases tend to be not only dematerialised but delocalised, and often geographically dynamic rather than static. The search for a set of connecting factors that provides certainty and also accords with the reasonable expectations of all concerned (both are themes that Dr Lutzi emphasises) is a daunting quest.

Dr Lutzi has risen to the challenge impressively. His book is clear, cogent, closely argued and rigorously worked through. His willingness to test his arguments and proposals by acknowledging and addressing the strongest counter-arguments is especially striking. From a readability point of view, prefacing each section with a summary of each of the points to be addressed is particularly helpful.

The summit of the endeavour is a detailed proposal (including a draft EU legislative instrument) for a new approach to both jurisdiction and applicable law within the EU, limited to online activity (use or pursuit of an information society service). In summary, the proposal applies party autonomy, country of origin and targeting in various combinations to suit different kinds of liability and relationship between plaintiff and defendant. For tort jurisdiction, it adds a reined-in version of the Recast Brussels Regulation Article 7(2) ‘event giving rise to damage’ basis. For applicable law, it proposes an ‘escape clause’, applicable in some circumstances where there is a manifestly closer connection with a country different from that indicated by the default rule. The various rules and exceptions are ordered in hierarchies.

Dr Lutzi intends that the escape clause should enable account to be taken of the law chosen in a contract between user and platform (for instance in a dispute between users). That is complemented by a novel provision that would enable factual account to be taken of ‘rules of conduct’ in assessing the conduct of the person alleged to be liable (for instance in a dispute between a user and non-user third party). Those would include rules and standards of an online platform, where the claim is closely connected to the platform. This idea builds on discussion earlier in the book of the extent to which users may regard community rules set by a platform as more significant than any single national law; as well as consideration of the significance of ‘private ordering’ by platforms and its relationship to applicable national laws.

Overall, Dr Lutzi aims to reduce the multiplicity of potential jurisdictions that currently stems from a series of CJEU decisions, and to align applicable law and jurisdiction rules more closely with each other. He acknowledges that his specific proposals are less likely to be acceptable in the absence of the degree of substantive harmonisation found in an internal market area such as the EU. This is one of several places in which the practical political linkage between substantive law and rules of PIL is recognised.

The proposals are carefully built on the book’s preceding analysis: early approaches to internet law, a historical introduction to private international law and differing theories about its function, current EU PIL framework and caselaw, and some international comparisons. The book concludes with a section applying the proposed rules to a selection of well-known CJEU cases.

The PIL ‘black box’ approach tends to assume that when we open the box we will find no territoriality components in the substantive law, such as would render the applicable law incapable of being applied to acts outside the territory of the country whose law is to be applied. However, that is not always the case. Some torts are inherently territorial (e.g. registered rights), some may (or may not) be expressed in national legislation to be territorial, and some may have territorial aspects established in caselaw (e.g. publication within a territory).

It is a strength of the book that Dr Lutzi clearly addresses the distinction between rules of jurisdiction/applicable law and territorial components of substantive law. That also raises the question of whether – and if so, how – a PIL instrument can insulate itself from potentially territorial aspects of substantive law.

Dr Lutzi excludes inherently territorial registered intellectual property rights from his proposal. He also argues that copyright should not be regarded as inherently territorial. However, there would still seem to be a problem if an EU member State’s copyright law legislated infringement in expressly territorial terms (similarly to UK copyright legislation).

The jurisdiction proposals are confined to the circumstances in which an EU court should take jurisdiction over a case at the outset. So, although the book refers in passing to cases in which the issue was whether a court seized with jurisdiction should exercise that jurisdiction extra-territorially, it does not attempt to resolve that vexed topic. Perhaps that might be for a second edition. In any event, at a time when there is a noticeable tendency for nation States to assert the superiority of their national laws and abandon jurisdictional self-restraint, Dr Lutzi’s book is an excellent contribution that deserves to ignite greater interest in the online role of PIL.

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