Jurisdiction not automatic in online infringement cases

In two recent decisions, the French courts have considered the issue of whether they have jurisdiction over cases involving foreign websites.

Over the past few years, the French courts have been more and more willing to rule that they have jurisdiction to hear such cases (see, eg, "Forum shopping facilitated by Paris Court of Appeal decision" and "Decision on jurisdiction in online infringement cases departs from precedent"). However, in certain cases, some appellate courts have decided that the mere fact that a website is accessible from France is, in itself, insufficient to confer jurisdiction. Rather, there must be a sufficient, substantial or significant link between the alleged infringing acts and the damage suffered in France (see, eg, the June 6 2007 decision of the Court of Appeal of Paris in Google v Axa).
Nevertheless, in most cases the French courts decided that they had jurisdiction over cases involving a foreign website whenever the claimant was a French entity. This approach was based on Article 46 of the French Code of Civil Procedure, which states as follows:
"The claimant may seize, at his choosing, in addition to the court which has jurisdiction over the place where the defendant resides:
- in tort matters, the court which has jurisdiction over the place where the wrongful act occurred or the damage was suffered."
This provision facilitated forum shopping in France for all types of situations covered by Article 46 - that is, all kinds of torts, including unfair competition and parasitism.
However, in a judgment dated January 6 2010, the Supreme Court held that the French courts had no jurisdiction over a case involving a Danish company. Sanofi Aventis France had initiated legal proceedings in France against Novo Nordisk for posting denigrating comments on its website. The Court of Appeal had decided that it had jurisdiction over the case based on Article 46 of the code, regardless of the provisions of Council Regulation 44/2001/EC on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. The Supreme Court held that the Court of Appeal should have found that it had jurisdiction to hear this case only if it was permitted to do so under the regulation.
In another decision dated January 29 2010, the Court of First Instance of Grenoble (French Alps) held that it had no jurisdiction to hear a case involving infringing images found on the website of a US company, Lila. The court ruled that, since the Internet is a universal network, a French court cannot systematically decide that it has jurisdiction to hear a case just because a website is accessible from France. It must first establish whether a sufficient, substantial or significant link exists between the website and the damage suffered in France.
In the case at hand, the court refused to find that it had jurisdiction to hear the case on the grounds that it concerned a US website offering catering services in the United States. The court found that the link between the pictures on the website and the alleged damage suffered in France was insufficient to confer jurisdiction because it was highly unlikely that French companies (and especially those located in Grenoble) would contact a US company to organize a buffet.
According to this new trend in case law, it seems that the courts are trying to limit forum shopping in France and, consequently, to avoid hearing cases that do not affect France or French residents. One may wonder whether this trend will be followed by courts in other countries that tend to attract forum shoppers.
Richard Milchior and Estelle Benattar, Granrut Avocats, Paris

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