ECJ asked to advise on jurisdiction issue concerning internet publishing

The Court of Appeal of England and Wales has asked the European Court of Justice (ECJ) to decide whether online ‘publishing’ takes place in the country where the information is technically hosted or where it is read. The High Court had previously said that a company is responsible for "making available" material where a server is based rather than where the reader accesses it, but the Court of Appeal has now asked the ECJ to clarify the law.

The case is about a dispute on the use of data from football matches. This data is published online as matches are in progress. This information is used by gambling companies, among others. Although this case is about an alleged infringement of database rights, the preliminary ruling of the ECJ can also be of consequence to copyright infringement cases. One issue that surfaced is the question which court has the legal competence to handle the case.

Football DataCo manages the data interests of the English and Scottish football leagues and accused Swiss company Sportradar and a German subsidiary company of copying its statistics. It sued the companies in April 2010 and Sportradar, which denies the allegation, filed a new suit in Germany in July. The Court of Appeal said that the UK courts have the right to hear the case over the German court because the UK case was filed first. Sportradar claimed, though, that the case should not be heard by British judges on the basis that the disputed live match information was de facto published in Austria and The Netherlands, because its servers are based there.

Football Dataco and the soccer leagues argued that internet publishing is a transmission that involves the sending and receipt of information, so that the receiving of it in the UK meant that any infringement of its database rights happened, at least in part, in the UK.

During the proceedings, it became apparent that judges could not deduct from the current state of the law whether the place where the information is sent from is the place where the alleged infringements occur. The Court of Appeal said that "it was not appropriate for [them] to form a view about this very important and difficult question", according to its ruling. The appeal chamber has asked the ECJ to rule on what the law means when a company uploads material which is protected by the EU Database Directive from country A, while this information is being seen in country B. It has asked if any infringement would exist in country A, country B, or in both countries. The preliminary ruling on this issue is expected to be delivered towards the end of 2012.

Sources: Court of Appeal of England and Wales [29-03-2011] EWCA Civ 330. Case No: A3/2010/2849 and 2947 - Football Dataco Ltd & Ors vs. Sportradar GmbH & Anor (Rev 1) and: The Register