processor for the damage suffered”, it is silent on the issue of the law applicable to
the ensuing claims.
To be sure, in its Resolution of 10 May 2012 on the amendment of Regulation
(EC) No. 864/2007,
171 the European Parliament requested the Commission to
submit, on the basis of point (c) of Article 81(2) of the Treaty on the Functioning
of the European Union, a proposal designed to add to the Rome II Regulation a
provision on the law applicable to non-contractual obligations arising out of violations of privacy and rights relating to personality, in respect of which it
recommended the following text:
1. The law applicable to a non-contractual obligation, arising out of a violation of privacy or
rights relating to the personality, including defamation, shall be the law of the country in
which the most significant element or elements of the loss or damage occur or are likely to
occur.
However, the law applicable shall be the law of the country in which the defendant is
habitually resident if he or she could not reasonably have foreseen substantial consequences
of his or her act occurring in the country designated by paragraph 1.
[. . .].
This recommendation has so far not been enacted. In the EU, the matter is thus
left to domestic conflict of laws rules, which differ considerably in this respect.
172
Although many Civil Law jurisdictions traditionally opt for the applicability of
the lex loci delicti commissi in respect of tort liability,
173 the issue arises as to where
the wrongful act should be held committed whenever—as is often the case in respect
of the unlawful processing of personal data through the Internet—the place of the
wrongful activity and that of its harmful effect differ.
Portuguese Private International Law
174 provides a solution for this type of
situations, according to which:
If the injurer is considered liable by the law of the State where the injury was inflicted but not
by the law of the place where the conduct causing the damage occurred, the former law
applies, provided that the injurer should have foreseen the occurrence of an injury in that
country as a consequence of his/her act or omission.
175
171 Published in the OJEU, C 261, of 10 September 2013, pp. 17 ff.
172 See, for a comparative analysis, Kuipers (2017), pp. 1350 ff.
173 Such is the case, e.g., of Greek, Portuguese, and Spanish Private International Law: see,
respectively, articles 26, 45(1) and 10(9) of the Civil Codes of those countries.
174 See article 45(2) of the 1966 Civil Code and, on the applicability of this provision to the
situations referred to in the text, Moura Vicente (2005), pp. 307 ff.; Dias Oliveira (2011),
pp. 395 ff.; and de Lima Pinheiro (2015), pp. 502 ff.
175 A similar rule can be found in article 133(2) of the Swiss Private International Law Act 1987,
which states: “If the injury occurs in another State than the State, in which the act that caused injury
arose, the law of that State shall be applicable if the tortfeasor should have foreseen that the injury
would occur there”. The same happens with article 17 of the Japanese General Law on the Application
of a Law, pursuant to which: “The formation and effect of a claim arising from a tort shall be governed
by the law of the place where the result of the wrongful act occurred; provided, however, that if the
occurrence of the result at said place was ordinarily unforeseeable, the law of the place where the
wrongful act was committed shall govern”. See the Japanese National report, Sect. 4.4.
38
D. Moura Vicente and S. de Vasconcelos Casimiro
the ensuing claims.
To be sure, in its Resolution of 10 May 2012 on the amendment of Regulation
(EC) No. 864/2007,
171 the European Parliament requested the Commission to
submit, on the basis of point (c) of Article 81(2) of the Treaty on the Functioning
of the European Union, a proposal designed to add to the Rome II Regulation a
provision on the law applicable to non-contractual obligations arising out of violations of privacy and rights relating to personality, in respect of which it
recommended the following text:
1. The law applicable to a non-contractual obligation, arising out of a violation of privacy or
rights relating to the personality, including defamation, shall be the law of the country in
which the most significant element or elements of the loss or damage occur or are likely to
occur.
However, the law applicable shall be the law of the country in which the defendant is
habitually resident if he or she could not reasonably have foreseen substantial consequences
of his or her act occurring in the country designated by paragraph 1.
[. . .].
This recommendation has so far not been enacted. In the EU, the matter is thus
left to domestic conflict of laws rules, which differ considerably in this respect.
172
Although many Civil Law jurisdictions traditionally opt for the applicability of
the lex loci delicti commissi in respect of tort liability,
173 the issue arises as to where
the wrongful act should be held committed whenever—as is often the case in respect
of the unlawful processing of personal data through the Internet—the place of the
wrongful activity and that of its harmful effect differ.
Portuguese Private International Law
174 provides a solution for this type of
situations, according to which:
If the injurer is considered liable by the law of the State where the injury was inflicted but not
by the law of the place where the conduct causing the damage occurred, the former law
applies, provided that the injurer should have foreseen the occurrence of an injury in that
country as a consequence of his/her act or omission.
175
171 Published in the OJEU, C 261, of 10 September 2013, pp. 17 ff.
172 See, for a comparative analysis, Kuipers (2017), pp. 1350 ff.
173 Such is the case, e.g., of Greek, Portuguese, and Spanish Private International Law: see,
respectively, articles 26, 45(1) and 10(9) of the Civil Codes of those countries.
174 See article 45(2) of the 1966 Civil Code and, on the applicability of this provision to the
situations referred to in the text, Moura Vicente (2005), pp. 307 ff.; Dias Oliveira (2011),
pp. 395 ff.; and de Lima Pinheiro (2015), pp. 502 ff.
175 A similar rule can be found in article 133(2) of the Swiss Private International Law Act 1987,
which states: “If the injury occurs in another State than the State, in which the act that caused injury
arose, the law of that State shall be applicable if the tortfeasor should have foreseen that the injury
would occur there”. The same happens with article 17 of the Japanese General Law on the Application
of a Law, pursuant to which: “The formation and effect of a claim arising from a tort shall be governed
by the law of the place where the result of the wrongful act occurred; provided, however, that if the
occurrence of the result at said place was ordinarily unforeseeable, the law of the place where the
wrongful act was committed shall govern”. See the Japanese National report, Sect. 4.4.
38
D. Moura Vicente and S. de Vasconcelos Casimiro