Recap of „IBA Litigation Committee Conference on Private International Law”

The challenge: International jurisdiction as a barrier to access

Online platforms such as Instagram, X or TikTok operate globally, but their users seek local legal protection. Whether German courts have jurisdiction is determined by the Brussels Ia Regulation (Regulation (EU) No. 1215/2012). It is intended to standardise international jurisdiction in civil and commercial matters – in practice, however, it increasingly determines whether effective legal enforcement is possible at all.

Three potential connecting factors determine whether affected parties can sue in Germany:

• Contractual jurisdiction (Art. 7 para. 1 a)
• Consumer jurisdiction (Art. 17 et seq.)
• Tortious jurisdiction (Art. 7 para. 2)

However, current case law and practice show that all three approaches are coming under increasing pressure.

1. Contractual jurisdiction: effective exclusivity of foreign courts

In practice, the contractual place of jurisdiction pursuant to Art. 7 para. 1 a) Brussels Ia Regulation plays a central role. It is linked to the place of fulfilment of the contractual obligation. German courts regularly consider this to be the registered office of the platform, i.e. usually in Ireland, where many large providers (Meta, X) have their European headquarters.

In addition, there are jurisdiction clauses in the general terms and conditions of the platforms that name Irish courts exclusively.

This effectively excludes the jurisdiction of German courts – regardless of where the damage occurs or where the person concerned lives.

The result:

Anyone affected by an infringement of personality rights in Germany must pursue their claims under Irish law and in English.

For many of those affected, this represents a de facto barrier to access that runs counter to the protective purpose of European procedural law.

2. Consumer jurisdiction: Narrow interpretation undermines European protection objectives

The second connecting factor – the consumer jurisdiction pursuant to Art. 17 et seq. Brussels Ia Regulation – is intended to protect the weaker contracting party. It allows consumers to sue at their place of residence if the contract (contract of use with the platform) was concluded for private purposes.

However, German courts are interpreting the term “consumer” increasingly restrictively.

For example, the Berlin Regional Court (27 O 52/23) ruled that the addition of “RA” (lawyer) to the profile name is sufficient to deny an Instagram user consumer status – even if the account was otherwise private.

This case law is in clear contrast to the line taken by the European Court of Justice (ECJ), which emphasises that mixed private and professional use of an account does not automatically exclude consumer status.

The German practice thus leads to paradoxical results:

• Professional groups that are particularly frequent targets of online attacks – journalists, activists or lawyers – are excluded from consumer protection because their profiles are considered “professional”.

This undermines the protective purpose under European law of guaranteeing access to one’s own court.

3. Tortious jurisdiction: Restrictive application and the question of the offence in the case of platform liability

The tortious jurisdiction pursuant to Art. 7 para. 2 Brussels Ia Regulation allows actions to be brought at the place of the harmful event.

At first glance, this appears to be an appropriate starting point, particularly in the case of damage to reputation or insult by a third party’s post – especially for those affected whose personal rights are violated on the internet.

However, the central question is: What can the platform be accused of?

What facts does its behaviour fulfil in order for it to be liable in tort and thus justify the jurisdiction of German courts?

According to current German case law, the mere operation of a platform is not sufficient to constitute a tortious act within the meaning of Art. 7 para. 2 Brussels Ia Regulation.

Liability only arises if the platform can be accused of active or omitted behaviour that violates a legal obligation or a legal prohibition.

In concrete terms, this means

• There is no responsibility if the platform merely provides the technical infrastructure without any breach of duty of its own.
• However, responsibility may arise if the platform does not intervene despite being aware of illegal content or refuses to delete illegal posts, although it would be obliged to do so according to the standards of fault-based liability.

Similarly, a constellation is also conceivable in which the platform deletes lawful content and this content is to be restored. Here too, the question arises as to what offence the deletion of content constitutes. In other words, the removal of content would have to constitute a violation of legal rights – for example, in the context of freedom of expression or ownership of content.

Overall, the applicability of Art. 7 para. 2 Brussels Ia Regulation therefore depends crucially on the classification of the specific behaviour of the platform. Case law tends to interpret the term “harmful act” narrowly and to set the threshold for liability high.

As a result, those affected are often referred to Irish courts, even though the damage and the legal interests concerned are located in Germany.

The result is a shift in legal protection abroad and a de facto devaluation of the tortious jurisdiction for digital infringements of personal rights.

Current trends: National restraint despite European liberalisation

While the ECJ has emphasised the idea of protection for those affected in several decisions and wants to strengthen access to courts, German lower courts are showing a tendency towards formalisation.

This development is leading to a drifting apart of European and national legal practice – with the result that Germany is becoming less important as a centre of jurisdiction for online infringements.

Legally and politically, there is an emerging demand that the principle of domicile of the affected parties must also be consistently implemented in the online sector in order to guarantee effective legal protection.

Conclusion: Need for judicial and legislative correction

Current developments show that the objective of the Brussels Ia Regulation – accessible, predictable and fair jurisdiction – is only partially achieved in the case of online infringements.

German courts are currently interpreting the provisions restrictively, which means that victims of digital infringements are increasingly being referred to foreign courts.

It is therefore necessary:

• An interpretation of the concept of consumer in conformity with European law by German courts,
• A review of the contractual doctrine of jurisdiction,
• And, in the long term, a legislative clarification that secures the victim’s place of jurisdiction in the digital space.

This is the only way to fulfil the European Union’s claim to guarantee effective law enforcement in international online disputes.