CONCURRING OPINION OF JUDGE SILVIS

1. This case is about the alleged defamation of the applicant in a television programme received in Sweden via a satellite that was uplinked from London (United Kingdom), where editorial control also lay, at least in a formal sense. In Sweden the programme could be viewed, as the broadcasting company had intended, with a decoding device directly from the satellite (DVB-S) or by cable television, since the programme was also retransmitted in Sweden terrestrially (DVB-T) almost simultaneously. [1] It appeared impossible for the applicant to have adequate and effective access to a court in Sweden to seek redress for the alleged defamation. In Sweden private actions for defamation can be brought against the media only under the terms of the Freedom of the Press Act and the Constitutional Law on Freedom of Expression. Such claims can be pursued even if “liability under criminal law has lapsed or an action under criminal law is otherwise excluded” (FPA Ch. 11, CLFE, Ch. 8). However, as is set out in the judgment, the possibility of bringing a private action in respect of the alleged defamation was excluded in accordance with the Constitutional Law since the television programme was considered not to emanate from Sweden, the broadcast having been transmitted via a company in the United Kingdom which was deemed to have had editorial control over it.

2. It is not the Court ’ s role “to express a view on the appropriateness of methods chosen by the legislature of a respondent State to regulate a given field. Its task is confined to determining whether the methods adopted and the effects they entail are in conformity with the Convention” (see Delfi AS v. Estonia [GC], no. 64569/09, § 127, ECHR 2015). Nonetheless, when methods adopted by a High Contracting Party and the effects they entail are not in conformity with the Convention, the Court cannot avoid stepping in, even if this might touch upon sensitive constitutional issues. I do agree with the outcome of this case, but I respectfully disagree with some of the reasoning and the order in which the issues were addressed in reaching this conclusion.

3. From the point of view of the European Convention on Human Rights, the first question for the Court to ask in a case like this, even of its own motion if the Government had not raised it, is whether the applicant ’ s complaint falls within Article 1 of the Convention. The applicant is a Swedish national residing in Sweden. Does the application concern a right or freedom to be secured by Sweden within its jurisdiction as understood in the Convention? It certainly does. I find unconvincing the reasons given in paragraph 42 of this judgment for joining the jurisdiction issue under Article 1 to the merits of the complaint. The engagement undertaken by a Contracting State under Article 1 of the Convention is confined to “securing” the listed rights and freedoms to persons within its own “jurisdiction” (see Soering v. the United Kingdom , 7 July 1989, § 86, Series A no. 161). There can be no reasonable doubt, I think, that the case brought before the Court falls within the jurisdiction of Sweden within the meaning of Article 1. An attack on a person ’ s reputation surely affects a right under the Convention (Article 8) and the alleged harm done was within the territory of Sweden ( locus damni ), where the television programme was received by the public, and where the applicant, a Swedish national, had his reputation. To my mind these circumstances were more than enough for the Court to rebut the Government ’ s argument of a lack of jurisdiction under the Convention before addressing the merits of the complaint concerning Article 6.

4. I do not think that establishing jurisdiction under Article 1 of the Convention alone should always be conclusive for obliging a respondent State to grant access to a court within its own territory. This is a matter where distinctions can be made. Hence, Article 6 § 1 will be complied with if the person concerned had available to him reasonable alternative means to protect effectively his rights under the Convention (see Waite and Kennedy v. Germany [GC], no. 26083/94, §§ 68-74, ECHR 1999-I; Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 48, ECHR 2001-VIII; and Chapman v. Belgium (dec.), no. 39619/06, §§ 51-56, 5 March 2013). If litigation before an alternative forum abroad, determined in accordance with private international law, would not be too burdensome for the applicant concerned, this could (at least in theory) also be an acceptable way of securing his rights and freedoms. In the present case the Swedish courts indicated that the applicant could litigate in the United Kingdom. Supposing the English courts were to apply their domestic law, the standard of proof in the defamation case would differ. [2] In Sweden the truth of statements made is not incompatible with defamation, whereas in the United Kingdom it would be, but it may be doubtful whether that disadvantageous aspect for the applicant would fall within the complaint concerning the right of access to court.

5. It is a standard rule that courts in the member States of the European Union have jurisdiction in civil cases in the place where the defendant has his residence. According to European private international law, the choice of forum in a trans-border tort case, in so far as is relevant here, is regulated by the Brussels I Regulation, which (also) includes derogations from the standard rule. In Shevill and Others (Case C-68/93), eDate Advertising and Martinez (Joined Cases C-509/09 and C ‑ 161/10) and Wintersteiger ( Case C ‑ 523/10) the European Court of Justice has allowed the courts assuming jurisdiction in a member State in accordance with the “place where the harmful event occurred” or where the centre of the alleged victim ’ s interests is based to hear an action for damages for harm caused by the publication of a defamatory newspaper article or an Internet publication; the same would apply, it may be assumed, to a broadcast via satellite. The problem in the case in hand is thus certainly not one of European Union law on jurisdiction. Under the Convention, whether a domestic court can exercise jurisdiction over a defendant– like the broadcasting company in the United Kingdom in the present case – located or domiciled in a country other than the High Contracting Party against which the application is directed, in relation to an alleged offence or civil wrong committed via satellite or over the Internet, is primarily a question to be answered by the courts by applying domestic law and hence in conformity with their international obligations, including the relevant principles of European private international law. Jurisdiction in this domain of forum choice has a different meaning from that contained in the concept of “jurisdiction” in Article 1 of the Convention.

6. Although human rights issues are relevant to the determination of jurisdiction (forum) choices under European private international law, the right of access to court under Article 6 of the Convention in a specific High Contracting Party is distinguishable from this. The right of access to court may narrow the possibilities of choice of jurisdiction, favouring one particular choice over the others, but it may also dictate that jurisdiction should be allowed where other grounds would perhaps not suffice. Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way Article 6 embodies the “right to a court”, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect only (see Golder v. the United Kingdom , 21 February 1975, § 36, Series A no. 18). It is important that access to court, when assessed as a right established under Article 6 of the Convention, is “practical and effective” (see Bellet v. France , 4 December 1995, § 38, Series A no. 333-B). For the right of access to be effective, an individual must “have a clear, practical opportunity to challenge an interference with his rights”. The fact of having access to domestic remedies, only to be told that one ’ s actions are barred by operation of law, does not always satisfy the requirements of Article 6 § 1 (ibid., § 36; see also Nunes Dias v. Portugal (dec.), no s. 2672/03 and 69829/01, ECHR 2003 ‑ IV) . In the specific circumstances of a particular case, the practical and effective nature of this right may be impaired, for instance by the prohibitive cost of the proceedings in view of the individual ’ s financial capacity or by the excessive amount of security for costs in the context of an application to join criminal proceedings as a civil party (see Aït-Mouhoub v. France , 28 October 1998, §§ 57-58, Reports of Judgments and Decisions 1998 ‑ VIII, and also García Manibardo v. Spain , no. 38695/97, §§ 38-45, ECHR 2000 ‑ II) or excessive court fees (see Kreuz v. Poland , no. 28249/95, §§ 60-67, ECHR 2001 ‑ VI; Podbielski and PPU Polpure v. Poland , no. 39199/98, §§ 65-66, 26 July 2005; and Weissman and Others v. Romania , no. 63945/00, § 42, ECHR 2006-VII (extracts); see also, conversely, Reuther v. Germany (dec.), no. 74789/01, ECHR 2003-X).

7. Freedom of expression cannot outweigh in a general manner, without balancing the opposing interests in the case in hand, the right of an applicant claiming to be a victim of a damaged reputation to have practical and effective access to court. In normal circumstances the option to litigate in London (United Kingdom) cannot be considered a practical alternative for a Swedish resident alleging damage done to his reputation in Sweden. The connections to Sweden, as enumerated in paragraph 73 of the judgment, are overwhelming in this case. To my mind some of these connections, such as the nationality of the anchorman and the location of the sponsoring companies ’ activities, as well as the alleged place of the applicant ’ s conduct, have no bearing on the applicant ’ s right of access to court in Sweden. It would have been enough, I think, to establish that the alternative of initiating a private action in a United Kingdom court, for an individual residing in Sweden alleged to have suffered an attack on his reputation in Sweden, was not practical for the applicant from the point of view of geographical distance, legal resources and costs.

[1] See, on the underlying thematic problem, David I. Fisher, Defamation via Satellite: A European Law Perspective , The Hague (1998).

[2] It is well known that Regulation No . 864/2007 on the law applicable to non-contractual obligations (Rome II) excludes from its scope “ non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation ”. See on this point Aaron Warshaw, “Uncertainty from Abroad: Rome II and the Choice of Law for Defamation Claims”, 32 Brook. J. Int'l L. (2006). Available at: http://brooklynworks.brooklaw.edu/bjil/vol32/iss1/7 . In Sweden the truth of statements made is not incompatible with defamation, whereas in the United Kingdom it would be.