Because of the internet, personality rights are increasingly infringed across national borders. Thus, international private law is gaining in importance, whereas recently, deepfakes via artificial intelligence pose an existential threat for one’s identity. The law must adapt to these technological advances and provide legal certainty. However, the divergent and diffuse determination of the place of action and the place of injury of personality rights infringements under the German and European international private law provisions does not currently stand up to this challenge. In consequence, the matter must be viewed in a new light.

1. Introduction

Nowadays, artificial intelligence can be used by almost everybody to create deceptively real deepfakes of actual people within seconds.1 Once such a false image or video has been created, it can be spread around the world in an instance through the internet with only the pressing of a few buttons. It is clear that this poses an existential threat to personality rights; at the same time, it is obvious that the law must offer protection. However, the question is, which law? This should be answered by private international law. Because art. 1(2)(g) of the Rome II Regulation excludes violations of privacy from its scope of application, the decisive section is s. 40 EGBGB (German Introductory Act to the Civil Code).2 This so-called Deliktsstatut primarily ties into the rather seldom case of a common habitual residence and the place of action as well as the place of injury, whereas the latter may only find application through the choice of the infringed party.3 The problem is that personality rights are an abstract legal concept and thereby difficult to locate.4 In consequence, the opinions and judgments on the determination of these places are manifold and lead to a legal uncertainty and inconsistency – which this article aims to remedy.

2. Place of Action

By definition, the place of action is located where the tortfeasor was at the time of committing the tort.5 In the case of an omission, the place of action lies where an infringing act presumably will take place.6 However, in both cases, mere preparations are excluded.7 Thus, the first problem becomes apparent: What separates the tortious act from a preparation? Another problem is the place of action when multiple people take part in the violation of the privacy rights, often on multiple levels of a media corporation, and the determination of the place of action in view of the technical specialities of the internet.8

2.1. Separating the Tortious Act from the Preparation

The separation of the tortious act from a preparation is disputed. On one hand, one may individually assess each action separately according to the law of the place in which the action took place.9 If this leads to the establishment of multiple preparations, the most favourable legal system for the aggrieved party should apply.10 However, this view seems impractical and leads to reduced proceedings efficiency; without there being a specific need for this approach, a highly complex and divided legal examination occurs.11 It is rather convincing to view the tortious act as the one with which the injuring party loses all control of the danger for the personality rights, simultaneously constituting the place of action.12 In consequence, only one place of action can be ascertained which is practical and efficient; the same principle also applies for torts that happen over an extended period of time – as soon as the danger to the personality right definitively leaves the domain of the tortfeasor, the preparation stage ends and the place of action is determined.13

2.2. Infringements Involving Multiple Tortfeasors on Multiple Levels

Continuing the thought of separating the tortious act from the preparation, the question arises, how the place of action should be assessed if multiple people are involved in the violation – often on multiple levels of a media corporation and even in different locations.

Regarding the previous ascertainment, the printing of press media is a mere preparation which does not constitute the place of action.14 In principle, the discussion revolves around two possible locations: the place in which the media appears (“Erscheinungsort”)15 and the seat of the company.16 Usually, both approaches lead to the same result, as media generally appears at the corporation’s seat.17 However, the place of appearance does not provide the needed legal certainty, as it is too indeterminate.18 Often, it is argued that in order to avoid the danger of companies moving their seat to states with more favourable legal systems, the real seat19 of the corporation must be assessed, where the personality right infringement is ultimately decided upon.20 This is consistent with the already established approach whereby a preparation results in a tortious action once control over the personality right infringement is surrendered. This definite loss of control happens at the corporation’s seat where the decision to publish is made.21 This terminology is more favourable, as it is not as indefinite as a real seat.22

2.2.1. Controversy about the Place of Action on the Internet

According to an older approach, the location of the server to which content is uploaded should constitute the place of action.23 However, the server location can be freely chosen and enables the infringing party to choose a legal system which is most favourable to them.24 Furthermore, switchboard servers may also not be seen as the place of action, as they only forward information instead of acting on their own.25 Another approach views the place of action as the one where the information is fed into the internet.26 This approach is favourable as the feeding of information into the World Wide Web corresponds to the reproachable focus of the tortious act; it is the final decision towards the personality rights infringement because after the data is transported onto the internet, the further events are only under the influence of technology.27 However, this place is not always the place of upload.28 There are cases in which content must be manually activated after the upload; thus, the relevant place of action must be the place where content reaches the internet in a way in which others are able to access the content in the same course.29 In conclusion, even this place corresponds to the prior finding of the place of action being located where the control over the endangerment to personality rights is indefinitely lost.30

2.2.2. Reversed Burden of Proof

As the World Wide Web is anonymous,31 proofing where content has been fed into the internet is an almost impossible task.32 In conclusion, an approach has been introduced into the debate: the place of action is refutably presumed to be the place of one’s habitual residence and, in the case of legal persons, the location of the head office.33 This is convincing as anonymity can be easily achieved while using the internet, thus concealing the place of the feeding of information into the internet.34 Otherwise, the tying into the place of action would practically be neutralised, as it could de facto not even be assessed.35 On the other hand, first (likely flutily) trying to assess the place where information is conceptualised and dispatched before this presumption shall apply36 should be refused, as it is not efficient enough for proceedings.37

2.3. Interim Conclusion

In conclusion, the place of action universally is the place where the control over the endangerment of personality rights is definitively lost. If content is published via the internet, this is refutably presumed to be the habitual residence of the infringing party if it is a natural person or the head office of a legal person, respectively.

3. Place of Injury

By definition, the place of injury lies where there has been direct damage to a legal asset protected by tort law.38 When returning to the problem of personality rights being an abstract concept, one may not assume that there is no place of injury at all, as violations of personality rights do have concrete and tangible adverse effects for people.39 However, the internet aggravates the matter, as personality rights infringements can spread across multiple legal systems more easily, thereby creating the illusion that multiple places of injury come into consideration.40 However, one must first differentiate between two different tort variations: a tort over distance and a scattering tort.

3.1. Tort over Distance

When personality rights infringements are only distributed in one different state, thus separating the place of action from the place of injury (tort over distance)41, the place of injury is located where the infringing content is taken note of.42 One approach proposes that the place of injury should, however, be the place of the usual acknowledgement of the content in order to avoid a random localisation.43 This must be countered with the argument that such coincidental cases are treated in art. 41(1) EGBGB, where the legal system of the state becomes applicable with which there is a significantly closer connection than with the legal system of the state that should have been applicable according to the art. 38 to 40(2) EGBGB.44 In consequence, the actual place of acknowledgement is significant.

On the internet, a problem arises. Actual accesses of content are manipulable and thus unreliable.45 Therefore, the mere availability must suffice for the determination of the place of injury.46 Yet, it is impossible to restrict the access to data to just one state – the content is always available worldwide, which cannot even be prevented by geo-blocking.47 As a result, the concept of a tort over distance is unthinkable on the internet. The distribution always spans across a multitude of states.

3.2. Scattering Tort

When personality rights infringements are spread across multiple states (scattering tort)48, the same principle still applies: the place of infringement lies where content is acknowledged,49 or – on the internet – is accessible. This may at first seem sprawling;50 however, the general consensus is that the assessment of the place of injury requires a restriction anyway because there is a multitude of possible places of injury in the global world leading to incalculable liability risks.51 However, it is highly disputed how this restriction shall look like.

Before giving an overview of the different approaches and their evaluation, there is something important that shall be realised: It is generally favourable that the international jurisdiction runs parallel to the applicable state legal system because then the courts can make decisions based on their well-known lex fori.52 While this principle may not be applicable absolutely, the literal wording of the provisions regarding the tying in to specific places of the ZPO (German Code of Civil Procedure), of the Regulation on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, and of the EGBGB are so similar that the same results must result therefrom.53 Therefore, the dispute around the assessment of the place of injury often orients itself around the international jurisdiction parallel to art. 40(1)(2) EGBGB and is treated uniformly in this article.54

3.2.1. Restriction of Intended Distribution

First, there is an approach assessing the place of injury as the location in which content can be distributed as intended.55 Sometimes, in the context of the internet, this was also denoted as the focus of content towards certain states.56 This idea, however, is entirely rejected by the German Federal Court (BGH) on the internet.57

3.2.2. Restriction of the Aggrieved Party being known

In the matter of Shevill, the European Court of Justice ascertained that the place of injury by the spreading of content via the press may only lie in states where the aggrieved party is already known.58 Despite some uncertainties about whether this jurisprudence is continued in the eDate decision,59 the argument of an already existing reputation on site is explicitly revisited in the case of Bolagsupplysningen.60 In parts of the literature, this approach is combined with the additional previous demand that the place of injury may only lie in states in which the content was deliberately distributed to.61 A similar, however, not clearly categorizable approach is pursued by establishing the place of injury in the state in which the aggrieved party usually resides in.62

3.2.3. Mosaic Theory and Centre of Interest

The European Court of Justice has developed the mosaic theory, focused mainly on procedural law.63 In the case of Shevill, the court has set forth that national courts have jurisdiction over the partial damages the aggrieved party has suffered in their respective state through personality rights infringements via analogue media.64 The same principle is generally also applied for personality rights infringements on the internet.65 However, because this procedure leads to sprawling jurisdictions as a result of the enhanced online distribution methods, there is also one court with jurisdiction over the entire damage in the state, in which the injured party has their focus of interest.66 Usually, this state is the one where this party habitually resides if there are no contradictory indications, like a professional practice in another state, for instance.67

In the Bolagsupplysningen decision, the European Court of Justice substantiated that the centre of focus for legal persons generally lies where the majority of the economic activity is conducted and where the legal person enjoys their reputation in business transactions as a consequence.68 Furthermore, the court clarified that only claims for damages are dividable, whilst an action for removal or rectification is not and thus must be assessed by the court that also has the abovementioned jurisdiction to decide about the claim for the entirety of the damages.69

The most recent modification of the mosaic theory took place in the Mittelbayerischer Verlag matter: in order for a singular court to possess jurisdiction over the claim for damages as a whole, the aggrieved party has to be at least indirectly identifiable through the personality rights infringement; otherwise, the injuring party could not calculate the place in which they could be sued in a reasonably legally secure manner.70

Recently, this approach is modified in parts of the literature by using the centre of interest as only a partial aspect for the assessment of the court with uniform jurisdiction, whereas the decision should individually be based upon all of the case’s circumstances.71

3.2.4. The Place of the Collision of Interests

As previously assessed, the German Federal Court (BGH) used the criterion of the intended distribution to establish the place of injury for personality rights infringements of the press without transferring this thought to violations on the internet. Instead, the court argues that the necessity for the jurisdiction of a German court pursuant to s.32 ZPO (German Code of Civil Procedure) is that there exists an extended domestic reference of the matter.72 That would be the case if the aggrieved party’s interests of having their personality rights uninjured and the injuring party’s interests of their freedom of expression and presentation on the internet collide in Germany in the specific case.73 In consequence, the German Feder Court (BGH) takes a different path than the European Court of Justice’s mosaic theory.74 Meanwhile, other German domestic courts have followed the approach of the place of the collision of interests.75

According to a nearly identical approach, a modified commercial effect is needed for the jurisdiction; such an effect is thereby achieved once the personality rights possibly collide, e.g., with the freedom of expression or the freedom of the press in the respective state.76

3.2.5. Place of Focus and Place of Damage-Focus

Furthermore, the term of the place of damage-focus (“Schadensschwerpunkt”77) was introduced into the discussion. Through this term and similar conceptions like the place of focus (“Schwerpunktlösung”78), the place of success-focus (“Erfolgsschwerpunkt”79), or the place of the focus of the success (“Schwerpunkterfolgsort”80), there is a danger of a confusion with the different terms. In parts of the literature, the European Court of Justice’s place of the centre of interest is denoted with the terms ‘place of success-focus’ (“Erfolgsschwerpunkt”) and ‘place of the focus of the success’ (“Schwerpunkterfolgsort”).81

According to the approach about the place of focus (“Schwerpunktlösung”), the place of injury lies where the aggrieved party habitually resides and where the content is distributed to as intended or where the injuring party must reckon with the retrieval of the information.82 Thus, this approach is a combination of some previously discussed views.

Lastly, the approach about the place of the damage-focus (“Schadensschwerpunkt”) ties into the case law of the European Court of Justice but does not use the place of centre of interest, rather the place of the damages-focus.83 This location lies where the violation of the personality rights has its focus.84

3.2.6. Place of ex-ante Objective Centre of Interest

Recently, a novel approach was introduced by Bizer, whereby the legal system of the state should be applicable in which the greatest interest in the personality rights infringing content can objectively be expected; if this place cannot be assessed or this interest lies in multiple states to the same extent, the principle of the centre of interest applies; if even then, the place of injury cannot be established, only the place of action should be decisive.85 Meanwhile, there should be no right to choose between the place of action and the place of injury.86 However, the only real innovation with this approach is the first of these three steps. The greatest expectable interest in the personality rights infringing content should be assessed from the viewpoint of an objective third-party person with knowledge of all individual circumstances before the information is spread (ex-ante).87 Indications for this assessment are the choice of language in the infringing material,88 the content and the context of the publication89 and possible previous conduct of the aggrieved party.90 The latter particularly includes cases in which the injured person has established a geographical link to another state beforehand.91

3.2.7. Positioning on the Approaches

In order to assess which approach to follow, it must be clear that there is a divergence between the treatment of analogue and digital personality rights infringements as well as a divergence between the approach of the European Court of Justice and the German Federal Court of Justice (BGH).

If analogue and digital personality rights violations were, however, assessed differently, problems would arise once media is published in both manners at once: the same individual content.92 There are no reasonable grounds for this.93 In contrast, this distinction is remote from the legal practice and makes decisions difficult.94 Because the convergence of analogue and digital distribution has advanced so much95 and the establishment of which exact medium has caused the damage is becoming increasingly difficult,96 only a uniform establishment of the place of injury is appropriate.97 The only (minor) difference that remains is that analogue personality rights infringements must be taken note of, whilst for digital violations the mere accessibility suffices because this differentiation is technically mandatory.

From the divergence of the European Court of Justice and the German Federal Court (BGH) the problem arises that the jurisdiction of courts differs according to which set of rules applies – the Regulation on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters or the ZPO (German Code of Civil Procedure).98 Justifying this difference only because of the varying legal sources is difficult.99 Furthermore, both courts follow the same approach to have one court with jurisdiction over the entire quantum of damages that is as close to the matter as possible.100 In consequence, the assessment of the place of injury should be uniform between both sets of procedural rules.101

As a result, a uniform establishment of the place of injury is essential. The various approaches mostly have different criteria that are partially combined. To make a decision on the best-suited approach, each of these criteria must first be judged.

First is the factor of the intended distribution. This is especially problematic against the background of the virtually uncontrollable spreading of content on the internet; once something has been uploaded, there is no possibility to restrict the distribution to certain countries – the content is always accessible internationally.102 Also, modality of the distribution cannot assess the success of the injury of the personality rights infringement – the latter is only established through the accessibility of the content.103 Lastly, the manner of the spreading only lies in the hands of the aggrieved party that would be favoured one-sided via this criterion, as they could influence the place of jurisdiction themselves.104 Thus, this approach is not convincing.

Next, the recognisability of a person is used as a necessity for a personality rights infringement. However, the problem is that people often only become known because of the violations themselves;105 a poor impression of a person can also originate if one does not know the person beforehand.106 All of these cases would be excluded from the assessment of the place of injury even though they are a clear case of a personality rights infringement.107 In conclusion, this aspect cannot convince either.

Next, tying into the habitual residence of the aggrieved party is discussed. International private law, however, always aims to find the legal system applicable, which is nearest to the matter in controversy.108 The habitual residence may often come close to this goal but surely does not always deliver the desired outcome.109 Establishing this link without exception is therefore too strict and thus cannot convince.110

As a result, the controversy is centred around four approaches – the mosaic theory with the centre of interest, the place of the collision of interests, the place of the damage-focus (“Schadensschwerpunkt”) and the place of the ex-ante objective centre of interest. All of these have in common that there is a singular court with uniform jurisdiction over the entirety of the claims. Merely the assessment of which court this should be is disputed. This shall be established with the aim of finding the court closest to the matter111 and having legal security in order to create a foreseeable jurisdiction across borders.112

With regard to the place of the damage-focus (“Schadensschwerpunkt”), enormous problems arise; as it is possible to manipulate accessibility statistics, assessing where an abstract damage-focus lies is too legally uncertain.113

The problem with focusing on an ex-ante objective centre of interest originates from the fact that this place should be assessed from a timepoint in which publication has not happened yet (ex-ante).114 If the actual predominant acknowledgement of the content turns out to happen in a different place than previously expected, the approach does not lead to a result which is close to the matter. Furthermore, there are cases in which publications simply do not possess a link to a certain place; then, one cannot even localise the aforementioned place.115 Thus, this approach shall be rejected.

If one were to find the place of the collision of interests as decisive like the German Federal Court (BGH), it becomes evidently questionable where that place should lie. Not only does one have to localise the interest of all parties as a first hurdle,116 subsequently, one also must answer where the collision of those happens – the term of the collision of interest is conceivably without contours and therefore legally uncertain.117 One cannot even foresee if there are multiple places at once where a collision of interests can occur.118 In consequence, this approach shall also be rejected.

Using the centre of interest of an identifiable aggrieved party is the most legally certain approach of all.119 This place is usually located at this party’s habitual residence which assessed easily; if that should not be the case, also clear indications like one’s professional practice are decisive.120 Even if the criterion of the centre of interests is only regarded as part of a necessary individual consideration of all circumstances to determine the court with uniform jurisdiction, this cannot be followed, as this leads to a loss of certainty. Even if there were certain criteria for the consideration,121 this leads to a less foreseeable case-by-case decision.

Furthermore, the injured party experiences the adverse effects of the personality rights infringement the most at their centre of interest.122 The reason for this is that the aggrieved party is most rooted in society at this place.123 If a bad reputation results from the personality rights infringement, this is most noticeable in a person’s social environment at their centre of interest.124 As a result, this approach also delivers the results that are the closest to the matter. Furthermore, the court at the centre of interest may best assess the damage.125

Of course, this approach may create the appearance of a one-sided consideration of the injured party’s interests.126 However, the favouring of the aggrieved party is in no way excessive but rather restricted; for the establishment of a uniform jurisdiction at the centre of interest, the aggrieved party must at least be indirectly identifiable via the personality rights infringement.127 This in return leads to the jurisdiction being foreseeable for the defendant side, as they know who can be identified through their content and who can instigate proceedings as a result thereof.128

Ultimately, the last remaining question is the approach of courts having jurisdiction over only part of the damages according to the mosaic theory. The reasoning behind this approach is to prevent forum shopping.129 The decisive disadvantage, however, is that this method is highly impractical and therefore shall be rejected.130 The mosaic theory especially leads to problems with calculating the quantum of the partial damages and leads to an inefficient amount of procedures, including each individual problems like the lis pendens and res iudicata.131 Finally, the objection that this way, some courts have jurisdiction without any closer connection to the personality rights infringement is also justified.132 As a result, the discussion about the place of injury revolves more and more only around the uniform jurisdiction as of its practicability.133

3.3. Interim Conclusion

In conclusion, the place of injury for personality rights infringements lies where content is acknowledged. For scattering torts, the same principle applies – with the example of the internet, where the mere accessibility of information suffices. However, the place of injury may only be where the aggrieved party has their centre of interest.

4. Conclusion and Outlook

One thing is certain: the law must adapt to the technological developments and the new dangers for personality rights through artificial intelligence by providing a legally certain assessment of the place of action and the place of injury. As a result, it is convincing that the place of action lies where the control over the endangerment of personality rights is definitely surrendered. The place of injury is the place in which content is acknowledged or is accessible on the internet. In the case of a scattering tort, the place of injury may, however, only be located at the centre of interest of the aggrieved party.

In the future, it remains to be seen how the European Court of Justice and the German Federal Court of Justice (BGH) will develop the case law in this regard and whether infringements of personality rights will even be harmonised within the framework of the Rome II Regulation. After all, Europe-wide harmonisation is the most suitable means of ensuring legally secure uniformity.

• 1. As an example, zdfheute, “Wie gefährlich sind Audio-Deepfakes?”, https://www.zdf.de/nachrichten/wissen/audio-kuenstliche-intelligenz-deep....
• 2. BeckOGK/Fornasier, as of 01.06.2022, art. 40 EGBGB mn. 2.
• 3. MüKoBGB/Junker, vol. 13, 8th ed. 2021, art. 40 EGBGB mns. 22 et seq., 31.
• 4. Bizer, Persönlichkeitsrechtsverletzungen in sozialen Medien. Fragen des anwendbaren Rechts, 2022, pp. 167 et seq.
• 5. Alongside many Kropholler, Internationales Privatrecht einschließlich der Grundbegriffe des Internationalen Zivilverfahrensrechts, 6th ed. 2006, p. 522.
• 6. Bizer (n 4), p. 160.
• 7. Kropholler (n 5), p. 522.
• 8. Overviewing in advance Hinden, Persönlichkeitsverletzungen im Internet, 1999, pp. 54 et seqq.
• 9. MüKoBGB/Junker (n 3), art. 40 EGBGB mn. 25.
• 10. Kegel/Schurig, Internationales Privatrecht. Ein Studienbuch, 9th ed. 2004, p. 730.
• 11. Hinden (n 8), p. 57.
• 12. Hinden (n 8), pp. 56, 60.
• 13. Hinden (n 8), pp. 57 et seq.
• 14. Hein, Das Günstigkeitsprinzip im internationalen Deliktsrecht, 1999, § 12 mn. 36.
• 15. (German Federal Court) BGH, Judgment of 19.12.1995 – VI ZR 15/95, NJW 1996, p. 1128 (1128); Schulze, Bürgerliches Gesetzbuch. Handkommentar, 11th ed. 2022, art. 40 EGBGB mn. 8.
• 16. Ehmann/Thorn, AfP 1996, p. 20 (23); Staudinger/Hoffmann, vol. of art. 38-42 EGBGB, 2001, art. 40 EGBGB mn. 58.
• 17. Wagner, RabelsZ 1998, p. 243 (281).
• 18. Fricke, Der Unterlassungsanspruch gegen Presseunternehmen zum Schutze des Persönlichkeitsrechts im IPR, 2003, pp. 221 et seq.; similarly, Hinden (n 8), p. 59 with further references.
• 19. Ehmann/Thorn, AfP 1996, p. 20 (23) with the example of a shell company in mn. 36.
• 20. Hinden (n 8), pp. 60 et seq.; Kropholler (n 5), p. 541 instead talks about the responsible seat (“verantwortliche[r] Verlagssitz”).
• 21. Cf. Hinden (n 8), p. 60.
• 22. Cf. Hinden (n 8), pp. 60 et seq.
• 23. Ubber, WRP 1997, p. 497 (502).
• 24. Pfeiffer, NJW 1997, p. 1207 (1215); Luckey, Internationale Urheber- und Persönlichkeitsrechtsverletzungen im Internet, 2002, p. 104.
• 25. Bachmann, IPrax 1998, p. 179 (183).
• 26. Mankowski, RabelsZ 1999, p. 203 (257); Spindler, ZUM 1996, p. 533 (560) describes the same concept when assessing the place of action at the location where the distribution is deliberately controlled.
• 27. Cf. Hinden (n 8), p. 68.
• 28. But so, alongside others, Spindler/Schuster, Recht der elektronischen Medien. Kommentar, 4th ed. 2019, art. 40 EGBGB mn. 15.
• 29. Dregelies, Territoriale Reichweite von Unterlassungsansprüchen. Eine Studie mit Schwerpunkt im deutschen und europäischen Persönlichkeits- und Immaterialgüterrecht, 2020, p. 72.
• 30. Bizer (n 4), p. 155.
• 31. Kersten, JUS 2017, p. 193 (193) accurately explains possibilities to become anonymous: Suppressing the IP address, sending e-mails whereby the sender cannot be identified, and the usage of the dark web; sometimes even non-anonymous content simply gets lost in the sheer mass of internet posts.
• 32. Cf. Bizer (n 4), p. 156.
• 33. The first to state this for German international private law was Mankowski, RabelsZ 1999, p. 203 (265 et seq.); Hinden (n 8), pp. 72 et seq., who appropriately points out that other uncertainties can be dealt with via the principle of free judicial assessment of evidence according to s. 286 ZPO (German Code of Civil Procedure); most recently Bizer (n 4), pp. 156 et seq.
• 34. Mankowski, RabelsZ 1999, p. 203 (258).
• 35. Hinden (n 8), p. 72.
• 36. BeckOK/Spickhoff, 69th ed. 2024, art. 40 EGBGB mn. 43.
• 37. Bizer (n 4), p. 157 accurately describes this approach as unnecessarily cumbersome and establishes that the conceptualisation is a mere preparation; this is also already ascertained by BeckOK/Spickhoff (n 36), art. 40 EGBGB mn. 43 fest, who, however, still ties into the mentioned location, which is a contradiction.
• 38. Alongside others, Spindler/Schuster (n 28), art. 40 EGBGB mn. 22.
• 39. Bizer (n 4), p. 169; BeckOGK/Fornasier (n 2), art. 40 EGBGB mn. 49; rejecting this idea e.g., Schack, Internationales Zivilverfahrensrecht mit internationalem Insolvenzrecht und Schiedsverfahrensrecht, 8th ed. 2021, mn. 370.
• 40. Bizer (n 4), pp. 167 et seq.
• 41. BeckOGK/Fornasier (n 2), art. 40 EGBGB mn. 8.
• 42. Spindler/Schuster (n 28), art. 40 EGBGB mn. 25.
• 43. Gounalakis/Rhode, Persönlichkeitsschutz im Internet. Grundlagen und Online-Spezifika, 2002, mn. 15 in quotation 32 with the example of an e-mail that is coincidentally read on a business trip in another state.
• 44. Spindler/Schuster (n 28), art. 40 EGBGB mn. 25.
• 45. Cf. Hinden (n 8), pp. 121 et seqq.; agreeing BGH, Judgment of 02.03.2010 – VI ZR 23/09, NJW 2010, p. 1752 (mn. 19) – New York Times.
• 46. Alongside others recently Bizer (n 4), p. 172; previously rejecting this idea BGH, Judgment of 02.03.2010 – VI ZR 23/09, NJW 2010, p. 1752 (mn. 19) – New York Times; Change of direction in BGH, Judgment of 21.04.2016 – I ZR 43/14, GRUR 2016, p. 1048 (mn. 18) – An Evening with Marlene Dietrich; ECJ, ECLI:EU:C:2021:1036 = EuZW 2022, p. 223 (mn. 41) – Gtflix.
• 47. Szpunar, ECLI:EU:C:2022:818 = GRUR-RS 2022, 28042 mn. 1, 11 – Opinion of Advocate General Szpunar Grand Production.
• 48. BeckOGK/Fornasier (n 2), art. 40 EGBGB mn. 8.
• 49. Alongside others, especially Bizer (n 4) p. 171.
• 50. Previously representing this approach BGH, Judgment of 02.03.2010 – VI ZR 23/09, NJW 2010, p.1752 (mn. 17) – New York Times.
• 51. Cf. Gounalakis/Rhode (n 42), mn. 15.
• 52. In detail BeckOGK/Fornasier (n 2), art. 40 EGBGB mns. 13 et seqq. with further references.
• 53. Pichler, Internationale Zuständigkeit im Zeitalter globaler Vernetzung, 2007, mns. 368 et seq.
• 54. Regarding the parallel discussion cf. BeckOGK/Fornasier (n 2), art. 40 EGBGB mns. 53, 59 et seq.
• 55. KG, Judgment of 25.03.1997 – 5 U 659/97, NJW 1997, p. 3321 (3321); correspondingly BGH, Judgment of 03.05.1977 – VI ZR 24/75, NJW 1977, p. 1590 (1590).
• 56. OLG Düsseldorf, Judgment of 30.12.2008 – 15 U 17/08, NJW-RR 2009, p. 701 (703).
• 57. BGH, Judgment of 02.03.2010 – VI ZR 23/09, NJW 2010, p. 1752 (mn. 11) – New York Times.
• 58. ECJ, ECLI:EU:C:1995:61 = NJW 1995, p. 1881 (mn. 29) – Shevill; in the same way Bar/Mankowski, Internationales Privatrecht, vol. II, 2nd ed. 2019, § 2 mn. 59.
• 59. ECJ, ECLI:EU:C:2011:685 = MMR 2012, p. 45 (mns. 41 et seq.) – eDate.
• 60. ECJ, ECLI:EU:C:2017:766 = GRUR 2018, p. 108 (mn. 33) – Bolagsupplysningen.
• 61. Wagner, RabelsZ 1998, p. 243 (276).
• 62. Spindler, ZUM 1996, p. 533 (558).
• 63. Cf. BeckOGK/Fornasier (n 2), art. 40 EGBGB mns. 56 et seqq.
• 64. ECJ, ECLI:EU:C:1995:61 = NJW 1995, p. 1881 (mn. 30) – Shevill.
• 65. ECJ, ECLI:EU:C:2011:685 = MMR 2012, p. 45 (mn. 44) – eDate.
• 66. ECJ, ECLI:EU:C:2011:685 = MMR 2012, p. 45 (mns. 45-52) – eDate.
• 67. ECJ, ECLI:EU:C:2011:685 = MMR 2012, p. 45 (mn. 49) – eDate.
• 68. ECJ, ECLI:EU:C:2017:766 = GRUR 2018, p. 108 (mn. 41) – Bolagsupplysningen.
• 69. ECJ, ECLI:EU:C:2017:766 = GRUR 2018, p. 108 (mns. 48 et seq.) – Bolagsupplysningen; ECJ, ECLI:EU:C:2021:1036 = EuZW 2022, p. 223 (mn. 35) – Gtflix whilst continuing all of the arguments from the prior cases.
• 70. ECJ, ECLI:EU:C:2021:489 = MMR 2021, p. 715 (mns. 37 et seq., 44 et seq.) – Mittelbayerischer Verlag.
• 71. Rieländer, EuZW 2021, p. 884 (888).
• 72. BGH, Judgment of 02.03.2010 – VI ZR 23/09, NJW 2010, p. 1752 (mn. 18) – New York Times; continuing BGH, Judgment of 29.03.2011 – VI ZR 111/10, NJW 2011, p. 2059 (mn. 8) – Sieben Tage in Moskau; recently BGH, Judgment of 27.02.2018 – VI ZR 489/16, NJW 2018, p. 2324 (mn. 17).
• 73. BGH, Judgment of 02.03.2010 – VI ZR 23/09, NJW 2010, p. 1752 (mn. 20) – New York Times; recently BGH, Judgment of 27.02.2018 – VI ZR 489/16, NJW 2018, p. 2324 (mn. 17).
• 74. In the same way Bach, EuZW 2018, p. 68 (73).
• 75. OLG Dresden, Court Order of 07.01.2019 – 4 W 1149/18, NJW-RR 2019, p. 676 (mn. 6); OLG Frankfurt a.M., Judgment of 06.09.2018 – 16 U 193/17, GRUR 2018, p. 1283 (mn. 31); LG Itzehoe, Judgment of 11.06.2020 – 10 O 84/20 mn. 23; inaccurate MüKoBGB/Junker (n 3), art. 40 EGBGB mn. 33 with the assertion that the German courts follow the mosaic theory out of tradition.
• 76. Köhler, WRP 2013, p. 1130 (mns. 49-53).
• 77. Bach, EuZW 2018, p. 68 (71).
• 78. Hinden (n 8), p. 169.
• 79. Heiderhoff, FS Coester-Waltjen, 2015, p. 413 (428).
• 80. Heiderhoff, FS Coester-Waltjen, 2015, p. 413 (428).
• 81. Heiderhoff, FS Coester-Waltjen, 2015, p. 413 (428).
• 82. Hinden (n 8), p. 169, 174, 186 et seq.
• 83. Bach, EuZW 2018, p. 68 (71 et seq.); BeckOGK/Fornasier (n 2), art. 40 EGBGB mn. 91 denotes this exact approach as being focused on the place of focus (“Schwerpunktlösung”) which does not distinguish the opinions with the required clarity.
• 84. Bach, EuZW 2018, p. 68 (72).
• 85. Bizer (n 4), p. 248; similar Hinden (n 8), p. 185, who also suggest only utilising the place of action if using the place of focus (“Schwerpunktlösung”) does not lead to a result.
• 86. Bizer (n 4), p. 244 et seqq., 255.
• 87. Bizer (n 4), p. 248.
• 88. However, as content can easily be translated, this criterion should only possess low significance – like this Bizer (n 4), p. 248.
• 89. That should, according to Bizer (n 4), p. 248 especially be the case if there is an obvious regional rooting of the content.
• 90. Bizer (n 4), p. 248 et seq.
• 91. Bizer (n 4), p. 250 et seq. with the example of a musician that aims for international fame and thus presents himself to different legal systems, as well as the example of Michael Schumacher who lived in Switzerland but earned his reputation as a racing driver in Germany.
• 92. Brand, NJW 2012, p. 127 (129).
• 93. Brand, NJW 2012, S. 127 (129).
• 94. BeckOGK/Fornasier (n 2), art. 40 EGBGB mn. 67.
• 95. Cf. Hess, Protecting Privacy in Private International and Procedural Law and by Date Protection. European and American Developments, 2015, p. 81 (106).
• 96. Hinden, ZEuP 2012, p. 940 (950).
• 97. Slonina, ÖJZ 2012, p. 61 (66); Roth, IPRax 2013, p. 215 (221); Hinden, ZEuP 2012, p. 940 (950); Rieländer, EuZW 2021, p. 884 (888).
• 98. Bizer (n 4), p. 191.
• 99. Staudinger, NJW 2010, p. 1754 (1755).
• 100. Heiderhoff, FS Coester-Waltjen, 2015, p. 413 (427).
• 101. Staudinger, NJW 2010, p. 1754 (1755); Brand, NJW 2012, p. 127 (130); Hess, JZ 2012, p. 189 (193); BeckOGK/Fornasier (n 2), art. 40 EGBGB mn. 93.
• 102. Lüttringhaus, ZZP 2014, p. 29 (50 f.); BGH, Judgment of 02.03.2010 – VI ZR 23/09, NJW 2010, p. 1752 (mn. 11) – New York Times; BeckOGK/Fornasier (n 2), art. 40 EGBGB mn. 76.
• 103. BGH, Judgment of 02.03.2010 – VI ZR 23/09, NJW 2010, p. 1752 (mn. 18) – New York Times, although the court then still stated that the actual acknowledgement of content was a necessity for the establishment of the place of injury; changing this opinion BGH, Judgment of 21.04.2016 – I ZR 43/14, GRUR 2016, p. 1048 (mn. 18) – An Evening with Marlene Dietrich.
• 104. Spindler, AfP 2012, p. 114 (116).
• 105. A great example for this is the name of the murderer in the case about the murder on the cruise ship Appollonia, which was published by the Spiegel, “Da geriet ich in Panik”, https://www.spiegel.de/politik/da-geriet-ich-in-panik-a-a064bc47-0002-00... and through that reached popularity even more; the German Federal Constitutional Court BVerfG, Court Order of 06.11.2019 – 1 BvR 16/13, NJW 2020, p. 300 (mns. 40 et seqq.) – Recht auf Vergessen I, determined a violation of the general right to privacy therein.
• 106. BeckOGK/Fornasier (n 2), art. 40 EGBGB mn. 55.
• 107. Cf. BeckOGK/Fornasier (n 2), art. 40 EGBGB mn. 55.
• 108. Heiderhoff, FS Coester-Waltjen, 2015, p. 413 (429).
• 109. ECJ, ECLI:EU:C:2011:685 = MMR 2012, p. 45 (mn. 49) – eDate.
• 110. Fricke (n 18), p. 233 et seq.
• 111. Heiderhoff, FS Coester-Waltjen, 2015, p. 413 (429).
• 112. Rohe, Zu den Geltungsgründen des Deliktsstatuts, 1994, p. 223; Hinden (n 8), p. 94 et seqq. with a detailed line of argument; ECJ, ECLI:EU:C:2021:489 = MMR 2021, p. 715 (mn. 25) – Mittelbayerischer Verlag.
• 113. Detailing the technological side Hinden (n 8), p. 121 et seqq.
• 114. Bizer (n 4), p. 248.
• 115. Cf. Lutzi, ZGE 2023, p. 111 (114); of course, there are then places which are subsidiarily decisive however, establishing all of these places is too inefficient for proceedings.
• 116. In this way even themselves the BGH, Judgment of 02.03.2010 – VI ZR 23/09, NJW 2010, S. 1752 (mn. 20) – New York Times.
• 117. Damm, GRUR 2010, p. 891 (893).
• 118. Cf. BeckOGK/Fornasier (n 2), art. 40 EGBGB mn. 88.
• 119. ECJ, ECLI:EU:C:2017:766 = GRUR 2018, p. 108 (mn. 35) – Bolagsupplysningen.
• 120. ECJ, ECLI:EU:C:2011:685 = MMR 2012, p. 45 (mn. 49) – eDate.
• 121. Rieländer, EuZW 2021, p. 884 (888).
• 122. ECJ, ECLI:EU:C:1995:61 = NJW 1995, p. 1881 (mns. 28 et seq.) – Shevill; this does not mean that the aggrieved party must be known beforehand – the discussion is merely about the perceptibility of the effects which are the highest at the centre of interest.
• 123. ECJ, ECLI:EU:C:2011:685 = MMR 2012, p. 45 (Rn. 49) – eDate, based on a particularly close connection.
• 124. Fitting, Hoffmann (n 16), art. 40 EGBGB mn. 59, who emphasises the social relevance of the personality rights.
• 125. ECJ, ECLI:EU:C:2011:685 = MMR 2012, p. 45 (mn. 48) – eDate; cf. recently ECJ, ECLI:EU:C:2021:1036 = EuZW 2022, S. 223 (mn. 26) – Gtflix.
• 126. Bach, EuZW 2018, p. 68 (70); Heinze, EuZW 2011, p. 947 (949).
• 127. Stein/Schnichels/Lenzing, EuZW 2022, p. 1094 (1097); regarding the restriction of the indirect identifiability the ECJ, ECLI:EU:C:2021:489 = MMR 2021, p. 715 (mns. 37 et seq., 44 et seq.) – Mittelbayerischer Verlag.
• 128. ECJ, ECLI:EU:C:2021:489 = MMR 2021, p. 715 (mn. 37) – Mittelbayerischer Verlag.
• 129. BeckOGK/Fornasier (n 2), Art. 40 EGBGB mn. 59.
• 130. In this way already Wagner, RabelsZ 1998, p. 243 (278); R. Wagner, EuZW 1999, p. 709 (712).
• 131. Kohler, IPRax 2021, p. 428 (430).
• 132. Rieländer, EuZW 2021, p. 884 (889).
• 133. Cf. Stadler/Krüger, ZEuP 2020, p. 856 (874 et seq.).