“Rome II” Regulation and rights relating to personality: reflections to make a conflict of laws rule that preserves properly the exercise of the right to information and of the freedom of speech

Abstract

Infringement of the rights relating to personality and, in particular, of the rights to privacy, honor and reputation, were excluded from the material scope of application of the Rome II Regulation on the law applicable to non-contractual obligations. From the point of view of Private International Law, this exclusion leads to an undesirable situation, which clearly favors forum shopping. This article supports the development of a special conflict of laws rule for all the Member States based on the connecting factor of habitual residence of the suspected of the damage. This solution promotes predictability and certainty for both the media and for any individual who wishes to reveal a fact or express an opinion. Furthermore, it is the most compatible with a reasonable exercise of the work of the media. This is also a connection factor that is linked with the logic of the state of origin. In cases where this connecting factor doesn´t operate in a satisfactory way we could attend the rule of the closer links. Similarly, this rule could work as an escape clause.