The Committee was established in 2013 further to the proposal of Prof. Dr. Dres. h.c. Burkhard Hess (Director at the Max Planck Institute Luxembourg) to create a forum on the protection of privacy in the context of private international and procedural law. Prof. Dr. Dres. h.c. Burkhard Hess chaired the Committee, and Prof. Dr. Jan von Hein (Albert-Ludwigs-Universität Freiburg) and Dr. Cristina M. Mariottini (Max Planck Institute Luxembourg) were the co-rapporteurs.

In accordance with the mandate conferred by the International Law Association (‘ILA’), the Committee on the Protection of Privacy in Private International and Procedural Law (‘the Committee’) focussed on the promotion of international co-operation and the contribution to predictability on issues of jurisdiction, applicable law, and circulation of judgments in privacy (including defamation) matters, taking into account, i.a., questions of fundamental rights.

The Committee comprised experts from Australia, Austria, Belgium, Brazil, Croatia, France, Germany, Italy, Japan, the Republic of Korea, Luxembourg, Portugal, Spain, the United Kingdom, and the United States of America.

On 23 June 2022, the Lisbon Guidelines on Privacy, drawn up by the Committee in the course of its activity, were formally endorsed by the International Law Association at the 80th ILA Biennial Conference, hosted in Lisbon (Portugal), marking the completion of the Committee’s mandate.

Scope and objectives of the Committee

Ensuring effective rights to privacy has become a key issue both at the regional and international level. A new understanding and shaping of the right to privacy are currently being forged, giving rise to a series of questions: exploring private international and procedural law issues is of utmost significance, and recourse to general rules on torts and contracts may not necessarily provide an adequate and satisfactory solution. The Committee on the Protection of Privacy in Private International and Procedural Law was designed to analyse these issues in cross-border settings and to highlight the emerging questions as well as the current and potential impediments to an effective protection of privacy rights with a view to formulating proposals and solutions.

The scope of the Committee encompassed the protection of privacy rights in both the traditional framework and the digitalized and cyber world. It comprised the Internet, including but not limited to social media.

In this framework, the Committee expanded its analysis to explore new dimensions. For instance, it tackled the questions arising from the interface of privacy with personal data protection. It also included in its investigation emerging phenomena such as that of Strategic Litigation Against Public Participation (‘SLAPP’), which raises novel questions in particular vis-à-vis the interests pursued by the parties, in general, and notably by the plaintiff.

Overall, in an effort to standardize and rationalize an extensive and expanding area of the law, the Committee pursued the objectives of (i) providing a set of principles/framework for regulating privacy in private international and procedural law, and (ii) developing concepts that can constitute a point of reference for legislators, the judiciary and legal counsels.

Adoption of the Guidelines on the Protection of Privacy in Private International and Procedural Law (Lisbon Guidelines on Privacy) and Accompanying Commentary

Against this background, the Committee elaborated the Lisbon Guidelines on Privacy. The Guidelines are articulated in a Preamble followed by four major Sections on, respectively, General Provisions (section A), Jurisdiction (section B), Applicable Law (section C), and Recognition and Enforcement of Foreign Judgments (section D).

Overall, the Guidelines are based on two fundamental principles: notably, (i) foreseeability of jurisdiction, and (ii) parallelism between jurisdiction and applicable law. They are accompanied by a detailed Article-by-Article Commentary, which provides a comprehensive analysis of the Guidelines, complemented by examples, including illustrations taken from copious national, regional and supranational jurisprudence.

The Lisbon Guidelines on Privacy were formally endorsed by the International Law Association at the 80th ILA Biennial Conference, hosted in Lisbon (Portugal) from 19-24 June 2022.

Interest in the Committee’s work has been expressed by several international organizations in the course of the Committee’s activity. Moreover, the Committee’s work was cited in, i.a.:

§  Burkhard Hess and Cristina M. Mariottini (eds), Protecting Privacy in Private International and Procedural Law and by Data Protection. European and American Developments (Nomos, 2015).

§  Peter Trooboff, Globalization, Personal Jurisdiction and the Internet. Responding to the Challenge of Adapting Settled Principles and Precedents, in Recueil, vol. 415 (Brill, 2021).

§  Anna Bizer, Persönlichkeitsrechtsverletzung in sozialen Medien (Mohr Siebeck, 2022).

§  Cristina M. Mariottini, ‘The Exclusion of Defamation and Privacy from the Scope of the Hague Draft Convention on Judgments’, in Yearbook of Private International Law, 2017-2018, vol. XIX, p. 475 et seq.

§  Marta Requejo Isidro, ‘Time to Test the Center-of-Interest Connecting Factor. ‘Violeta Friedman’ from the Standpoint of Article 7(2) Brussels I Bis Regulation’, in EAPIL.