The exclusion of defamation and privacy from the Rome II Regulation on choice of law in tort

David Kenny and Daniel Gilligan

Chapter 13 in Research Handbook on EU Private International Law, 2026, pp 275-295 from Edward Elgar Publishing

Abstract: This chapter examines the history, significance, and future of one of the most significant omissions in the EU private international law framework: the exclusion of defamation and privacy from the Rome II Regulation on choice of law in tort. Defamation, and other torts relating to privacy and personality, were notably omitted from the unified EU framework for choice of law in non-contractual civil and commercial matters, which came into force in 2009. Despite suggestions that this was a temporary exclusion that would be revisited, the omission persists, and no reform is currently planned. Here, we consider why this omission came about, and explore the complex and unique clash of rights and values that underlie these torts and led to a breakdown on consensus on this point. We then examine developments in these areas of law subsequent to Rome II, in particular in respect of jurisdiction rules for private international law cases concerning defamation and privacy, to consider the present state of play in this field. Finally, we look to the future, considering possible reforms for the Rome II regime to include these matters, and also the more radical possibility of unification of the substantive law on defamation and privacy across the EU. We conclude that the challenges to either solution are so significant that the supposedly temporary exclusion of defamation and privacy from this framework is likely to persist for the foreseeable future.

Keywords: Choice of Law; Tort Law; Non-commercial Matters; Defamation; Privacy Rights; Personality Rights; Right to a Good Name; Rome II Regulation; Jurisdiction; EU Private International Law; EU Privacy Law (search for similar items in EconPapers)
Date: 2026
ISBN: 9781035318681
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