Notes

The problem with the Internet is that it is not clear where the State can apply its Sovereign power. For example, gambling services, activities which have very strict regulations in some countries and less strict in others. Internet has allowed gambling services to expand their access beyond their base-country borders, maybe also in places where gambling is in some way prohibited. This generates a Jurisdictional Issue.

Jurisdiction Three different concepts of "Jurisdiction":

• Prescriptive Jurisdiction, the State legislature's right to create, amend or repeal legislation (power to create legal norms).
• Enforcement Jurisdiction, the State's right to enforce the legislation (power to make sure that the law is applicable and applied)
• Adjudicative Jurisdiction, the ability of courts to hear and decide on matters.

When considering the Internet case, the problems concern mainly the second two types of jurisdiction.

The US Scenario

• Pennoyer v. Neff (1878)

• The defendant must be brought within a State's jurisdiction by service of process within the state of voluntary appearance: required physical presence. (Individual presence of the person on which you want to apply the law).

• International Shoe (1945)

• Washington State taxes on an Illinois shoe company? The defendant needs not be present so long as he has certain minimum contacts with the forum so that it does not offend traditional notions of fair play and substantial justice. (There is a reasonable expectation that defendant had a contact on that State, therefore the authorities of that State can claim to have jurisdiction).

How much extensive must a party's contact with a state be for the courts of that state to be able to exercise jurisdiction over that party?

• Hanson v. Denckla (1945)

There be some acts by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws. (It means that there if you are getting the benefits of trading in one State, then you're subject also to "negatives", such as that State's jurisdiction). Therefore the two "tests" defined for the relationships between States are:

• Minimum Contact
• Purposeful Availment No physical presence but ... damage

Calder v Jones (1984) A professional entertainer who lived and worked in California and whose television career was centred there started a lawsuit in California, claiming that she had been libeled in an article written and edited by authors in Florida and published in a national magazine having its largest circulation in California. The authors, both residents of Florida, were served with process by mail in Florida, and claimed lack of personal jurisdiction. The Court developed the "Effects Test". There is a reasonable expectation for the defendants to be sued in the forum State: jurisdiction in California is proper because the effects of the Florida conduct were felt there. No physical presence but ... contract

Burger King Corp. v Rudzwicz (1985) Personal jurisdiction is proper even though defendants never went to the forum State because "it is an inescapable fact of modern commercia life that a substantial amount of business is transacted wholely by mail and wire communications across State lines". (Deny of Pennoyer 1878 decision).

The US Scenario - Zippo v Zippo Dot Com (1997) On this occasion, the Court developed the "Sliding Scale Test", the Court tried to state in which situations a forum State can apply jurisdiction over a website.

• The first scenario is the one where the website is actively operating with the purpose of doing business, with objectives located in another State. If the website is doing so, the State where the website is doing business can claim the right to apply its jurisdiction.
• The second scenario is the one where the website is acting in a merely passive way. In this situation is difficult for another State to apply its jurisdiction.
• There exists also a big "grey" area called Middle-ground, which depends on the actual level of interactivity of the website. In this scenario might be up to the Court to decide whether the website was able to establish a contact with the different subjects involved creating a jurisdiction claim.

The problems in the Zippo case Almost all disputed cases were left in the land of "interactivity", where courts were given no guidance except to analyse and weigh the levels of interactivity. The Zippo test followed a one-size-fits-all approach, for all Internet disputes: but Internet disputes come in many different sizes and shapes. It may falsely describe the nature of Internet and computer-related communications: the World has changed!

Internet Regulation - The role of Courts as "substitute" regulators Dow Jones & Company v. Gutnick (HCA)

• Defamation involving an online newspaper based in the U.S.
• "The fact the publication might occur everywhere does not mean that it occurs nowhere": Gutnick had the right to sue for defamation at his primary residence and the place he was best known (Australia).
• If people wish to do business or to carry out any activities in different countries, they can hardly expect to be absolved from compliance with the laws of those countries.

Hold:

• Existing principles of defamation law are that legal proceedings should be undertaken in the place where the communication is received, not where the communication is sent from. This applies equally to internet communications, despite the new nature of the technology.
• In this case, involving information published on the Interne in the United States and read in the State of Victoria, Australia, the suitable jurisdiction for a court action is Victoria. (It is not important where an information is posted, but rather where that information is read).

Lewis v. King (EWCA) (2004) The parties both were U.S. citizens and residents, and the offending statements were posted to websites located in the U.S.. Those statements were published in Great Britain, only in the sense that the website on which they appeared could be viewed by readers in Great Britain, and apparently were. Forum shopping/regulatory arbitrage? Different burden of proof. A publication occurs when a message is posted on a website and becomes accessible in the UK: EWCA jurisdiction is proper. There is an initial presumption that the natural or appropriate forum for the trial is the place where the tort is committed; in defamation that would be where the libel was published. However, the more tenuous the Claimant's connection with this jurisdiction the weaker this consideration becomes; in Internet cases the court's discretion will be more "open-textured" so as to give effect to the publisher's choice of a global medium. (The fact that you used the Internet makes you subject to jurisdictions that are outside of the national borders). The judge must consider what is the appropriate forum without any consideration of whether there is a "juridical advantage".

Google Spain - Jurisdiction Mr. Costeja Gonzalez lodged with the Spanish Data Protection Authority a complaint against La Vanguardia, which publishes a daily newspaper with a large circulation and against Google Spain and Google Inc. The complaint was based on the fact that, when an internet user entered Mr. Costeja name in the Google search engine, he would obtain links to two pages of La Vanguardia, of 19 January and 9 March 1998 respectively, on which an announcement mentioning his name appeared for a real-estate auction connected with attachment proceedings for the recovery of social security debts. Google defends himself saying that the data processing part of his work is only done in the U.S., while Google Spain is only interested in the advertising business part. So, by the complaint Costeja Gonzalez, the Spain Court requested:

• La Vanguardia to remove or alter those pages so that the personal data relating to him no longer appeared or to use certain tools made available by search engines in order to protect the data. La Vanguardia refused appealing to the Freedom of expression.
• Google to remove the personal data relating to him. He stated in this context that the attachment proceedings concerning him had been fully resolved for a number of years and that reference to them now was entirely irrelevant. Google refused appealing to the fact that he doesn't control the content posted by third parties and furthermore he is not subject to EU Law.

The Court of Spain asked the European Court of Justice for a clarification of Article 4. With regard to the territorial application of [the Directive]: Must be considered that an "establishment", within the meaning of Article 4(1)(a) exists when any one or more of the following circumstances arise:

• When the undertaking providing the search engine sets up in a Member State an office or subsidiary for the purpose of promoting and selling advertising space on the search engine, which orientates its activity towards the inhabitants of that State.
• When the parent company designates a subsidiary located in that member state as its representative and controller for two specific filling systems which relate to the data of customers who have contracted for advertising with that undertaking.
• When the office or subsidiary established in a Member State forwards to the parent company, located outside the European Union, requests and requirements addressed to it both by data subjects and by the authorities, with responsibility for ensuring observation of the right to data protection, even where such collaboration is engaged in voluntarily?

In order to satisfy the criterion laid down in that provision, it is necessary that the processing of persona data by the controller be "carried out in the context of the activities" of an establishment of the controller on the territory of a Member State. Google disputes that this is the case since the processing of personal data at issue in the main proceedings is carried out exclusively by Google Inc., which operates Google Search without any intervention on the part of Google Spain; the latter's activity is limited to providing support to the Google group's advertising activity which is separate from its search engine service. In the light of the objective of preventing individuals from being deprived of the protection guaranteed by the Directive, it must be held that the processing of personal data for the purposes of the service of a search engine such as Google Search, which is operated by an undertaking that has its seat in a third State but has an establishment in a Member State, is carried out "in the context of the activities" of that establishment if the latter is intended to promote and sell, in that Member State, advertising space offered by the search engine which serves to make the service offered by that engine profitable. (Therefore EU Law is applicable). In these circumstance, the activities of the operator of the Search engine and those of its establishment situated in the Member State concerned are inextricably linked since the activities relating to the advertising space constitute the means of rendering the search engine at issue economically profitable and that engine is, at the same time, the means enabling those activities to be performed. That being so, it cannot be accepted that the processing of personal data carried out for the purposes of the operation of the search engine should escape the obligations and guarantees laid down by Directive 95/46, which would compromise the directive's effectiveness and the effective complete protection of the fundamental rights and freedoms of natural persons which the directive seeks to ensure.

Defamation Shevill (1995) Art. 5 of Brussels Convention (1968) On jurisdiction and the enforcement of judgments in civil and commercial matters. A person domiciled in a Contracting State may, in another Contracting State, be sued:

• [...]
• [...]
• In matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred. (Effects Test).

... the victim of a libel by a newspaper article distributed in several Contracting States may bring an action for damages against the publisher either before the courts of the Contracting State of the place where the publisher of the defamatory publication is established, which have jurisdiction to award damages for all the harm caused by the defamation, or before the courts of each Contracting State in which the publication was distributed and where the victim claims to have suffered injury to his reputation, which have jurisdiction to rule solely in respect of the harm cause in the State of the court seized. (a person libeled by a newspaper has then two options:

• Sue the newspaper in the Country where the publisher is based, and you can claim damages for all the harm caused by the defamatory act.
• Claim for damages in every State he suffered harm for his reputation. In this case you can claim from every Court damages for the part of harm caused in that particular State).

eDate Advertising (2011) ... in the event of an alleged infringement of personality rights by means of content placed online on an internet website, the person who considers that his rights have been infringed has the option of bringing an action for liability, in respect of all the damage caused, either before the courts of the Member State in which the publisher of that content is established or before the courts of the Member State in which the centre of his interests is based. That person may also, instead of an action for liability in respect of all the damage caused, bring his action before the courts of each Member State in the territory of which content placed online is or has been accessible. Those courts have jurisdiction only in respect of the damage cause in the territory of the Member State of the court seized.