An introduction to jurisdictional issues in cyberspace

Imagine a state proclaiming that it will claim jurisdiction l over, and apply its laws to, any website that can be accessed from a computer located in its taritory. The response would per/taps be outrage from some. Others would point to the ineffective nature of such a rule, and yet others would perhaps view the model as infeasible. Indeed, when the Advoeate-General's office of Minnesota in the mid 90's issued a statement that: '[pJersons outside of Minnesota who transmit infonnation via the Internet knowing that information will be disseminated in Minnesota are subject to jurisdiction in Minnesota courts for violations of state criminal and civil laws '2, it was met with strong criticism.3 Against this background, persons unfamiliar with private international law (or as the discipline is referred to in common law systems, conflict of laws) might be surprised to find that many, not to say most, states' private international law ntles do in fact provide for jurisdictional claims over any website that can be accessed in its territory, in relation to a wide range of legal matters. Similarly, This article is based on a paper titled 'Jurisdictional Issues and the Internet A Brief Overview', which was published as part of the collection of lectures from the Cyberspace 2003: Normative Framework conference held in Brno (Czech Rep., October 2003). Dr Dan Jerker B. Svantesson is an Assistant Professor at the Faculty of Law, Bond University, and a Research Associate of the Baker & McKenzie Cyberspace Law and Policy Centre. Further, Dan is the contributing editor for the "Jurisdictional Issues" pages of www.worldlii.org, and the National Convener for the International Law Interest Group of the Australasian Law Teachers Association. The term 'jurisdiction' can have two different meanings. It can refer to the court's authority to hear a particular dispute, or to a particular law area. In this article it will, however, only be used in the former meaning. 2 Memorandum of Minnesota Attorney General as found in: Bernadette Jew, 'Cyber Jurisdiction Emerging Issues & Conflict of Law when Overseas Courts Challenge your Web', Computers & Law, (Dec. 1998), at 23. 3 See e.g. Bernadette Jew, above n.2 and Darrel C. Menthe, 'Jurisdiction in Cyberspace: A Theory of International Spaces', (1998) 4 Michigan Telecommunications and Technology Law Review 69. Copyright of Full Text rests with the original copyright owner and, except as permitted under the Copyright Act 1968, copying this copyright material is prohibited without the permission of the owner Jurisdictional Issues in Clfberspace 51 many, not to say most, states' private international law rules do provide for the court to apply the law of the state where the court is located in many situations where jurisdiction is being exercised over aforeign website. This article examines the issues associated with the application of private international law to online activities. In doing so, the four interconnected elements of private international law; jurisdiction, choice of law, the courts' option of declining jurisdiction and recognition and enforcement are examined. Examples and experiences are primarily drawn from Australia4, and particular focus is placed on the Internet defamation dispute between US publishing giant, Dow JOHes & Company Inc, and Victorian businessman, Joseph CutHick. 5 However, non-Australian materials, particularly from the European Union (i.e. community instruments), the People's Republic of China and the United States ofAmerica, are relied upon. 1. Private International Law The first thing to note, in relation to private international law, is that each state makes its own private international law rules (i.e. the private international law rules are part of the domestic law of each state). However, as is exemplified in the European Union's Brussels Regulation 44/2001, states are free to enter into international arrangements regarding their private international law rules. Further, it is to be noted that the private international law rules are part of the states' procedural rules (i.e. the laws regulating procedural issues such as the manner in which the court should act), as contrasted to the states' substantive laws6 like contract laws, defamation laws or intellectual property laws. While courts may apply foreign substantive laws, they will ordinarily only apply their own procedural rules. Finally, it is important to be aware of the distinction between civil matters (i.e. matters relating to the interaction of, and relationship between, individuals, businesses and organisationsV and criminal matters (i.e. matters relating to the laws 4 While state legislation varies within Australia, the regulations of concern in this article are similar in most States. However, the Australian examples used will be drawn from the State of Victoria. 5 Gutnick v. Dow lones [2001] VSC 305, and Dow lones & Company lnc l' Gutnick [2002] HCA 56. 6 'The branch of the law which creates, defines, and regulates people's rights, duties, powers, and liabilities' Peter Nygh and Peter Butt, Butterwortlts Concise Australian Legal Dictionary (Sydney, Butterworths, 1998). 7 Typical civil matters include contractual disputes, defamation disputes and intellectual property disputes. 52 Journal ofLaw and Information Science Vol152004 regulating what acts are punishable as crimes).8 While jurisdictional issues arise in both civil and criminal contexts, private international law rules are only applicable in civil matters.9