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'Borderless cyberspace' ? - Internet jurisdiction issues Russell Allen Incorporating slides by Professor Graham Greenleaf and Dan Svantesson These slides.

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Presentation on theme: "'Borderless cyberspace' ? - Internet jurisdiction issues Russell Allen Incorporating slides by Professor Graham Greenleaf and Dan Svantesson These slides."— Presentation transcript:

1 'Borderless cyberspace' ? - Internet jurisdiction issues Russell Allen Incorporating slides by Professor Graham Greenleaf and Dan Svantesson These slides may be used for private, non-commercial study only.

2 Introduction Whats the problem?

3 Borderless problems You are defamed on a website overseas Your books bought from an online bookstore overseas never arrive Will an Australian court hear your case? Which countrys law applies? Can you enforce Australian laws overseas? Why dont countries have the same laws?

4 Borderless cyberspace? Two methods by which law overcomes the borderless problem: (i) Private international law Methods of resolving conflicts in cyberspace between individuals from different countries (ii) Public international law Agreements between States to have common local rules concerning cyberspace Methods of resolving disputes between States

5 Conflict of Laws AKA Private International Law

6 What is Conflict of laws? Procedural rules as contrasted to substantive rules! Private International law (or jurisdictional issues) Not only international – also domestic in federations like Australia

7 What is Conflict of Laws? Jurisdiction – Which court will decide the dispute? Choice of law – which substantive law should the court apply? Recognition and Enforcement – Where can the judgment have effect?

8 A Four Step Model (NSW) Jurisdiction – Supreme Court Rules Choice of law – (contract) proper law, (tort) lex loci delicti Forum non conveniens – YES/NO Recognition & enforcement – YES/NO

9 Jurisdiction Jurisdiction – Choice of Law – Forum non Conveniens - Enforcement

10 Jurisdiction in Australia When will Australian courts assert cyberspace jurisdiction? 2 connections must be present - (i) Personal jurisdiction (ii) Subject matter jurisdiction

11 Personal jurisdiction Depends on service of a writ on the Defendant (D) - 2 possibilities: (I) Satisfied if D can be served in Australia, or consents to jurisdiction (ii) Australian court can allow service ex juris outside Australia

12 Service Ex Juris in Tort The tort was committed within the forum Supreme Court Rules 1970 (NSW) Pt 10 r 1A(1)(d) The tort had damaging effects within the forum Supreme Court Rules 1970 (NSW) Pt 10 r 1A(1)(e)

13 Service Ex Juris in Contract The contract was made within the forum The contract was breached within the forum The contract is governed by the law of the forum

14 Service Ex Juris for Injunctions May be permitted when the plaintiff seeks injunction to compel or restrain act of defendant within the forum which infringes Ps rights in forum

15 Choice of Law Jurisdiction – Choice of Law – Forum non Conveniens - Enforcement

16 Choice of Law: This issue will only ever arise if the forum finds that it may claim jurisdiction. Sometimes the question of jurisdiction is not in dispute, but the choice of law is.

17 Choice of Law: Lex fori – the law of the forum Lex loci delicti – the law of the place where the wrong was committed Lex loci celebrationis – the law of the place where a judicial act occurs

18 Choice of Law: The reasonable expectation of the parties. Uniformity in result

19 Defamation (Tort) Main Rule: Lex loci delicti John Pfeiffer Pty Limited v Rogerson [2000] HCA 36 (21 June 2000) Regie National des Usines Renault SA v Zhang [2002] HCA 10 (14 March 2002)

20 Defamation (Tort) The place of wrong is the place where the publication takes place Publication takes place where the defamatory material is made manifest to the receiving third party, in a format which can be comprehended by the receiver

21 Contracts The proper law of the contract Express choice of the proper law Inferred choice of the proper law Objective approach to the proper law

22 Exceptions Trade Practices Act 1974 (Cth) s 67 Contracts Review Act 1980 (NSW) s 7(1) Golden Acres Ltd v Queensland Estates Pty Ltd [1969] Qd R 378 Cant use express choice to be oppressive or to evade law

23 Party Autonomy Parties to contract are free to make binding agreement between themselves as to forum and choice of law Restrictions on this in EU law Restrictions on this in s67 Trade Practices Act 1974 (Cth)

24 Forum Non Conveniens Jurisdiction – Choice of Law – Forum non Conveniens - Enforcement

25 Forum Non Conveniens Courts have a discretionary power to decline jurisdiction when the convenience of the parties and justice would be better achieved by resolving the dispute in another forum. Court considers factors such as the ease of access to sources of proof, and the availability of witnesses. Court may decline to exercise jurisdiction if it finds that it is a clearly inappropriate forum to determine the application: Voth v Manildra Flour Mills (1990) 171 CLR 538

26 Forum Non Conveniens A court shall decline jurisdiction under certain circumstances In Australia – clearly inappropriate forum

27 Forum Non Conveniens Supreme Court Rules 1970 (NSW) - SECT 10.6A(2)(b) … that this Court is an inappropriate forum for the trial of the proceedings

28 Factors taken into account Connection between forum and subject- matter Connection between forum and the parties Judicial advantages to the plaintiff The availability of an alternative forum The applicable law

29 Forum Non Conveniens : In majority of common law states – more appropriate forum Which rule is better? Clearly inappropriate forum OR More appropriate forum?

30 Enforcement Jurisdiction – Choice of Law – Forum non Conveniens – Enforcement

31 Recognition and Enforcement: If there is no risk that the judgment can be enforced against you, why bother defending? If there is no chance of having the judgment enforced against the other party, why bother going to court?

32 Recognition and Enforcement: Assets in third country, that would recognize and enforce the judgment (Brussels Convention in the EU) Future business in the state that made the judgment or in third country, that would recognize and enforce the judgment This area is being harmonized through international co-operation.

33 Enforcement in Australia In Australia there are two ways to enforce a foreign judgment: Recognition at common law Recognition by Statute

34 Only certain countries - On a reciprocity level - Foreign Judgments Act 1991 (Cth)

35 Recognition at common law - Any country - A four criteria test: - Foreign court must have had international jurisdiction - Foreign judgment must be final and conclusive - Same parties and same action - A fixed debt

36 Defences to Common Law Foreign judgment obtained by fraud Foreign judgment contrary to public policy Foreign court acted contrary to natural justice Foreign judgment is penal Foreign court acted perversely in refusing to apply the appropriate law Foreign judgment estopped by prior judgment within Australia Foreign Procedings (Excess of Jurisdiction) Act 1984 (Cth)

37 Recap: The Model (NSW) Jurisdiction – Supreme Court Rules Choice of law – (contract) proper law, (tort) lex loci delicti Forum non conveniens – YES/NO Recognition & enforcement – YES/NO

38 Australian Cases

39 Macquarie Bank v Berg Macquarie Bank Ltd v. Berg [1999] NSWSC 52 Injunction sought to stop publication by Defendant in US on US website of defamatory material Court declared it had power, but exercise was a matter of discretion

40 ASIC v Matthews ASIC v. Matthews [1999] FCA 164 ASIC v. Matthews [2000] NSWSC 392 Publishing of securities material on website, order given to take down and not republish. Material moved to NZ web server Found to be contempt of court, 3 months imprisonment

41 Gutnick v Dow Jones [2001] VSC 305 (Supreme Court of Victoria) - Dow Jones (DJ) published Barrons Magazine on the web with an article ('Unholy Gains') about G. DJs servers are in New Jersey USA (NJ). G said the defamation occurred in Victoria (Vic); DJ said it occurred in NJ (where defamation of public figures is only where malice is proven) Court held that defamation occurs where a person comprehends the defamatory content - in Vic - so only Vic law must be satisfied

42 More Gutnick Dow Jones v. Gutnick [2002] HCA 56 (High Court) Upheld Hedigan Js initial decision Publication takes place where a person comprehends the defamatory content

43 A Side Issue: Lawyers v Geeks Read comments by Hedigan J in the initial instance, [2001] VSC 305, at [70, 71] Compare with comments by Dr Clarke in Defamation on the Web: Gutnick v. Dow Jones at http://www.anu.edu.au/people/Roger.Clar ke/II/Gutnick.html http://www.anu.edu.au/people/Roger.Clar ke/II/Gutnick.html

44 A side issue: How new is the Internet? Kirby J: …more than simply another medium…revolutionary leap Callinan J: …no more than a means of communication by a set of interconnected computers Note: Despite this, both judges reached same conclusion

45 Gutnick on Jurisdiction Victorian Supreme Court Rules Rule 7.01(1): Originating process may be served out of Australia without order of the Court where: (i) the proceeding is founded on a tort committed in Victoria; (j) the proceeding is brought in respect of damage suffered wholly or partly in Victoria and caused by a tortious act or omission wherever occurring

46 Gutnick on Choice of Law Lex Loci Delicti (fairly recent rule) So, Dow Jones needed a change in the law to win Callinan J: a radical shift in the law of defamation

47 Dow Jones on Choice of Law Place of uploading Effect: Extending US Law Problem: What about, eg, FreeNet? Problem: What about ASIC v. Matthews? Problem: Jurisdiction different to Choice of Law

48 Gutnick on Forum non Conveniens clearly inappropriate test reaffirmed Gutnick gave an undertaking to sue in Victoria, for damages suffered in Victoria under Victorian law. Gaudron J: Whole controversy test

49 Two Other Issues Gutnick gave an undertaking to sue in Victoria, for damages suffered in Victoria under Victorian law. Did this influence the Court? WSJ.com was a subscription site, with a number of subscribers who had paid by methods which identified their jurisdiction, eg Credit Cards. Would a totally free site have fared differently?

50 Gutnick Reactions From Gutnick, it seems that wherever a person reads a web page, their local law applies to it - 300+ laws may apply! Some claim this may destroy the Internet Alternative view: Why should US law and the US First Amendment apply world-wide? Enforcement of judgments must also be considered

51 Gutnick Unreasonability: Svantessons Indonesian Newspaper example Can unreasonability be incorporated into forum non conveniens? Kirby J: [the issue of forum non conveniens] is the place where the Internet problem is going to be solved. (from transcript)

52 Other Common Law Cases

53 Godfrey v Demon Internet [1999] EWHC QB 244; [1999] 4 All ER 342 (UK) Godfrey sued his ISP for defamation because it hosted the newsgroup soc.culture.thai, which had a posting defaming him Publication occurs when a customer of the ISP accesses the newsgroup

54 Euromarket Designs Inc v Peters [2000] EWHC Ch 179 (UK) Trademark case, similar domain names Irish site had not actively gone out to seek world-wide trade

55 Investasia v Kodansha Investasia Co Ltd v. Kodansha Ltd [1999] 2 HKC 515 (Hong Kong) Pre-Gutnick defamation case Question asked: Do the plaintiffs have a local reputation to protect?

56 Zippo Manufacturing v Zippo Dot Com (1997) 952 F. Supp. 1119 – US District Court, Pennsylvania (USA) Trademark case, website outside Pennsylvania Active v. Passive website distinction drawn

57 Other Legal Systems Cases

58 The French Yahoo! case Licra et Uejf vs Yahoo! Inc. and Yahoo France (Superior Court of Paris 22 May 2000) Licra et Uejf vs Yahoo! Inc. and Yahoo France French Court ordered US Yahoo! to stop Fr. citizens accessing auctions of Nazi items or web pages with anti-Semitic content (Yahoo! claimed technical impossibility), and to remove content (to comply with Fr. law). Fined US Yahoo! 100,000 Francs/day for non-compliance (but not Fr. Yahoo!)

59 Criticisms Technology makes it impossible Encouraging Censorship The Internet Ought Not be Censored The Internet Ought Not be Goverened by National Laws Judgement is not Enforceable

60 Technology – Is is Possible? IP based identification ISPs outside France AOL and Virginia Large Corporations Cookies Why not just lie?

61 The US Yahoo! case Yahoo! Inc.v Licra et Uejf (US Dist Ct, N.Dist of California, Nov 7, 2001)Yahoo! Inc.v Licra et Uejf Yahoo! USA sought an order that the Fr. judgment was not enforceable by a US Court. Yahoo! said it would have to remove the material altogether (for US citizens also). US courts would normally enforce Fr judgments Fogel J found a US Court could not make the order the Fr Court made without breaching the First Amendment, so it could not enforce the fine. [Even though this concerned a criminal fine, which Courts rarely enforce anyway - extradition is used]

62 iCraveTV Comparison Twentieth Century Fox v. iCraveTV.com 2000 U.S. Dist. Lexis 11670 (W.D. Pa, 2000) iCraveTV broadcasting US network TV over the Internet US Court held that it had jurisdiction Case settled

63 Remember Google Some companies already self censor. Witness stormfront.org censorship on Google.de This is not contrary to US 1 st Amendment Yahoo! US now self censors, although stating that it is not result of court case.

64 International Developments

65 Proposed Hague Convention First suggested in 1992 Drafted by the Hague Conference on Private International law Part 1 – Jurisdiction & Part 2 – Recognition and Enforcement White, grey & Black listed ground of jurisdiction

66 Article 7 Article 7 regulates consumer contracts Most recent version April 2001 in Edinburgh Based loosely on 1968 Brussels Convention

67 Summary

68 No world-wide liability?? Which countries laws do you really have to worry about if you publish via Internet? Only if these conditions apply: (i) You live in the country or assent to its Courts jurisdiction (ii) The judgment is not against the public policy of the country (iii) You have assets in the country

69 One Final Comment As long as different countries have different laws and cultures, there are no good principles for jurisdiction, only less bad ones - Thomas Carlen-Wendels


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