Analyzing approaches to internet jurisdiction based on a model of harbors and the high seas

Abstract

The inherent cross-border nature of the internet has challenged the legal system for over two decades. In this paper we introduce a model in which the internet is approached as if it were the high seas, the harbor of origin, the harbor of destination, or a combination of these. This model is used to rephrase existing case law related to internet jurisdiction from an international law perspective, the US and the EU (in particular Germany and the Netherlands). The model helps to illuminate the positions taken by the parties and the judge, and to indicate possible alternative interpretations. In some cases a high seas approach would have made sense (Yahoo!), or more recently the Vacation Rental by Owner case about trademarks where registration in one country was deemed to have an effect everywhere a person had the trademark on his or her computer screen. In H&M v G-star the Dutch Supreme Court even established jurisdiction based on an infringing product that was not available in the city of the court but was to become available on the internet some time in the future. We do not take a position in this paper on what perspective, based on our model, is best, but make clear how to identify the possible arguments.

Keywords:

• internet jurisdiction
• internet law
• e-commerce

Conflict of interest disclosure

No potential conflict of interest was reported by the authors.

Funding

This research was supported by a grant from the Centre for International Cooperation (CIS) of the Vrije Universiteit Amsterdam.

Notes

1. Boundaries of Law is a research program started in 2010 at the Vrije Universiteit Amsterdam law faculty. One of the lines of research deals with internet related issues, see http://www.rechten.vu.nl/en/research/organization/research-programmes/boundaries-of-Law/index.asp

2. See, for example www.internetjurisdiction.net, http://www.intgovforum.org (Internet Governance Forum) or giga-net.org (Global Internet Governance Academic Network).

3. http://www.newscientist.com/article/mg22429913.200-ecitizens-unite-estonia-opens-its-digital-borders.htm

4. The Internet & Jurisdiction Project's observatory has created a collection of cases since 2012 from around the world regarding topics such as adoption of new regulations, drafts of law, blocking offensive content, fines for violating local law, choice of law and jurisdiction, among others. Some of these could be useful in this research and for future reference. See www.internetjurisdiction.net/observatory/.

5. www.internetjurisdiction.net/observatory/retrospect/april-2013/(and November 2013, February and March 2014) (accessed June, 2014).

6. European Commission (2014), Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions Internet Policy and Governance Europe's role in shaping the future of Internet Governance (Text with EEA relevance) /* COM/2014/072 final */

7. However, international organizations and courts have the power of jurisdiction beyond the state.

8. Some authors refer to three types of jurisdiction in international law: jurisdiction to regulate, to adjudicate and to enforcement, see Gladstone (2003).

9. There are other types of jurisdiction according to the matter, the parties, functional factor, etc., however, personal jurisdiction is crucial because it: ‘ … can give rise to more complex issues and is the focus for the discussion of jurisdiction' (Svantesson 2007, 6)

10. Forum non conveniens seems to have origins in Scotland, although the doctrine was developed in US by a Pennsylvania Court in 1801 (Velásquez 2005, 262).

11. The last two tests had origins in Supreme Court cases: International Shoe Co. v. State of Washington, 1945, and Hanson v. Denckla, 1958. A recent work about personal jurisdiction over foreigners is (Mullenix 2011).

12. In countries with the Roman civil law system, the most important jurisdiction principles are ‘Actor sequitor forum rei' (the plaintiff should follow the forum of the property in suit, or the forum of the defendant's residence) and ‘Lex loci delicti commissi' (the law of the place where the tort, offence or injury was committed).

13. Wetboek van Burgerlijke Rechtsvordering, enacted in 1986.

14. In European Community law, ‘Regulations' have same the level of law in all countries; ‘directives', give some flexibility to states in adopting processes; ‘decisions', are addressed relating to specific persons. These norms are all hard law, while ‘recommendations' and ‘opinions' are soft law (not binding rules).

15. In 2011 The European Court of Justice has interpreted the scope of Article 5(3) in eDate Advertising GmbH v X (C-509/09) and Olivier Martinez and Robert Martinez v MGN Limited (C-161/10) case.

16. Recently there has been increased activity by the EU authorities regarding the regulation of the Internet, e.g. in February 2014 The European Commission published the policy document on internet and governance that reflects the tensions between cross-border internet and national internet jurisdictions; in March 2014 The European Parliament adopted a Data Protection Regulation reform that can be applied extraterritorially regardless of jurisdiction in which European personal data are processed. See www.internetjurisdiction.net/observatory/retrospect/2014-february (and March) (accessed June 2014).

17. Convention on Jurisdiction and the enforcement of Judgments in Civil and Commercial Matters, September 30, 1968.

18. High Court of Australia, Dow Jones & Co. Inc. v. Gutnick, point 103 http://www.austlii.edu.au/au/cases/cth/HCA/2002/56.html (accessed 13 December 2013).

19. Here, two judgments with opposite decisions are both reasonable from the point of view of national law; but this only demonstrates the inadequacy of the legal system against the nature of cross-border Internet.

20. United States Court of Appeals, Ninth Circuit, Yahoo!, Inc. v. La Ligue Contre le Racisime et L'Antisemitisme, point II. http://caselaw.findlaw.com/us-9th-circuit/1144098.html (accessed 13 December 2013).

21. www.internetjurisdiction.net/observatory/retrospect/january-2013/ (accessed June 2014).

22. Canadian Federal Court, Citation 2012 FC 1467 (12-12-2012) http://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/61674/index.do (accessed June 2014).

23. United States Court of Appeals for the Second Circuit, No. 11-5388-cv (26-12-2012), pp. 5–6. http://www.internetcases.com/library/cases/2012-12-26_macdermid_v_deiter.pdf (accessed June 2014).

24. www.internetjurisdiction.net/observatory/retrospect/august-2013/ (November-2013 and january-2014 as well) (accessed June 2014).

25. England and Wales High Court, Queen's Bench Division, case No: HQ13X03128 (16/01/2014). http://www.bailii.org/ew/cases/EWHC/QB/2014/13.html (accessed June 2014).

26. Zippo Manufacturing Co. v. Zippo Dot Com, Inc, 952 F. Supp. 1124 (W.D. Pa. 1997).

27. Although its remote origins are discussed in the Lotus case, international law in 1927.

28. Boldon (2011) analyzes three cases.

29. The Supreme Court of Netherlands 7 December 2012 (H&M vs. G-Star), ECLI:NL:HR:2012:BX9018. All Dutch cases were found at www.rechtspraak.nl, the site of Netherlands judiciary.

30. CJEU 19 April 2012, C-523/10 (Wintersteiger).

31. CJEU 3 October 2013, C-170/12 (Pinckney/KDG Mediatech).

32. Court of Appeal, The Hague, 26 November 2013, ECLI:NL:GHDHA:2013:4466.

33. Summary Judge Breda, 8 February 2011, (Dahabshill), ECLI:NL:RBBRE:2011:BP3480

34. Court of Amsterdam, 12 February 2009, (Dimensione), ECLI:NL:RBAMS:2009:BH6546.