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JURISDICTION


Even in the absence of the Internet it is possible for an act in one state or country to have legally significant consequences in another. But the advent of the Internet makes multiple-jurisdiction transactions the norm rather than the exception. In very little time, and with no review of the laws of the various jurisdictions involved, a person located in Canada can order goods from a company in New York via a server located in California; the server might belong to an Internet service provider incorporated in Delaware but with its principal place of business in Virginia. The order might be paid for with a credit card issued by a bank in South Dakota, and result in goods being shipped by a third party located in Illinois to a fourth party located in Singapore. If disputes arise from the transaction, any or all of the states and countries involved might conceivably have jurisdiction over the matter.


When the territorial jurisdiction of state courts of the United States is at issue, the first question that must be addressed is the reach of the state’s long-arm statute. A long-arm statute is a state law that permits that state’s courts to exercise jurisdiction over parties outside the state. If the long-arm statute, by its own terms, permits jurisdiction over the out-of-state party, the next step is to determine whether the long-arm statute’s reach exceeds what is constitutionally permissible.


The territorial jurisdiction of a court may be either general or specific. A person who is subject to the general jurisdiction of a forum (that is, a court or other dispute-resolution body) may be compelled to defend any action in that forum, even if the action is unrelated to the defendant’s contacts with the forum state. Nonresidents are only subject to the general jurisdiction of a forum if they have contacts that are sufficiently systematic and continuous that they might reasonably anticipate being required to defend an action in that forum. In other words, people who live in a state are subject to the general jurisdiction of that state’s courts, as are other people closely connected to that state.


Problems are more likely to arise with specific jurisdiction. The U.S. Supreme Court established in International Shoe v. Washington that specific jurisdiction exists over a nonresident defendant only if that defendant has “certain minimum contacts with [the forum], such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’” This “minimum contacts” standard requires that a defendant purposefully avail himself or herself of the privilege of conducting activities in the forum. Because the jurisdiction thus created is specific, not general, the suit against the defendant must arise from his or her activities in or related to the forum. Finally, in order to comport with traditional notions of fair play and substantial justice, the exercise of jurisdiction must be reasonable (326 U.S. 310).


Thus, among the states of the United States, there are certain universally agreed upon and constitutionally mandated concepts regarding the territorial jurisdiction of courts. Among the nations of the world, however, there is no such universal agreement. The variability of national standards means that online activity may subject a person to the jurisdiction of the courts of a country in which he or she has never set foot, and with which he or she has not established anything approaching the minimum contacts of International Shoe.


The 2002 case of Gutnick v. Dow Jones & Co., in which an Australian court found it had jurisdiction over a U.S. defendant without a business presence in Australia, created alarm among online businesses. Gutnick, an Australian businessman living in Australia, alleged that he had been defamed by an article published in print and online by Barron’s, a business journal, in New Jersey. Only five copies of the print edition reached Australia; however, the online edition was as accessible from Australia as from anywhere else. The High Court of Australia viewed the act of “publication” as not a single act (as in U.S. law) but two—being published and being received. Because the publication was received in Australia and (allegedly) caused its harm there, the Australian court had jurisdiction over the non-Australian defendant.


Gutnick was greeted with alarm by businesspeople and commentators, who saw the decision as opening the door to potentially limitless lawsuits; anything that might be actionable under the law of some jurisdiction somewhere might, if that jurisdiction adopted a similarly broad view of territorial jurisdiction, result in lawsuits the defendants would be ill-equipped to defend. The Gutnick court itself downplayed this possibility:



[T]he spectre which Dow Jones sought to conjure up in the present appeal, of a publisher forced to consider every article it publishes on the World Wide Web against the defamation laws of every country from Afghanistan to Zimbabwe is seen to be unreal when it is recalled that in all except the most unusual of cases, identifying the person about whom material is to be published will readily identify the defamation law to which that person may resort (Gutnick, para. 54).


Subsequent events have proven the court at least partially correct. The decade since, Gutnick has not seen the once-feared explosion of litigation. Problems of territorial jurisdiction involving multiple nations have grown more complex, but Gutnick-like excesses remain rare. But while the problem may not be as drastic as it could have been, it is not nonexistent either. Dow Jones ultimately paid Gutnick the nontrivial sum of $580,000 (Australian dollars; about $443,500 U.S. at the time) to settle the action (Cooper 2005; Dow Jones Settles 2004).


The bizarre prosecution of Joseph Weiler raised some alarm as well. Weiler’s problems began when Thomas Weigend, a German professor living in Germany, wrote (in Germany, but in English) an unfavorable review of a book by Dr. Karine Calvo-Goller, a French citizen living in Israel. The review was published on GlobalLawBooks.org, a Web site associated with the European Journal of International Law and hosted on a U.S. server, edited by South African-born U.S. professor Joseph Weiler. Although Weiler had taught in France in the past, there was no nexus between France and Weiler’s allegedly defamatory publication of Weigend’s review, although of course the Web site could be accessed from France. The French court declined jurisdiction and awarded Weiler €8,000 “to compensate the harm caused by her abuse of process” (Public Prosecutor v. Weiler). While Public Prosecutor v. Weiler provides a welcome sanity check after Gutnick, there are still some worrisome aspects. First, this was a criminal case; it was theoretically possible for Weiler to have ended up facing jail time. And the lengthy proceedings meant that Weiler and his employer were put to significant expense—probably more than the €8,000 awarded—to defend the action, which dragged on for four years, no doubt causing considerable stress and loss of productivity as well.


In contrast, the ongoing effort of the U.S. Department of Justice to obtain the extradition of Megaupload founder Kim Dotcom from New Zealand shows the difficulty a country may have in protecting its interests from online activities originating beyond its borders. Mr. Dotcom, a German citizen residing in New Zealand, was accused by the United States of enabling online piracy worth over $500 million, an act that is a crime in New Zealand as well. For the time being, Mr. Dotcom remains in New Zealand, awaiting an April 2014 extradition hearing while appealing a decision in favor of the U.S. extradition attempt to the New Zealand Supreme Court (Dotcom Fight 2013; Megaupload Case 2012).


Meanwhile, the possibility of Web postings leading to travelers being arrested while changing planes at another country’s airport remains. The imprisonment in 2012 of Google Brazil president Fabio Jose Silva Coelho for refusing to take down a YouTube video after a Brazilian court ruled that it slandered a political candidate did not raise this concern, as Mr. Silva Coelho—a Brazilian living and working in Brazil—was already subject to the Brazilian court’s jurisdiction. However, criminal charges filed in Italy in 2006 against other Google executives were more alarming: in response to the popularity of a highly offensive YouTube video of the bullying of an autistic child, Italian prosecutors filed charges for criminal defamation and invasion of privacy against Google marketing executive Arvind Desikan, chief legal officer David Drummond, chief privacy attorney Peter Fleischer, and chief financial officer George Reyes. None of the four defendants were Italian citizens or residents, or even physically present in Italy at the time charges were filed. Jurisdiction could be based only on the nationality of the victim. Nonetheless, the defendants traveled to Italy to defend themselves in court, and in 2010, three of the four were convicted; Desikan was acquitted (Hill 2012). Even when convictions in a foreign country do not lead to immediate imprisonment, they are not purely symbolic, and may have severe consequences. The convict must exercise care when traveling, not only to the country in which the conviction was obtained, but to any other country that might extradite the convict to the convicting country. And the convict’s future employment options may be limited; many employment opportunities require convictions to be reported at the application stage, and attorneys must report convictions to their bar associations (and may face disciplinary action as a result).


Fortunately, for the future of the Internet, the convictions were overturned on appeal in 2012 (Castonguay 2012). However, the possibility of Web administrators facing criminal prosecution in other countries as a result of content posted on Web sites they administer remains. The legal systems of Australia, Brazil, and Italy do not create normative expectations wildly different from the U.S. norm; indeed, in the case of Australia, the legal system and resultant expectations are about as similar to those in the United States as might be found anywhere in the world. The legal systems of other countries with far more divergent ideas of what is tortious or criminal may only now be awakening to the possibility of exercising jurisdiction over foreign Web administrators. The disastrously idiotic YouTube video Innocence of Muslims led to riots around the world, with dozens of deaths; Google blocked the video in many countries, while in others, national governments blocked YouTube altogether. While the video has not yet led to charges against any Google employees, a court following the same chain of logic, or illogic, as the Italian trial court in the 2010 case might reach a similar result—with a more severe sentence, as deaths have resulted.


Cases


Australia


Gutnick v. Dow Jones & Co., [2002] H.C.A. 56 (Austl.), available at www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2002/56.html?stem=0&synonyms=0&query=dow%20jones (visited February 8, 2013)


France


• Tribunal de Grand Instance de Paris [TGI], [ordinary court of jurisdiction] Paris, Mar. 3, 2011, Case No. 0718523043 (Fr.) (Public Prosecutor v. Weiler), English translation available at www.ejiltalk.org/wp-content/uploads/2011/03/Public-Prosecutor-v-Weiler-judgement-March-3–2011–3.pdf (visited December 18, 2012)


Italy


• Tribunale Ordinario di Milano (Ordinary Tribunal of Milan) April 12, 2010, Case No. 1972/2010 (It.), available at www.giurcost.org/casi_scelti/Google.pdf (visited January 12, 2013)


• Trib. Ordinario di Milano, February 24, 2010, Sentenza n. 1972/2010 (It.)


Supreme Court


International Shoe v. Washington, 326 U.S. 310 (1945)


Federal Appellate Court


Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414 (9th Cir. 1997)


See also Censorship; Choice of Law; Cloud; Defamation; French Yahoo! Case; Piracy; Recognition and Enforcement of Judgments


Sources and Further Reading


Giles Castonguay, “Court Quashes Convictions in Google Video Case,” Wall Street Journal (December 21, 2012), available at online.wsj.com/article/SB10001424127887324461604578193093685872724
.html
(visited January 28, 2013)


Kevin M. Clermont, Civil Procedure: Territorial Jurisdiction and Venue (New York: Foundation Press, 1999)


Blake Cooper, “The U.S. Libel Law Conundrum and the Necessity of Defensive Corporate Measures in Lessening International Internet Libel Liability,” 21 Connecticut Journal of International Law 127 (2005)


George B. Delta & Jeffrey H. Matsuura, Law of Internet (New York: Aspen Publishers, 2d ed. 2001)


“Dotcom Fight Set to Reach Highest Court,” Stuff (March 2, 2013), available at www.stuff.co.nz/national/8372108/Dotcom-extradition-fight-set-to-reach-highest-court (visited April 29, 2013)


“Dow Jones Settles Gutnick Action,” ABC News (November 12, 2004), available at www.abc.net.au/news/2004–11–12/dow-jones-settles-gutnick-action/584404 (visited February 8, 2013)


Peter Fleischer, “My Italian Appeal, Peter Fleischer: Privacy . . . ?” (December 6, 2012), available at peterfleischer.blogspot.com/ (visited January 28, 2013)


“Google Brazil to Take Down Controversial Brazil Video,” BBC News (September 28, 2012), available at www.bbc.co.uk/news/world-latin-america-19753158 (visited February 8, 2013)


John O. Haley, Fundamentals of Transnational Litigation: The United States, Canada, Japan, and the European Union (New Providence, New Jersey: LexisNexis 2012)


Noah C.N. Hampson, “The Internet Is Not a Lawless Prairie: Data Protection and Privacy in Italy,” 34 Boston College International & Comparative Law Review 477 (2011)


Kashmir Hill, “The Downside of Being a Google Executive,” Forbes (September 27, 2012), available at www.forbes.com/sites/kashmirhill/2012/09/27/the-downside-of-being-a-google-executive/ (visited January 28, 2013)


Jeralyn, “Dueling Briefs Filed in Megaupload Case,” TalkLeft: The Politics of Crime (May 10, 2013), available at www.talkleft.com/story/2013/5/10/52233/2140/foreignaffairs/Dueling-Briefs-Filed-in-Megaupload-Case (visited May 13, 2013)


“Megaupload Case: New Zealand Court Wants FBI Evidence,” BBC News (August 16, 2012), available at www.bbc.co.uk/news/technology-19280898 (visited February 8, 2013)


Erin F. Norris, “Why the Internet Isn’t Special: Restoring Predictability to Personal Jurisdiction,” 53 Arizona Law Review 1013 (2011)


Tracie E. Wandell, “Geolocation and Jurisdiction: From Purposeful Availment to Avoidance and Targeting on the Internet,” 16 Journal of Technology Law & Policy 275 (2011)


“The World Is What You Make It—Every Country Has Its Own Internet,” The Economist, Special Report: Technology and Geography, October 27, 2012, at 20


Vittorio Zambardino, “Il Garante Privacy sulla sentenza di Milano: ‘E’ sbagliata, ma ora bisogna fare regole non censorie,” La Repubblica, April 16, 2010), available at www.itespresso.it/il-garante-privacy-difende-in-parte-google-dalla-sentenza-di-milano-44937.html (visited August 28, 2013)


Jonathan L. Zittrain, Jurisdiction (New York: Foundation Press, 2005)

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