Cyberspace Law materials Internet Jurisdiction What is Jurisdiction

Cyberspace Law materials – Internet Jurisdiction

What is Jurisdiction? �The basis of jurisdiction can be either: the Party (for example, the party’s nationality, domicile, presence or residence in the forum, possession of property in the forum, etc); or the Cause of action (usually whether the act or event giving rise to the proceedings occurred wholly or partly in the forum).

Jurisdiction Based on Presence �Presence of Individuals Service based on the presence of the individual occurs when the defendant is ▪ present in the forum at the time of service of the process (ie. a writ); and ▪ is validly served with the process (which usually means personal service). ▪ However, personal service may be replaced by Substituted Service under certain circumstances, such as where personal service is not possible or practicable.

� Presence of a Corporation At common law, a foreign corporation (ie. a company incorporated outside the forum, regardless of whether or not the corporation has "physical" presence in the forum) ▪ could be sued in the forum if the company was present in the forum. The presence of a foreign corporation is determined by whether the company: ▪ has transacted business ▪ for a definite period of time ▪ at some fixed place within the forum Key factor: nature of business carried on ▪ No office necessary - can act through agents ▪ Critical for e-commerce: transact without presence ▪ Extreme case: Australian court may have jurisdiction over co. whose only link is a website accessible from AU

Jurisdiction based on Submission �A defendant who is not present in the jurisdiction may submit to the jurisdiction. �This is usually done by way of the defendant’s solicitor in the forum agreeing in writing to accept service of the process and enter an appearance before the forum court.

Service Outside Jurisdiction � Service outside the jurisdiction is sometimes allowed under specific circumstances where there are certain connections between the case or the defendant and the forum. � The rules for service outside jurisdiction differ to some extent from court to court. � However there are some common factors which give rise to the capacity to make a service outside the jurisdiction. For example, the circumstances that allow service outside jurisdiction for contractual and tortious actions are outlined below.

Contract In relation to suits arising out of a contract or related to a contract, the following circumstances will give rise to the forum court having jurisdiction over the case. � Contract made within the jurisdiction: � If a contract is made within the forum, then the forum court has jurisdiction with respect to any action brought in relation to the contract. A contract is made within the jurisdiction when the last act necessary to create a binding contractual obligation took place within the jurisdiction. The question of what is the last necessary act is answered by applying the law of the forum in relation to the formation of the contract. ▪ For example, under Australian law, where a contract is made as a result of instantaneous means of communication, it is made where the acceptance is received (Electronic Transaction Act 1999 (Cth). This has certain implications for online contracts. ▪ What is the last act necessary to create a binding online contract? ▪ In relation to a click-through contract, for example, is it the act of the customer clicking through or is it the notice that gets sent to the seller to say the customer has clicked through?

� Contract is made by or through an agent residing within the jurisdiction on behalf of a principal trading or residing outside jurisdiction: In this situation, in order to establish jurisdiction it is not necessary that the agent has actual authority to bind the principal. � Governing law of the contract is the law of the forum: This begs the question what is the proper law of the contract? This is answered by applying the ordinary contract choice of law rules. � Contract is breached within the jurisdiction: Again, one needs to look carefully at where the act of breach occurred. If it is deemed to have occurred within the forum, this gives sufficient connection with the forum for the forum court to have jurisdiction.

Tort �The following circumstances will give the forum court jurisdiction over the defendant in a tort action: commission of tort within jurisdiction; where the defendant is a necessary or proper party; or if the defendant is domiciled or ordinarily resident within jurisdiction.

� Once again, this gives rise to questions with respect to acts that occur in cyberspace. For example, if incorrect information is published in cyberspace and someone suffers damages as a result of that publication, where is the tort committed? Where is the place of publication? Is it where the information is uploaded or where the information is downloaded? � The issue of Internet jurisdiction in defamation cases was resolved by the Australian High Court in Dow Jones v Gutnick [2002] HCA 56 (http: //www. austlii. edu. au/au/cases/cth/HCA/2002/56. html) where it was unanimously held that the court in the forum where the defamatory material was downloaded and viewed had jurisdiction over the defamation dispute

Internet and Jurisdiction

Australian Position �Dow Jones v Gutnick

until downloaded on to the computer of a person who has used a web browser to pull the material from the web server. It is where that person downloads the material that the damage to reputation may be done. . . that will be the place where the tort of defamation is committed. (para 44)

Other points made by Gleeson CJ, Mc. Hugh, Gummow and Hayne JJ include: �Macquarie Bank v Berg

Further Developments

The proposed Hague Convention

those of the Hague Convention on Jurisdiction and Enforcement of Foreign Judgments in Civil and Commercial Matters. However, the section/clause/article numbers appear to be different.

Enforcement of Foreign Judgments �Case Study: Yahoo Nazi memorabilia case �Conflicting US authorities – Pavlovich v Superior Court and MGM v Grokster Pavlovich v Superior Court of Santa Clara County MGM v Grokster (the Kazaa case) Reasons for the conflicting decisions

serve to highlight just how confusing the area Intent jurisdiction can be – even judges are struggling to find acceptable approach to determining which forum has jurisdiction in cases that involve international cyberspace dealings.