The determination of the law, which applies, to particular multimedia products or services, which may be in more than one jurisdiction. [Cyber-Jurisdiction]
Legal Basic Concepts In Relation to Jurisdictional Issues
@ Conflict Rules-Choice of Law is applied to answer these following questions:
What court has jurisdiction to resolve these disputes?
Waht law should be applied by the forum to resolve the disputes?
How can the judgment or remedy of the disputes be enforce?
What form of dispute resolution should be used?
@ Each country has its own rules for making the "choice of law" decision.
Choice of Law-Tort: There are two main questions to be asked by the court1) Where was tort committed?2) Where was the damage caused?
Considering choice of law in tort law based on Eanglish case: Phillips v Eyre (1870) LR 6 QB 1. Willes J held that:
"As a general rule, in order to found a suit in England for a wrong alleged to have committed abroad, two conditions must be fullilled. First, the wrong must be of such a character that it would have been actionable if committed in England.... Secondly, the act must not have been justifiable by the law of the place where done."
@ Restraints on Proceedings
Forum Conveniens- hear the case in the most appropriate forum or
Forum non conveniens- hear it elsewhere if that is more appropriate For example, the doctrine of forum non conviens can be raised where, in cases of service of a defandant outside Australia, the plaintiff seeks leave to serve or to proceed, or where the defandant, once served, applies to have service of process set aside.
@ The Problem of Forum Shopping
choosing the court is geographically the closest,
considering a higher standard of justice
offering better remedies
filing an action where the forum could be great inconvenience to the other party
@ Enforcement of Foreign JudgementThe Common Law will recognise a foreign judgement provided:
the foreign court's jurisdiction is recognised by the Australian court
the foreign judgement is final and conclusive
the parties are the same
Our Task: Seminar 2
Questions
1. What are the territorial nexus rules for determining the liability of traditional media publishers (print and electronic) for the publication of defamatory material in Australia? What impact would the application of those rules have on the liability of operators of Internet sites for the publication of defamatory material over the Internet?
2. What are the bases of jurisdictional competence on which courts have relied to provide those courts with jurisdiction over material published on a web site which is not located within, but which may be accessed from, the territory over which the court has jurisdiction?
3. In what circumstances will United States' courts refuse to enforce foreign judgements, which fail to satisfy the free speech protection accorded by the first amendment to the United States Constitution? What impact does the refusal by United States courts to enforce foreign judgments in such circumstances have on the ability of foreign jurisdictions to enforce their domestic legal systems on multimedia services which may be accessed worldwide but which are located, and have all of their significant assets, solely within the United States?
4. What are the conflicts of laws rules, which apply to Australian intra-state torts? What impact would the application of those rules have to determining the liability for defamation of the operator of a web site, the server for which is located in Victoria but which may be accessed throughout Australia?
LONDON MEETING DRAFTAchieving Legal and Business Order in Cyberspace:A Report on Global Jurisdiction Issues Created by the Internet*AMERICAN BAR ASSOCIATION GLOBAL CYBERSPACE JURISDICTION PROJECTReport of the American Bar Association ("ABA") Jurisdiction in Cyberspace Project empaneled in 1998 under the title, "Transnational Issues in Cyberspace: A Project on the Law Relating to Jurisdiction." The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be construed as representing the policy of the American Bar Association. 1. SOLUTIONS FOR GLOBAL CONSIDERATION1.1. Jurisdictional Default Rules1.2. Contractual Choice of Law and Forum1.3. Hybrid Alternative1.4. The Future Global Agenda to Address Jurisdiction in Cyberspace2. IN SUPPORT OF THE SOLUTIONS:How Technology Has Changed Jurisdictional Paradigms2.1. The Relevance of Physical Location2.2. Targeting2.3. Power Parameters2.4. Contractual Choice2.5. The Intersection Between Jurisdiction and Substantive Liability for Intermediaries3. THE DOCTRINAL FRAMEWORK3.1. Personal Jurisdiction3.1.1. Classic Jurisdiction3.1.2. Jurisdiction Over Defendants Never Physically Present in the Forum3.1.2.(a). Jurisdiction Based on Indirect Economic Benefit3.1.2.(b). Jurisdiction Based on Intentional Causation of Effect3.1.2.(c). Jurisdiction Based on Intentional Affiliation3.1.3. Jurisdiction and the Interne3.1.4. General Jurisdiction3.1.5. Contractual Choice of Forum3.2. Prescriptive Jurisdiction3.2.1. Constitutional and Other Local Restraints3.2.2. The Restraint of International Law3.2.3. American and European Approaches to Choice of Law3.2.4. Torts3.2.5. Contracts 3.2.6. Consumer Contracts 3.2.7. The Internet and International Law 3.2.8. Choice of Law and Personal Jurisdiction 3.3.9 Enforcement Jurisdiction
Related Cases
Mecklermedia Corporation v DC Congress Gesellschaft mbH [1997] FSR 627.
Gorton v Australian Broadcasting Commission (1973) 22 FLR 181, 181-183.
Mink v AAAA Developments LLC 190 F 3d 333 (1999).
Telnikoff v Matusevitch 702 A 2d 230 (Md 1997).
Gutnick v Dow Jones & Co Inc [2001] VSC 305; [2001] ACL Rep 85
Yahoo, Inc. v. La Ligue Contre Le Racisme et L'Antisemitisme 169 F Supp 2d 1181; 2001 US Dist LEXIS 18378; 30 Media L Rep 1001 (ND Cal 2001)
Bensusan Restaurant Corporation v King 937 F Supp 295 (SDNY 1996).
"No jurisdiction over defendant in Missouri in declaratory trademark infringement suit brought in New York where defendant maintained mere passive Web site and had no commercial contacts with New York other than Web site."
Blumental v Drudge 992 F Supp 44 (DDC 1998)
Jurisdiction over defendant Matt Drudge in Califonia proper in defamation suit brought in the District of Columbia because defendant's Web site could be accessed in the District, the defendant also e-mailed the allegedly defamatory comment to 85,000 subsribers of his newsletter, some of whom resided in the District of Columbia , and the defendant traveled to Washington to be interviewed by C-SPAN. AOL , however, was protected from liability by the ISP safe harbor in the CDA.
iAccess Inc v WEBcard Technologies Inc (2002) US Dist LEXIS 1258 (United States District Court for the District of Utah, Central Division.
Interactive Web site is not enough to support exerse of jurisdiction over foreign party:A court may not exercise personal jurisdiction over a foreign party that has an interactive Web site when that party has not intentionally targeted or has not interacted with consumers in the forum state.
Internet Doorway Inc v Parks 138 F Supp 2d 773 (2001 US Dist LEXIS 5128)
People of the State of New York v Lipsitz 663 NYS 2d 468 (Sup 1997).
"A New York court ruled that the defendant was subject to personal jurisdiction and liable for violaing New York consumer protection laws, although the defendant conducted its magazine subscription business generally in the Internet"
Playboy Enterprises Inc v Chuckleberry Publishing Inc (1996) 36 IPR 104, 36 IPR 114. .
Additional Links
Domain Name Articles, Cases and Issues
EU-Dr. E-commerce:Internet Governance@@@
WIPO- Barcelona.com case: Case D2000-0505@@@
ICANN Search Index of UDRP Proceedings@@@@@
.eu
Fortune 1000 Domain Registrations: An Alternative Perspective on Registrar Market Share
Registrars of Fortune 1000 Companies - Graphical Comparison
AU-whatsinaname.com.au: .au Registrar Price Comparison
Free Domains, URL and Email Forwarding by Name.Space, or Register your .Com
WIPO Arbitration and Mediation Center - Domain Name Disputes
Internet Society (ISOC) All About The Internet: Link to Other Interesting Sites
IANA Root-Zone Whois Index by TLD Code
Domains: Structure -- Alternative Roots
Forum New.net: Chat about DNS
Mobile TLD Domain Registry@@@
Thaiamazon.com case: WIPO Domain Name Dispute: Case D2001-01392
Yahoothailand.com case-WIPO Domain Name Dispute: Case D2000-1461
General Issues Related to Internet Law
Censorship and the Internet
Internet Law Journal.com - www.TILJ.com@@@
UK-Journal of Information, Law & Technology:elj.warwick.ac.uk@@@@
William & Mary Journal of Online Law@@
Tech Law Journal: News, records and analysis of legislation, litigation, and regulation affecting the computer and Internet industry@@@@@
Censorship and the Internet
eLibrary - Ecommerce Law Links
Canadian IT Law Association/L'Association canadienne du droit des technologies de l'information
Andy Muleer-Maguhn: ICANN related materials
IP Law in Digital Age
American IP Lawyer Association
Welcome to ePatents
http://www.rpi.edu/dept/llc/intelprop/hp.html
Bill Summary & Status
Bechtold: The Link Controversy Page
Bechtold: The Link Controversy Page
WTO Intellectual property (TRIPS) - gateway
WIPO Internet Domain Name Process
UW Copyright Connection
Linking and Liability (BitLaw)
Copyright and Intellectual Property Rights:Berkeley Digital Library SunSite
The UK Patent Office - Notices: Managing Intellectual Property - A Guide for Managers
Judge Weighs Dismissal of Charges in Digital Copyright Case
CNN.com - Judge: U.S. has jurisdiction in DMCA case - April 3, 2002
BNA: Infringement versus fair use: Panel Debates Digital Copyrith Law at Security Conference
Why Copyright Law Could be Unimpotant on the Internet: Eric Schlarcher
A Summary of the New Digital Millennium Copyright Act: Dab L. Bagatell
Basic U.S. Patent, Trademark & Copyright Information
ALA Washington Office: The Digital Millennium Copyright Act
Multimedia Content and the Super Hightway: Rapid Acceleration or Foot on the Brake?: Fred Greguras et al.
Law Books: New-Media Business[Multimedia Law]
WWW Multimedia Law-Internet contracts,licenses
Potential Pitfalls in Multimedia Product Development... : Paul F. Norris et al.
Reforming Information Law in Copyright's Image: Jessica Litman
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