Civil Substantial Jurisdiction in Cyberspace  Postings on the World Wide Web, Forums and E-mails

Author: Serge Perkovic, Principal,

Northfields Lawyers, June 2016

Civil Substantial Jurisdiction in Cyberspace

Postings on the World Wide Web, Forums and E-mails

A unique problem which arises with use of the Internet is that the owner of a website potentially would be subject to jurisdiction of every state in which the website could be viewed. Countries and their legal systems are organised geographically while e-commerce has done away with geography. And the international legal system providing legal security has not emerged yet.

In this article we address basic issues about person’s position when engaged on World Wide Web either by posting on own websites, social networks or e-mails in terms of civil law (as opposed to criminal). Which countries have civil jurisdictional powers at all to govern a person using Internet and/or proprietary issues and situations arising from and connected with use of Internet and how does it affect a poster on the World Wide Web? Crimes attract particular and specific jurisdiction per se and will not be discussed here. 

Existing or New Laws

Arguably, existing laws simply should be allowed to adapt to the new medium.  This seems to be current state of affairs, as there are no special Cyber law courts. Where a situation causing conflict of law arises, for civil disputes, the rules of international private law apply.  Many legal issues that arise from publishing a web site do not pose any new legal questions except that now conflict of law situations may be more frequent.  

On the other hand many of the circumstances do give rise to new legal questions and inconsistent outcomes in application of laws on web community create impossibility and inability of web users  to conduct and order their affairs to be certain to achieve compliance with laws.

1. Uncertainties Websites Owners and Users Face  

All territorial jurisdictions feel simultaneously effects of web posting activities and it seems that, apart from jurisdiction where positing was actually done and where a server is located (where there may be the strongest claim for jurisdiction), all jurisdictions of the World would appear to have equal claims to make law governing the content and communication through any particular website.

However, attempt to regulate all activities on the Web by a single jurisdiction has been proven counter productive (for example, the USA state of Minnesota) and have shown limited success. Internet media is flexible and it is always possible for a system operator to establish a system which evades local territorial controls.

No nation has high probability controlling it.  

The Web users are rightfully anxious as they are currently not able to comply with all laws of all jurisdictions and are worrying about any particular jurisdiction which may attempt to regulate their activities.

This paper does not address tax jurisdiction over e-commerce and applicable law and jurisdiction of cloud computing and employment contract, which are addressed in separate papers.

2. Postings on World Wide Web Sites

Today, objectives of counties’ private international rules are widely accepted to be the need to promote uniformity or predictability of consequences, expectations and intentions of parties, respect for the interest of other counties and the justice of the result in the particular case. We have addressed regulation of Web sites content in a separate paper of the same name. 

Therefore, suppose you create a website from anywhere in the World and your server is positioned also at any hypothetical country, what would be your expectations about civil legal liabilities you may face because of this posting?

2.a. Contract and Consumer Protection

In the USA there is considerably more law dealing with the application of jurisdictional rules to the Internet than anywhere else. Some guidelines but not concrete rules has developed.

The courts developed “a sliding scale” where on one side of the scale, personal jurisdiction exists over a defendant if the website allows a defendant to actively conduct business over the internet; and on another side of the scale there is no basis for personal jurisdiction where a website is passive and it merely makes information available to persons in the USA state. Therefore, whether the USA courts will have a personal jurisdiction depends on the level or interaction and commercial nature of the website. 

This factor would possibly be considered anywhere in the world.

However, it would be too ambitious to try to write about different countries position in this paper and we provide useful guidelines for posting on the World Wide Web in order to avoid contractual and consumer protection disputes:

-         It may be too onerous task to consider laws of each country but if you believe that there are jurisdictions in which your likely potential customers are located, local consumer protection and contract law rules should be considered.  

-          You should also tailor the World Web Site to these countries from which you expect business. 

-         Make certain that descriptions on your web site are not to be considered as offers but mere invitations to treat.

-         You should also display a disclaimer about applicable laws to your proposed contract or dealing.

-         Consider the terms and conditions of the contract including the governing law and ensure that the other party has adequate notice of those terms and conditions prior to entering into the contract.

-         Note some consumer protection rules and contract terms can not be excluded.

-          The terms of contract should be clear and concise, written in large letters and an accept button should be below these terms.

-         Display disclaimers or limit countries to which the product or service is available.

-         You can consider ensuring that you know from which jurisdiction your internet clients are, by asking them to disclose it or by registration. You can also consider blocking access to certain countries. 

-         If you do post in Japanese, Russian, Mandarin language spoken in China or Hindu in India, it may be viewed by local authorities that you actively solicit business in these jurisdictions so it is better to adhere to local laws. Although this matter is not fully settled, you would be exposed to a risk of being tried under local jurisdictions.

2.b. Tort and Defamation

What happens if your World Web Site breaches registered or unregistered trade marks in some jurisdictions or if it intentionally or unintentionally defames someone in other jurisdictions? You may not even be aware of these breaches when do posting.

Private international law rules apply about your responsibility, however, there are some specifics developed in the Cyber law:

-         As you publicise in each jurisdiction in the World take care when you offer your product and service, particularly when translated in major languages for larger markets. When publishing a Web site, you would ideally want to register an international trade mark. and consider registering in the major markets you do business.

-         Company directors should not believe that they are protected by the corporate veil against legal actions as they may be found vicariously liable (Playboy Enterprises, Inc. v Webbbworld, Inc in the USA with similar law applicable in, for example, Austria).  

-         When offering links to other websites, disclaimers about your non-responsibility for content of these sites should be placed on a clearly visible place connected to the link.

-         Breach of local privacy laws may make you liable in tort and under consumer protection legislation in local jurisdictions so these issues should be considered when collecting information.

-         Restrain from posting any potentially defamatory information or when you feel like it is necessary to write it, and you have a proper legal excuse, ensure that you know laws of jurisdictions where a person you are writing about has reputation. For example, in an Australian case, it was found that defamatory material publicised in the USA on the World Web Site was connected to Australia as it damaged a reputation of a plaintiff already built in Australia and awarded damages.  

3. Emails, Social Forums and User Groups

Emails

Sending an email to an individual whose location is know to the sender is similar to sending regular mail addressed to an individual at a known location.

In every other case it may be difficult to say that email distribution is a method by which a person purposefully avails itself to the privilege of conducting activities and jurisdiction with the recipient forum state and the issue must be dealt with in accordance with specifics of the case.

Therefore, it is not recommended that location of both senders and recipient is pre-supposed for the form of an e-mail as jurisdictional rules will attach only to well proven location by evidence available in a case in dispute. For example, an email with host address in India was received via a web server in Italy.

Social Forums and User Groups (Linkedin, Twitter, etc)

Here a situation is specific as the poster knows that the post may be read but does not know that it will certainly be received and read.   

The fact that it is foreseeable that a post may be received in particular jurisdiction may not alone sufficient to give  rise to jurisdiction  Settled cases as is the World-Wide Vokswagen Corp v Woodson 444 US 286, (1979) case, states that “the foreseeability that it is critical to due process analysis is not the mere likelihood that a product will find its way into the forum State. Rather, it is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there”.  The court in this case found that it is not exceeding its powers to try the case over a corporation (and arguable a person on a Forum) that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum state.

It is not totally settled whether knowledge that the post will be received in the jurisdiction is sufficient but from settled cases it seems that the commercial activity in forum state which is not random or isolated is usually required which is possibly assessed by volume of commercial activity. When there is additional conduct than jurisdiction will be assessed by all circumstances of the case.

4. Forum Shopping and International Solutions

An injured party may choose to sue in several jurisdiction at once. The courts usually do not look favourably at such practice because of waste of resources and of possibility of conflicting judgments.

Many jurisdictions, such as Australian, English and German may decline jurisdiction in such cases. For example, in Germany,  courts may decline jurisdiction if parties show that a case about the same dispute is commenced in another country and that the foreign judgment will be enforceable in Germany.   

The European Union and members countries of EFTA have treaties in place about jurisdiction in consumer protection disputes. The OECD countries, the UN and several international organisations, including the Internet Society, Internet Engineering Task Force, Internet Architecture Board are actively trying to resolve jurisdictional issues. We will write about these efforts in separate papers.

There are also attempts of self regulation – controlled through the rules adopted by system operators and users together with the enforcement mechanisms available to system operators through the technology itself – however, they are still subject to jurisdictional and substantial rules of national laws.

5. Conclusion

World Wide Web, besides ordinary legal principles which are applicable to it, in certain situations, operates on distinct principles which may not yet be fully appreciated by jurisdictions.

As discussed above, there are measures to be implemented achieve more certainty in your legal position when posting on the World Wide Web, forums and e-mailing.

This is a very dynamic area of law which takes effort to keep pace with so participant in Internet communication should be alert at all times about legal changes and challenges.

Disclaimer:

The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources