JURISDICTION
The number of Internet-related disputes has been steadily increasing, which has made the issue of jurisdiction one of the hot aspects of Internet governance. Confusion over jurisdiction can have two immediate and simultaneous consequences: an inability of the state to e ercise its legal power as a responsible entity in regulating social relations within its territory! an inability of individuals and legal entities to e ercise their rights to justice "denial of justice#.
$ther consequences of ambiguous jurisdiction might be: legal insecurity on the Internet, including %forum shopping!& slower development of e-commerce! compartmentalisation of the Internet into legal safe 'ones.
(ecause of these consequences, clarification of jurisdiction and its procedures is a vital matter in Internet governance.
THE RELATIONSHIP BETWEEN JURISDICTION AND THE INTERNET
The relationship between jurisdiction and the Internet has a built-in ambiguity, since jurisdiction rests predominantly on the geographical division of the globe into national territories. )ach state has the sovereign right to e ercise jurisdiction over its territory. *owever, the Internet facilitates considerable cross-border e change, difficult "although not impossible# to monitor via traditional government mechanisms. The question of jurisdiction on the Internet e poses one of the central dilemmas associated with Internet governance: how is it possible to %anchor& the Internet within e isting legal and political geography+,1-
JURISDICTION BASIC TECHNIQUES
Three main considerations are important when thin.ing about jurisdiction: /hich court or state authority has the proper authority "procedural jurisdiction#! /hich rules should apply+ "substantive jurisdiction#! *ow to implement court decisions "enforcement jurisdiction#.
The following principal criteria establish jurisdiction in particular cases: Territorial 0rinciple 1 the right of the state to rule over persons and property within its territory! 0ersonality 0rinciple 1 the right of the state to rule over its citi'ens wherever they might be "nationality principle#!
)ffects 0rinciple 1 the right of the state to rule on economic and legal effects on its territory, stemming from activities conducted abroad.
2nother important principle introduced by modern international law is that of universal jurisdiction.,2- %The concept of universal jurisdiction in its broad sense ,is- the power of a state to punish certain crimes, wherever and by whomsoever they have been committed, without any required connection to territory, nationality, or special state interest.&, 3- 3niversal jurisdiction covers such crimes as piracy, war crimes, and genocide.
CONFLICT OF JURISDICTION
The principles for establishing jurisdiction "territoriality, nationality, and effect# inevitably lead to situations where jurisdiction is invo.ed by courts from several states. 0roblems with jurisdiction arise when disputes involve an e tra-territorial component "e.g., involving individuals from different states, or international transactions#. 4ince all Internet content is accessible from anywhere, any Internet user may be e posed to any national jurisdiction. /hen placing content on the /eb, it is difficult to .now which national law, if any, might be violated. In this conte t, almost every Internet activity has an international aspect that could lead to multiple jurisdictions or a so-called spill over effect.,4$ne of the most illustrative and frequently quoted cases that e emplify the problem of jurisdiction is the 5667 8ahoo9 Case in :rance., 5- The 8ahoo9 Case,6- prosecuted in :rench courts reiterated the high relevance of the problem of multiple jurisdictions. The 8ahoo9 Case was prompted by a breach of :rench law on ;a'i materials, which prohibits e hibition and sale of such objects, even though the website that provided these items 1 the 8ahoo.com auction website 1 was hosted in the 34, where the display of such materials was, and still is, legal. The court case was solved through the use of technical solution "geo-location software and filtering of access#. 8ahoo9 was forced to identify users who access from :rance and bloc. their access to the web-pages with ;a'i materials. (esides technical solutions "geo-location and filtering#, other approaches for solving the conflict of jurisdiction include: a# harmonisation of national laws and b# use of arbitration and other alternative dispute-resolution solutions. The harmonisation of national laws could result in the establishment of one set of equivalent rules at the global level. /ith identical rules in place, the question of jurisdiction would become less urgent. *armonisation might be achieved in areas where a high level of global consensus already e ists, for e ample, regarding child pornography, piracy, slavery, terrorism, and cybercrime. <iews are converging on other issues too, such as spam and Internet security. *owever, in some fields, including content policy, it is not very li.ely that a global consensus on the basic rules will be reached, since cultural differences continue to clash in the online environment more saliently than in the offline world., 7- 2nother potential consequence of a lac. of harmoni'ation is the migration of web materials to countries with lower levels of Internet regulation. 3sing the analogy of the =aw of the 4ea, some countries might become %flags of convenience& or the %offshore& centres of the Internet world. 3se of arbitration and other alternative dispute-resolution solutions in the ne t section ">.?#
Notes
7. :or more information see:
@ichard 0aul 4alis, A Summary of the American Bar Associations (ABA) Jurisdiction in Cyberspace Project: Achievin !e a" and Business #rder in Cyberspace: A $eport on %"oba" Jurisdiction &ssues Created by the &nternet'( available at: http !!"""#$%&' %$%(t)*+,(-#*).!-)t,($%/!07'1!S-$,/#ht1 # Aonathan Bittrain, Jurisdiction in Cyberspace, Internet =aw 0rogram, available at: http !!(23%)#$-"#h-)0-)4#%45!,$-"!1%&,(*6277661*45$%68695),/4, (t,*+ # Aurisdiction $ver Internet Cisputes: Cifferent 0erspectives 3nder 2merican and )uropean =aw in 5665, 2(2 4ection on International =aw and 0ractice "2nnual 4pring Deeting, ;ew 8or. City, Day E, 5665#: http !!"""#h*"-)4),(%#(*1!5p$*-4/!(*+t%+t!95),/4,(t,*+6,+t%)+% t#p4:. 2. 2mong the most important resources in this field is the Princeton Princip"es on )niversa" Jurisdiction "5667#: http !!"""1#51+#%45!h51-+)t/!,+/t)%%!p),+(%t*+#ht1$ # >. 0eter Dalanc'u., A*ehurst+s ,odern &ntroduction to &nternationa" !a"=ondon: @outledge, 7FFG#, p. 77>. 4. :or an overview of cases involving e traterritorial jurisdiction related to Internet content, see 8ulia 2, Timofeeva, /orldwide 0rescriptive Aurisdiction in Internet Content Controversies: 2 Comparative 2nalysis, Connecticut Journa" of &nternationa" !a-, 56, p. 7FF, 566H, available at: http !!//)+#(*1!-3/t)-(t;637861# 5. $ther court cases include the Ierman :ederal Court of Austice case against :redric. Toben, former Ierman national with 2ustralian nationality who had posted at an 2ustralian-based website materials questioning the e istence of the holocaust: http !!"""#,h)#*).!9h)!01<!01<+4p'26T*3%+#ht1$# 6. :or a following of the case development, see: http !!"""#%::#*).!$%.-$!J5),/4,(t,*+6-+46/*0%)%,.+t2!LICRA606=-h**! # G. @acist content and pornography "in cases presented above# are not the only controversial issues 1 other e amples include gambling, tobacco advertising, and sale of drugs.
