Elements for establishing personal jurisdiction are currently
based on a conception of transactions and occurrences taking place in
territorial space. The internet makes possible commercial transactions
between parties from two different countries with no contact other than
the seller putting up a webpage on a server somewhere in the world,
and the buyer accessing that page from a foreign country. Has the internet
company, by posting its content, established contacts sufficient to
fall within the jurisdiction of the foreign country? Where has the transaction
itself taken place? The answers to these questions will depend largely
on how we develop the foundations of personal jurisdiction over parties
conducting transactions over the internet.
A recent set of court battles surrounding American internet
company Yahoo, Inc. sheds light on the very complex and fundamental
problems of establishing jurisdiction based on internet use. Both French
and German courts have ruled that Yahoo must block domestic users from
access to pro-Nazi websites, and auctions of Nazi memorabilia. The French
court has issued a deadline for Yahoo to restrict French access to these
sites or face fines of more than $14,000 per day. The German court has
gone so far as to say that any website accessible from Germany is subject
to German law. If this principle were to govern in all countries with
internet access, the implication is that websites would be subject to
the laws of every country. This would leave internet governance to an
uncoordinated, anarchic set of laws fraught with contradictions and
uncertainties.
Yahoo argued that these courts had no personal jurisdiction
over the company, but Yahoo has complied by removing all pro-Nazi pages
from its site so that no one in any country has access to them. This
solution allowed Yahoo to avoid the difficult jurisdictional problem.
In the case of Nazi memorabilia, only a handful will protest the removal
of such unpopular content. But will it be acceptable if China outlaws
falun gong sites that are legal in France? What about a US ban on offshore
gambling sites? A Russian ban on a Chechen rebel webpage?
If every country is allowed to place restrictions on internet
content and levy fines on companies for non-compliance, the legal infrastructure
that the internet is built upon will crumble under the weight of unlimited
and unsolvable conflict. On the other hand, if countries are unable
to regulate the content of the internet, cyberspace can undermine the
fragile social compromises reflected in the domestic constitutions and
statutes like those governing pro-Nazi media in France and Germany.
The challenge in establishing a governance system for the internet lies
in determining when a foreign court can make a valid, binding ruling
over an internet company and when it can not. The conflicts surrounding
the Yahoo case foreshadow the difficulties ahead.
.
