The internet has come a long way from a lawless nature to an entity where there are laws and guidelines/ regulations that monitor the way it is utilized. At the core of this is the call for jurisdiction in relation to resolving all civil internet jurisdictional issues. The question whether courts have authority to be presented with cases that are related to specific people and activities (subject matter) but in a narrowed sense it also covers what rule should be appropriate (‘choice of law’), whether the court is appropriate and competent to handle the issue (‘choice of court’) and the application of decisions is referred to by the traditional jurisdictional standards provided (Andrew, np).
Various governments have a wide array of rationalizations for internet filtering that consists of national security and the protection of community standards. Traditional jurisdictional standards have proved to be sufficient as the importance of accountability, transparency and inclusiveness has become a focal point of resolving all civil internet jurisdictional issues. All this is just that the law is able to maintain a reliable, efficient, and global medium for communication through the internet.
Various countries have different ways of monitoring the internet and they do this by censuring content which is basically limiting the sites citizens can visit. This has been brought about by the arrival and widespread use of the Internet which has presented new challenges for traditional jurisdictional laws. Both censorship and filtering wield a great impact over matters that include civil freedoms, foreign jurisdiction matters, and World Wide Web governance due to the fact that there are very few procedures set up to check on World Wide Web jurisdiction issues.
The big question for procedural law here is how do we apply traditional jurisdictional standards of law effectively to the resolving of internet issues? This is against the backdrop of the advent of the Internet and the World Wide Web (Johnson and Post, 45). The everlooming circumstances where parties find themselves being presented before courts as a result of various activities has led to courts now being initiated into uncharted territories where the traditional concept of personal jurisdiction is often lost or misunderstood.
Formerly, the territorial principle of jurisdiction “formerly based on the postulation that the absoluteness of territories and sovereignty within them” (McKeough, Stewart & Griffith, 56) The state borders were an innate constraint to the state power to administer law, giving an opportunity to delineate those concerned with the customs and to make sure feasibility of legal enforcement. According to the territorial principle, a state has authority over material goods, persons, legislations, affairs within its borders. The territorial principle produces fewer controversies for no one compromises the jurisdiction of the state to impose legislations to the activities in its border.
Formerly, there were numerous attempts to lessen application of the territorial principle to cyber-activities but they were hastily put down by courts. However, traditional jurisdictional standards have proved to be sufficient to resolve all civil internet jurisdictional issues
Over the years, the issue about traditional jurisdictional standards in relation to civil internet jurisdictional issues have been a bone of contention not only to the Australian legal system and courts but also in other international jurisdictions, especially in the developed world. This is so since legal systems have been evaluating the issue concerning traditional personal jurisdiction which is based on the internet. Supreme Courts all over the world have avoided this issue thereby allowing other subordinate courts and legislative bodies to come up with laws or policies governing this issue (Brien & Brien, 79).
Nevertheless, this has resulted in several flaws as the internet is viewed as uncontrollably ubiquitous, which is rather a very unrealistic way of viewing the situation. In addition, this outdated view has resulted in the legal systems, more so the courts to deviate from the traditional approach in jurisdictional analysis by coming up with injudicious jurisdictional standards, policies and regulations.
Up to date there are two landmark Australian case laws that the Australian High Court has issued rulings, which have provided basis on the jurisdictional matter over time: “Macquarie Bank v Berg” and “Gutnick v Dow Jones”.
Gutnick v. Dow Jones
In December of 2002, the High Court of Australia passed a ruling in regard to jurisdiction for issues arising out of a publication on the World Wide Web. In this case, the High Court ruled that Australian courts have authority over an allegation of defamation on grounds of materials that was published on the web out of Australian territory.
This ruling is unique because no other country has allowed jurisdiction over the internet. This judgement was controversial because the materials in question were published in the US on Dow Jones’ New Jersey internet server machines. This ruling made Australia the only country that permits an action against a foreign defendant on the grounds of only on a web download in its territory. Nevertheless, the structure of the Gutnick decision may have opened the doors for other countries to follow the High Court’s precedence.
The Gutnick ruling raises concerns, which the territorial borders of expression protection could breakdown in the World Wide Web age. Legislations in regard to the balance between freedom of expression and the protection of reputation differ greatly among states. Nevertheless, the Australian court did not regard the inferences that the collapse of border between territorial powers could have on this relation, and rather automatically applied chronological example to the web. This stern application to the web of model created for off line publication may have created a disturbing outcome on the internet expression globally by reducing the level of expression protection on the internet to the lowest common factor (Dow Jones and Company Inc v Gutnick).
However, the Gutnick ruling’s narrowed focus on example doesn’t provide enough protection to international freedom of expression, and the Australian legislation should take on a traditional jurisdictional approach to protect internet speakers who don’t aim their expressions at Australia.
Macquarie Bank v. Charles Berg
This case decision was that the defamation of a person, as the issue may be, is allowed so long as the other person is in another state. In this case, Charles was a disgruntled former staff of Macquarie Bank, and as a matter of course, he chose to publish defamatory details of some senior partners of the former employer. In place, the bank sued Berg in the New South Wales Supreme Court. Nevertheless, the main issue came up as the plaintiff was now under United States territory.
The court’s decision ruled that though the material amounted to defamation, as a procedural issue it couldn’t give an injunction for an ex-parte inter-locutory case. The judge argued that if they took jurisdiction for a site in California, they could then overlay their legislation onto any other state. In essence, just for the reason that Berg was in a foreign country, he was permitted to vilify as he wanted.
Traditional jurisdictional principles and policies require that parties present themselves in order to be able to act within the Australian jurisdiction, whereby such actions of the concerned parties may result in a cause of action, in addition the rise of a cause a cause of action should be backed up by the assertion of the constitutional which supports the jurisdiction of the case. “In the context of intentional torts, the Court has held that defendants are amenable to personal jurisdiction in states where they direct their intentionally tortuous conduct and produce harmful “effects.”
The courts have shied away from these principles where Internet contacts are concerned for fear that universal jurisdiction would result. “Because the Internet is omnipresent,” (Garnett, np), the argument goes, permitting electronic contacts to fulfil the minimum contacts requirement would make the person placing information on the Internet… subject to personal jurisdiction in every State. Therefore due to this policy, is has been argued that it would subject internet actors to jurisdiction all over the Country.
Nevertheless, International jurisdiction does not automatically arise by applying the principles of traditional jurisdiction in internet contacts. Therefore, there should be a global acceptance by the legal system of the internet activity as deliberate conduct of the parties whereby it lacks restrictive guidelines which is required in the internet civil suits. Hence, people who are involved in internet activities should be in a position to learn that their activities either intentional or unintentional will be available to the global audience. Nevertheless this cannot be a hindrance to civil actions as there exists technology that can trace the geographical origin of a given internet activity (Yee, 245).
Traditional jurisdiction should not be altered or abolished when it comes to the issue of resolving internet civil jurisdictional issues, in additional basing the whole issue on traditional principles would also decrease the chances that parties, more so defendants with network- interceding who will be accustomed to a different treatment as opposed to defendants whose contacts do not interface through the internet. When a consistent legal legislation is put in place for both Internet and non-Internet matters, Internet parties should not be made to have the option of facing a stringent or a lenient standard simply because of the medium through which their connection with the issue was made.
In addition, the traditional jurisdiction approach derives its significance by adhering to its policies would result in avoiding obsolesce issues arising due to tests that are deeply rooted in the internet traditional investigation. For example the “zippo test” takes its attributes from the internet which has resulted in the courts altering its approach to match that used by the media in order to effectively tackle civil issues arising out of internet jurisdiction matters (Beale et al, 27).
Also, the traditional approach is more transparent and credible notes “The result is that Internet actors are no longer given unwarranted protection from the reality of their unrestricted Internet activity—that it is directed into every jurisdiction in the country—and instead incur only the burdens that should accompany the benefits of operating on the Internet. Therefore courts have taken up an approach whereby, they analyse an issue in its form and jurisdiction and see where the cause of action would a have risen.
For example if a defamation publication is made, the court will analyse the case by taking into consideration the jurisdiction where the cause of action would have risen, nevertheless this has proves a difficult given the nature of the internet technology whereby the publication could have occurred in more than one place thereby granting such a civil suit an exemption (Latimer, 127). Such an exception is hardly warranted and unduly protects Internet actors from answering for their conduct in jurisdictions where the use of other media—such as conventional publishing or broadcasting—would render them accountable. However, traditional approach to jurisdiction matters calls for eradication of this biased advantage by acknowledging instead of rebutting the fact.
Traditional jurisdiction approach has made it quit hard for courts to deny jurisdiction of internet civil suits in circumstances where the issue would be admissible in the court’s jurisdiction. This is normally accessed using the Calder “effects” test, which analyses the court’s jurisdiction of a given internet issue under a given jurisdiction (Wimmer and Pogoriler, 69). By bringing into light the examination of Internet contacts the prerequisite that a defendant be independently be linked with a state, apart from the connection prompted by a defendant’s charge on a tortuous act against a resident, courts have duplicated their inadequate view of Calder in the Internet context. Such a condition has allowed courts to avoid affirmation of jurisdiction against intentional tortfeasors.
Works Cited
Andrew, Nicholson. “Is Jurisdiction now out of this world?” Find Law Australia. 2002. Web.
Beale, Fitzgerald et al. Internet and e-commerce law: Technology, law and policy. Pyrmont, NSW: Lawbook Company, 2007. Print.
Brien, Christopher & Brien, John. Netlaw. Sydney: LexisNexis Butterworths, 2004. Print.
Dow Jones and Company Inc v Gutnick HCA 56; (2002) 210 CLR 575; 194 ALR 433; 77 ALJR 255 (2002).
Garnett, Richard. “Regulating Foreign-Based Internet Content: A Jurisdictional Perspective.” University of NSW Law Journal. 2000. Web.
Johnson David and Post David. Law and Borders – The Rise of Law in Cyberspace (1996) Stan L Rev 1367 in, Fitzgerald, Beale Cyberlaw: Cases and materials on the Internet, digital Intellectual property and electronic commerce. Australia: LexisNexis Butterworths, 2002. Print.
Latimer, Paul. Australian Business Law, 30th ed. Sydney: CCH, 2011. Print.
McKeough, Jill, Stewart, Andrew & Griffith, Phillip. Intellectual property in Australia, 3rd ed. Sydney: LexisNexis Butterworths, 2004. Print.
Wimmer, Kurt and Pogoriler Eve. International Jurisdiction and the Internet. Washington, D.C: Covington & Burling, 2004. Print.
Yee, Fen L. Cyberspace Law: Commentaries and Materials. Victoria: Oxford University Press, 2003. Print.