Michael Girard: e-Lawg - Jurisdiction

Website does not give personal jurisdiction

Wed, 11 May 2005 01:56:40 GMT

Barbados website doesn't give Pennsylvania courts personal jurisdiction.

The U.S. District Court for the Eastern District of Pennsylvania has held that neither a website operated by a Barbados hotel nor a third party site used for making reservations at the hotel was sufficient grounds for the exercise of personal jurisdiction.

Mon, 10 Jan 2005 23:03:21 GMT

Lawyers Alarmed by International Libel Lawsuit Trend [OJR: Copyright, Law & Ethics]

Choice of Law

Sat, 18 Dec 2004 02:57:07 GMT

In Roy v. North American Leisure Group Inc., the Ontario Court of Appeal had to consider choice of law rules.The plaintiffs had allegedly contracted an airborn virus on board a cruise ship. The operator had a choice of law clause in its contract selecting the law of England. The plaintiffs had missed the limitation period if the law of England applied.

The motion judge had determined that Canadian law applied. The Court of Appeal disagreed. Following Tolofson, the Court held that the "choice of substantive law is the law of the jurisdiction where the acitivity occurred".

In addressing the limitation period, the Court stated:

"[the] denial of the opportunity to claim damages by reason of the expiration of a limitation period does not constitute injustice sufficient to support an exception to the lex loci delicti rule."

Ontario Court of Appeal Says Internet Defamation is Different than Defamation in Other Media

Fri, 18 Jun 2004 01:57:10 GMT

In Barrick Gold Corp. v. Lopehandia, the Ontario Court of Appeal upped the ante on internet libel, awarding $125,000 to the plaintiff. Lopehandia had claimed that he nominally owned a Chilean mine site acquired by the plaintiff. The defendant had posted on various internet bulletin boards messages accusing the company of fraud, money laundering, orgainzed crime, and crimes against humanity among other things.

The trial judge had concluded that the postings were an "emotional, often incoherent" diatribe that no reasonable person would take seriously. She awarded $15,000.

The Court of Appeal disagreed, holding "that conclusion misjudged the target audience and the nature of the potential impact of the libel in the context of the Internet." The Court held further that the use of the internet made his blizzard of messages potentially more damaging and more believable because of the speed, scope and blunt , anonymous nature of statements on the web.

The Court posited:

"Is there something about defamation on the Internet - ‘cyber libel’, as it is sometimes called - that distinguishes it, for purposes of damages, from defamation in another medium? My response to that question is ‘Yes’."

"Thus, of the criteria mentioned above, the mode and extent of publication is particularly relevant in the Internet context, and must be considered carefully. Communication via the Internet is instantaneous, seamless, inter-active, blunt, borderless and far-reaching. It is also impersonal, and the anonymous nature of such communications may itself create a greater risk that the defamatory remarks are believed."

. . .

"She failed to take into account the distinctive capacity of the Internet to cause instantaneous, and irreparable, damage to the business reputation of an individual or corporation by reason of its interactive and globally all-pervasive nature and the characteristics of Internet communications"

The Court of Appeal increased the damages to $75,000 and awarded an additional $50,000 in punitive damages.

The Court also granted an injunction against the defendant. In spite of the fact that the defendant resided in B.C. and had not attorned to the jurisdiction, the Court of Appeal concluded that Ontario had jurisdiction because the there was damage to personal property, Barrick’s goodwill, in Ontario.

The Court quoted from Matthew Collins, The Law of Defamation and the Internet:

"The Internet represents a communications revolution. It makes instantaneous global communication available cheaply to anyone with a computer and an Internet connection. It enables individuals, institutions, and companies to communicate with a potentially vast global audience. It is a medium which does not respect geographical boundaries. Concomitant with the utopian possibility of creating virtual communities, enabling aspects of identity to be explored, and heralding a new and global age of free speech and democracy, the Internet is also potentially a medium of virtually limitless international defamation."

Ontario will take jurisdiction over internet libel, regardless of where the defendant resides and will grant injunctions against defendants outside the jurisdiction.

Jurisdiction and the Web

Tue, 06 Apr 2004 00:16:44 GMT

Michael Geist has an article in the Toronto Star today on the divergence in internet laws and jurisdiction. He draws on the recent Canadian copyright decision on downloading music as well as a corporate survey of businesses; their number one concern is exposure to foreign lawsuits arising out of their internet initiatives. This is probably putting a chill on e-business development, but it is also encouraging localization of the internet environment.

Long Arm - not in Oz

Sun, 28 Mar 2004 21:26:53 GMT

Further to my recent post, I am glad to see that the Australian magistrate has blocked the attempted extradition of an Australian to the U.S. to face criminal copyright charges. If he has broken the law, he should be charged in Australia. If he hasn't broken local law, he should not face criminal liability in the U.S.

The Long Arm of the Law

Sun, 14 Mar 2004 15:09:41 GMT

I found this story a little disturbing. An Australian man who never set foot in the U.S. is facing extradition to the U.S. to face charges of criminal copyright breaches. The man is alleged to have been part of a conspiracy that cracked codes on copyrighted material and made it available to an internet club (a Warez site).

Do actions on the internet invite worldwide internet jurisdiction? Should sovereign states act to extradite their nationals to a foreign jurisdiction for actions on the internet? While I do not agree with pirating of software, shouldn't that be a matter for the local jurisdiction's criminal code? (I find it difficult to believe that Australia does not have statutes that cover this activity, but taking the article at face value, if you are not breaking local criminal law, why should you face extradition to another country.)

Thu, 13 Nov 2003 02:25:45 GMT

Internet Jurisdiction. Found a very interesting post on George's Employment Blawg about internet jurisdiction thanks to Ernie:

Federal jurisdiction over out-of-state corporation based on maintenance of website

The Eighth Circuit, after lengthy analysis, concluded discovery should have been permitted into facts relating to Prudential's website and how and to what extent Missouri citizens used it. Under proper circumstances, therefore, the court concluded, maintaining a website may be sufficient contact with a state to support jurisdiction.

Lakin v. Prudential Secs., Inc. (8th Cir. 11/04/03) [pdf] [Tech Law Advisor]

Thu, 04 Sep 2003 21:45:59 GMT

Gator v. L.L. Bean.

The Ninth Circuit found that California courts could exercise general jurisdiction over L.L. Bean, based on its continuous and systematic contacts with the state, specifically those contacts arising from its operation of a 'virtual store' over the Internet, national advertising and mailings into California. While it had never registered to do business in California, L.L. Bean derives 6% of its sales from California and sources products from there. Bancroft & MAsters v. Augusta National, 223 F.3d 1082 (9th Cir. 2000) is one of the few other 9th Circuit cases evaluating whether contacts over the Internet can give rise to general jurisdiction (in that case, they didn't).

L.L.Bean has sent a demand letter to pop-up ad promulgator Gator. Gator filed a declaratory judgement in California. I recently downloaded Google Taskbar 2.0 and it has blocked 200 pop-up ads in the week I have had it. That's 200 fewer interruptions in a week.

Gator.com v. L.L. Bean, 02-15035 (9th Cir. Sept. 2, 2003).

[The Trademark Blog]

Wed, 23 Jul 2003 21:07:38 GMT

Nice II. EFF's Cindy Cohn, on the MIT/Boston College motion to quash RIAA subpoenas: "It's very troubling that the RIAA's position is not only that they can throw out our basic privacy rights but that they can force all ISPs nationwide to respond to subpoenas out of a single court rather than a local court. In other words, we can add basic notions of jurisdiction to the long list of things that the RIAA is willing to set aside in their crusade." [Copyfight: The Politics of IP]

Thu, 03 Jul 2003 14:17:13 GMT

N.Y. Court First to Rule on Telecommuting [Law.com]

Tue, 17 Jun 2003 16:53:16 GMT

Internet Law 2003 Conference. Internet Law 2003, Program of Instruction for Lawyers, Harvard Law School, presented byProf. Jonathan Zittrain, Prof. Charles Nesson and John... [beSpacific]

Tue, 17 Jun 2003 04:52:19 GMT

Program of Instruction for Lawyers, 2003: Day One, Jurisdiction.

Today, we're in the Vorenberg Classroom on the Harvard Law School Campus for PIL 2003. Our class Web site is available online. Jonathan Zittrain is talking about jurisdiction. Here are some notes.

The day opens with John Perry Barlow's classic Declaration of Independence for Cyberspace, which we often use to open the conversation of Net law. One of the lawyers in the class says "it's dated." Why, we ask? "The poets are losing," he says.

Jurisdiction on the Net is about problems with boundaries: global internet, local laws. Net is meant to be location independent. That causes people trying to enforce things or seek redress some headaches.

* When does a sovereign have the right to say: "You've done something on the Net somewhere that has an impact on someone in our country, so we want to do something about it."?

* Likewise, how can an individual or company who is harmed by someone far away (by some form of speech on the Net, e.g.) get the harming party to stop?

* How can an individual or company do business on the Net when they might be held to the most stringest laws anywhere in the world that the Net reaches?

Example: A company broadcasting from Canada over the Net, called iCraveTV: the business model called for activities that were clearly illegal under the United States' 1992 Cable Act. There was no consent for the rebroadcast into the United States. Canadian law was less clear on the matter. A court in Pittsburgh asserted jurisdiction becuase American citizens can see the broadcasts from American turf. A TRO issued, and iCraveTV folded. Personal jurisdiction was not a problem in this case, because the people against whom the judgment was enforced were in the US.

Sealand: the "safest place to store data in the world," they claim. Havenco operates the servers on Sealand. As a hypo: the operator of iCraveTV is now living on Sealand and serving it up from there. Could the US court have gotten personal jurisdiction over that person? Yes, says JZ, not a slam-dunk, but yes, based on a digital impact on US citizens.

Question: are there any limitations to the US's reach under its long-arm statutes? Does personal jurisdiction extend to anyone on the globe? It could, so long as the US courts found it of interest and the marines were willing to go there.

What constitutes internet law? Is jurisdiction just a civ pro problem? JZ says he finds it interesting when it's not just a civ pro problem.

What are the criteria that a country, like Portugal, might use to determine whether or not to exercise jurisdiction? Hope for comity among the countries that care about these issues. Asked another way, when might you, as a sovereign, want to exercise restraint?

Dow Jones v. Gutnick: The United States would not have had much of a problem with the Barron's piece about Mr. Gutnick. What comity does the US owe to the Australians to hear the case in the US under Australian law, if Gutnick were to travel to New Jersey to bring suit where Dow Jones (the parent company) is based. The US court in New Jersey would, almost certainly, not agree to hear the suit under Australian law. So, Gutnick files not in New Jersey but in Australia, and the Dow Jones lawyers seek to have it moved back to New Jersey. No dice. A court in Victoria, Australia, does exercise jurisdiction -- somewhat reluctantly. The court emphasizes the fact that Barron's online charges for the premium subscriptions, and that 1700 hits were from people had paid for these subscriptions in Australia (of about 550,000 hits on the page of the story, "Unholy Gains").

The UDRP: You agree to submit to this dispute resolution policy when you register most domain names (all names in .com, .net and .org). If you lose, the registrar moves the name to whomever wins in the proceeding. Global internet, global law.

Or you might have local internet, local law. Yahoo! France is one extension in this direction. Yahoo! had a sub in France, so PJ is not a problem. Yahoo! urged the French court not to apply its law to the problem of sales of Nazi memorabilia. But the French, after convening a panel of experts, decided to apply their law, based on the presumption that you could use a service to determine, with up to 85% accuracy, where a user, accessing your site, is based. The judgment would apply to the French users. Yahoo! was required to screen their sites such that French users, based on reasonable efforts, were blocked from accessing Nazi paraphrenalia. Yahoo! has since run to the US courts. Consider, likewise, the google.de and google.fr example related to Nazi-related content.

Or think also about how sovereigns are asking local ISPs to filter at the local level. China filtering approach, where the Chinese ISPs are required by the government to filter out certain requests for sites, demonstrates this approach.

Commonwealth of PA: the AG can swear out an affidavit that a certain site has child pornography. The law is intended to require ISPs locally to cut off access for PA residents to those sites or other sites hosted with it.

End of class. See you tomorrow for IP day!

[John Palfrey News]

Mon, 16 Jun 2003 14:23:47 GMT

12-thousand plus signatures on the Petition to Reclaim the Public Domain [Copyfight: The Politics of IP. Corante.]

Yun v. Ibid.com

Mon, 16 Jun 2003 13:13:54 GMT

California Court of Appeals declines to enforce arbitration clause in clickwrap licence

Tue, 03 Jun 2003 13:55:36 GMT

Fourth Circuit Reverses Barcelona.com Decision.

The Fourth Circuit has reversed the lower court in the Barcelona.com case. The District Court had held that the owner of a Spanish national trademark registration could invoke the Anti-Cybersquatting Consumer Protection Act. In contrast, the Fourth Circuit held today that "It requires little discussion that this use of Spanish law by the district court was erroneous under the terms of the statute."

Barcelona.com, Inc. v. Excelentisimo Ayuntamiento de Barcelona, No. 02-1396 (4th Cir. June 2, 2003).

[The Trademark Blog]

Mon, 26 May 2003 14:29:32 GMT

Important 4th Circuit Case on Definition of Trademark Use By Non-U.S. Companies.

37 page opinion, 25 page dissent on whether a non-us company can bring a Lanham Act claim based on the mere advertisement of its trademarks in the U.S. Important case in the era of the Internet, analysis to follow.

International Bancorp v. Societe des Bains de Mer et du Cerde des Estrangers a Monaco, No. 02-1364 (4th Cir Cir. May 19, 2003).

[The Trademark Blog]

Two Posts on Jurisdiction for Internet Libel

Wed, 05 Feb 2003 17:20:38 GMT

In Young v. New Haven Advocate, the 4th U.S. Circuit Court of Appeals came to a different conclusion on jurisdiction for internet libel. The Court held that two Connecticut newspapers (whose stories appeared on-line) did not manifest an intent to aim their web sites or the posted articles at a Virginia audience. This prevented the exercise of jurisdiction in Virginia on constitutional grounds.

Jurisdiction for Libel on the Internet

Wed, 05 Feb 2003 17:04:19 GMT

The Australian High Court held (back in December, 2002) that residents of Australia who suffered damage to their reputation in Australia through a libel on the internet could sue in that jurisdiction, regardless of the location of the libel publisher. Dow Jones & Company Inc. v Gutnick, [2002] HCA 56 (10 December 2002).

It is likely that the rules for jurisdiction for libel over the internet may develop differently than rules applicable to other torts or breach of contract. One difference is that Dow Jones (Barron's) publishes to Australia and has subscribers there; presumably there was no evidence of publication or subscribers of the two Connecticut newspapers in Virginia.

Jurisdiction - via the Web

Thu, 30 Jan 2003 18:36:35 GMT

Does operation of a web site create personal jurisdiction?

Excellent analysis of jurisdiction by the U.S. Court of Appeals for the Third Circuit

"The mere operation of a commercially interactive web site should not subject the operator to jurisdiction anywhere in the world."

Link via How Appealing

Plebiscite Overrides VLT Agreements

Thu, 30 Jan 2003 17:40:13 GMT

The SCC holds that a provincial law permitting local plebiscites to determine whether VLT's (video lottery terminals) could be offered in a municipality was intra vires and constitutional. The plebiscite had the effect of terminating previously granted VLT agreements in the municipality. Siemens v. Manitoba (Attorney General) [2002] S.C.J. No. 69 2003 SCC 3

Jurisdiction - tort committed when orbiting satellite damaged

Sat, 25 Jan 2003 17:21:55 GMT

SCC confirms Quebec Court properly accepted jurisdiction in action by Quebec manufacturer of part of an orbiting satellite which was allegedly damaged by the negligence of U.S. defendants. (Spar Aerospace Ltd. v. American Mobile Satellite Corp., 2002 SCC 78).

Fri, 24 Jan 2003 19:37:12 GMT

Canada: New Net Laws Reach Beyond Borders. For Smaller Nations Such as Canada, it´s Getting Harder to Effectively Create Independent Policy (Goodma... [Mondaq: US]

Mon, 13 Jan 2003 12:08:16 GMT

Kazaa Can Be Sued in United States, Judge Rules [GigaLaw.com]

Fri, 10 Jan 2003 21:13:33 GMT

Decentralized is not good for copyright plaintiffs suing KaZaa - Howard Rheingold has a nice post about the legal difficulties being faced by the group of entertainment companies that are suing in Los Angeles to shut down KaZaa (citing this article). Welcome to the world of multi-jurisdictional practice. And please note it's an "international" world (which is to say, not a 'small world').

I remember having to read the World Wide Volkswagon case in law school, which involved a guy who bought a car in New York but drove it to Oklahoma and got in a car accident. The case wrangled with whether it was okay to sue the car manufacturer in Oklahoma, and the Supreme Court said it was because the car manufacturer put the car into the "stream of commerce" and therefore could forsee someone using it in Oklahoma. I remember one wiseguy in the back muttering during a class discussion of the case that he had read that "90% of all traffic accidents occur within 5 miles of the person's home," and so "how come the plaintiff had to be in the other 10% and make life difficult for first year law students everywhere?"

Well, as the KaZaa case shows, life is going to be even more difficult now, and not just for first year law students. First, you have the P2P/decentralized problem of who do you sue? Well, okay you sue whomever is running the website that is distributing the KaZaa software, but even if you shut them down aren't all the current users just going to keep on doing their P2P thing? So you've got that problem. Plus, it appears that the suit involves several different countries, as the aforementioned article reports:

"The three young men who developed the software hail from Estonia. They were commissioned to do the work by a company in the Netherlands. That company has since sold the software to another based in the Pacific island nation of Vanuatu, whose executives work in Australia.

Filing suit against Kazaa, therefore, has forced the entertainment industry to negotiate the legal rules of no fewer than five countries on three continents."

Well, I'm sure that the entertainment industry is sufficiently motivated and financed to be able to afford to pursue its claims. How it will turn out will be interesting, though. Napster didn't get shut down as quickly as many predicted, and that was a case without any of the complexities of the KaZaa case. Stay tuned lovers of personal jurisdiction and other hobgobblins of prodecural complexity.

[Ernie the Attorney]