“The issue of global forum-shopping for actions for internet torts has scarcely been addressed. Internet liability is thus a vast field where the legal harvest is only beginning to ripen.”
During the last few years, the Internet has become a global mean of communication giving a banquet of opportunities to people providing them a wide range of facilities like international communication and business relationships. At the same time it became the foundation of new legal concerns faced and challenged across the universe which has forced the courts to re-examine the application of legal policy and ideologies in different grounds of law. The review of these set of guidelines and theory has impacted the conduct of rules of evidence in many countries.
SCOPE OF THE ESSAY.
This essay talks about the current jurisdictional issues that are mainly connected with the Internet, specifically highlighting on defamation on the Internet. It throws light on the issues related to the jurisdiction which are associated with the conflict of laws of speech across jurisdictions in other countries. There is a debate relating to the rules of jurisdiction which affect the laws with respect to choice of forum and choice of law that are operated in the major Commonwealth countries. The claim that the existing rules of jurisdiction are not considered satisfactory to resolve international issues related to jurisdiction is also talked about using the instances of how jurisdictions have in reality sought to control behaviour of the Internet. The practical effects of a few cases in particular with most important Australian case of Gutnick vs. Dow Jones provide an input for study, and exposes the traditional rules of jurisdiction which provided a sound basis for Internet regulation.
The term Jurisdiction means the legal right, power or authority to hear and determine a case. It mentions the court’s authority to adjudicate a dispute, how far the court can extend the authority and whether the case can be heard within the territory. When a particular country finds a person guilty for any crime within its territory it exercises jurisdiction over that person . Though, in few cases the courts have reacted vice-versa. However, in case of internet, we can consider that internet to a great extent weakens the implication of physical location of the parties any crime or tort committed in cyberspace and are not geographically based where as considering the law of every country is based on the territorial boundaries.
As said by Henry H. Perritt Jr. a professor at Villanova University School of Law ”The heart of the problem is that the Internet is inherently indifferent to geographical boundaries, while the legal systems of the world are built on geographical boundaries,”.
Internet is a marketing tool for any publication which can get customers very easily, as any material on the internet can be easily reached, accessed or purchased by any individual through a website at any corner of the world. It is a comparatively a modern mean which is extensively used from many years. It is a tool that creates a speedy, economical and extensively used communication. It works independent of national boundaries and is simple to extend information across them. Another uniqueness of it is that it once a particular matter is available on the Internet, it can be accessed everywhere in the world unless and until the publisher stops the users to access it. What will be the consequence if an article or a statement published and accessed by public on the Internet is offensive to someone?
DEFAMATION AND THE LAW
The result of a defamation dispute depends on what laws of a particular country are applied to the situation. When it comes to defamation on the internet, the courts of law presume jurisdiction over any defamatory Internet interactions which are uploaded in other nations when the defendant had a sound knowledge that the plaintiff would or may suffer a loss of reputation in the forum state, as a direct effect of the ostensibly defamatory speech. The defendant’s actions must aim the forum and the plaintiff in particular. Also, the defamatory statements must have injured the plaintiff’s actual status in the community of the targeted forum. The courts may use the factors such as the actual reputation of the plaintiff in the forum at the moment of publication, the importance of the plaintiff’s reputation in carrying his business or profession and the level of social involvement of the plaintiff in the forum. Airways Corporation of NZ v Pricewaterhouse Coopers Legal .
Practically speaking greater assurance is provided for the defendant because the court does not investigate the laws of defamation of each and every country where the article or any publication which is read or seen. The defendant should have the capability of assessing the forum in which they are sued by considering the factors like the residency of the plaintiff at the time of the publication, the relation between the speeches that is published with the plaintiff’s line of work, the audience in the targeted jurisdiction. Taking the review of a few cases which were related to internet jurisdiction we get a better understanding as to how the courts define and treat jurisdiction particularly the international jurisdiction in the realm of cyberspace. The leading Australian case of Gutnick has provided a great contribution for study. It also gives us an interpretation of the conventional policy of jurisdiction which has provided a sound basis for internet regulation followed by a few other cases been heard across the world. Theoretically speaking a national government has the power to extend its jurisdictional powers to apply its laws any activity related to internet in any country. However considering the practical environment, enforcing such laws against the people of foreign countries is unreal as the country seems to apply its laws to any tort or crime which is outside its geographical boundaries. In certain situations where it is reasonable to do so countries do practice the same but such a practice is difficult to gauge in an online environment. However there are a few cases where government has exercised and extended their powers of jurisdiction.
LAWS IN AUSTRALIA
Laws of Australia have two foundations which provide the authority to the court to claim jurisdiction on a case which has the basis of a tort if the tort is committed in Australia; or if there is any occurrence of damage in Australia. The common law in Australia also states that any statements or publications whether it be oral or spoken, seen or heard and comprehended by the person who reads it or hears it, such a statement or publication shall be considered to be a defamatory statement. In the context of internet, it is then important to establish where a tort is committed and where the damage is suffered. The Supreme Court of Australia and New South Wales has provided with their hearing on the matters which are related to defamation on the internet.
In the case of Gutnick v Dow Jones the court had very well established that even though the defamatory article was available on the internet through the web server in the United States, it was downloaded by people residing in Australia. The plaintiff was residing and conducting his business in Australia and it would spoil his reputation and affect his business in his own home country. The courts held that as the article was downloaded in Victoria it constitutes its publication in Victoria and the plaintiff was entitled to bring his claim in Victoria. When Australia follows its customary defamation law the case is quite clear: the damage is considered suffered where the article is published. Following this case, the Supreme Court of New South Wales followed in the same direction in Airways Corporation of NZ v Pricewaterhouse Coopers Legal.
In another case Zippo Manufacturing Company v Zippo Dot Com Inc – Zippo Manufacturing Co., the plaintiff was a manufacturer of tobacco lighters based in Pennsylvania and brought a trademark breach action in their home state. The Zippo Dot Com Inc., was an Internet news service provider with three different levels of subscription to its members on the internet based in California. From the time it was created, it captivated more than 3000 Pennsylvania members. However, it did not have any offices nor hired any employees or agents in Pennsylvania. The company pleaded that there was a lack of personal jurisdiction and that the case should be dismissed. However, throwing the lights on the facts of the case the court found that there was an interaction between Zippo Dot Com Inc and the customers for which the jurisdiction can be claimed. The judgment of this case has been then applied in several inter-state American cases.
However there have been few cases where the courts have passed judgments which are controversial to jurisdiction. In Macquarie Bank Ltd v Berg, an Australian resident’s grant to an injunction was declined and was also refused to hold back a defendant who was based in the United States from printing a material on a website purportedly defamatory of its status under the law of New South Wales. The two reasons for this was that it would not be easy to implement an order against a defendant based of foreign country or of a foreign origin; and also the outcome of such an order would be to bring under control any published material in any nation and overlay the law of New South Wales on the world. The concern of such a jurisdiction above would be thus dominant.
REVIEW OF THE CASE- GUTNICK VS. DOW JONES
With a deep insight in the case of Gutnick v Dow Jones the question that arises in mind about jurisdiction over internet defamation is to occupy a complex equilibrium among the liberty of language or words and protection of an individual’s position. The need of synchronization of different state’s approaches to jurisdiction over Internet defamation is quite detrimental which directs us to an undesirable insecurity for anyone who accesses the Internet. Moreover, the existing position puts a force on state courts to decide on the subject which can be dealt with on an international level
A question still arises as to what kind of laws need to be applied if the damages have taken place in Australia and somewhere else as well. Taking the case of Gutnick, we can say that the case does not elucidate on whether the Courts of Australia has the right to claim jurisdiction for a dispute as regards to the damages that have happened somewhere else and if it has the authority to do so, then it will have to decide if the court should apply laws of Australia with regards to all damages or apply the laws of the countries of each damage.
Therefore the major risk to the liberty of speech gives us the impression that all nations have different policy on internet defamation and damages which may create a trouble if publishers begin to prohibit certain jurisdictions from the right to use their published materials as the laws of defamation of that particular nation would or may be harsh.
The challenge to decide when the courts have jurisdiction on any Internet activities, it would be an easy task if the Internet were limited to a particular geographical region, or if it were efficiently divided along territorial borders into separate confined networks. Like all the other laws till date, defamation is defined within the geographical areas of jurisdiction. The Internet by its nature being international, with web unconstrained by state or national borders it provides many challenges to the courts for the application of legal rules to actions. There is no hypothetical basis for separate set of rules framed in law of jurisdiction for internet conduct and therefore the courts still have to consider and apply the traditional rules of jurisdiction which are examined when they face any international internet dispute. The problem is the difference of legal system and jurisdiction pre-dates the internet. We can clearly state that decisions that are given by the courts of law in any disputes which are related to jurisdiction over the defamation on the internet lack the potential consequence which are undeniably of universal importance. Therefore, the problem of world wide jurisdictional claims over internet defamation needs to be addressed in an appropriate forum. The reason being is that courts of different states and countries are governed by diverse laws and apply in different ways, which results in different kinds of conclusions though in the same matter.
Assuming that it is a too arduous task to bring into line all national defamation laws, the next best thing would be to frame and regulate new or different set of principles and laws for enforcement of internet defamation disputes. Therefore, if all or most of the countries have similar laws related to internet defamation then it would provide an huge certainty of what rules would apply and which countries would exercise jurisdiction in the matter. Both the publisher and the injured party would benefit from it. “What are we to do with borders that become meaningless? We’re going to have to think of new ways to structure. Our relationships with other nations so that people know there are no safe place to hide.”