Differences

This shows you the differences between two versions of the page.

Link to this comparison view

Both sides previous revision Previous revision
Next revision
Previous revision
cyberlaw:jurisdiction [2019/01/21 18:26]
witta
cyberlaw:jurisdiction [2019/01/24 17:20] (current)
witta
Line 1: Line 1:
 # Jurisdiction # Jurisdiction
  
-**Chapter Overview**+##Chapter Overview
  
-This Chapter ​will introduce ​you to the concept of jurisdiction in the internet contextdifferences between ​personalsubject ​matter, in rem and enforcement jurisdictionand choice of law rules and the application ​of statutes ​in the online environment+This Chapter ​introduces ​you to the concept of jurisdiction in the internet context. It starts by explaining the differences between ​jurisdiction in the narrow sensewhich generally refers to the power and authority of a court to hear and decide on a matter, ​and in the broad sense, which encompasses the separate yet related issues of choice of law, choice of forum, and recognition ​and enforcement.((Brian Fitzgerald et al, _Internet and E-commerce Law, Business and Policy_ (Thomson Reuters (Professional) Australia Limited, 2011) 57 ff)) This Chapter explains the different types of jurisdiction, including personal, subject matter ​and in rem, as well as choice of law, choice ​of forum, and recognition and enforcement ​in turn. It concludes with a short case study.
  
 ## What Is Jurisdiction?​ ## What Is Jurisdiction?​
Line 9: Line 9:
 **Overview Videos by [Rita Matulionyte](https://​www.youtube.com/​watch?​v=AExlbXWFfBU)** and **[Megan Patten](https://​www.youtube.com/​watch?​v=yegdr8Q5MdY)** **Overview Videos by [Rita Matulionyte](https://​www.youtube.com/​watch?​v=AExlbXWFfBU)** and **[Megan Patten](https://​www.youtube.com/​watch?​v=yegdr8Q5MdY)**
  
-The application of rules of jurisdiction to the internet is a challenging issue facing many courts around the globe. ​Traditional ​understandings of jurisdiction have evolved in relation to the geographical boundaries of countries, ​which assert **[sovereignty](https://​www.youtube.com/​watch?​v=VMC9u7PZZCo)** ​over the persons and things within their territory. ​Jurisdiction ​does not usually extend beyond ​the geographical boundaries ​of a statewhich is free to govern its subjects according to its laws without external interferences from other nation states. However, now that people routinely use the internet and other emerging technologies to interact across jurisdictional boundaries, courts have been grappling with complex legal questions of which state may and should properly exercise jurisdiction over foreign ​parties to online activities.+The application of rules of jurisdiction to the internet is a challenging issue for courts around the globe. ​Western democratic ​understandings of jurisdiction have evolved in relation to the geographical boundaries of countries.((Brian Fitzgerald et al_Internet and E-commerce Law, Business and Policy_ (Thomson Reuters (Professional) Australia Limited, 2011) 57 ff)) Western democracies ​assert **[sovereign](https://​www.youtube.com/​watch?​v=VMC9u7PZZCo)** ​power, which is based on the will of their people, to govern ​persons and things within their territory ​free from external interferenceA nation state'​s jurisdiction ​does not usually extend beyond ​its geographical boundaries.((Cyber Law Centre'​Internet Jurisdiction - What Is Jurisdiction?'​ www.cyberlawcentre.org/​genl2032/​12Jurisdiction-v1.pptx)) ​However, now that people routinely use the internet and other emerging technologies to interact across jurisdictional boundaries, courts have been grappling with complex legal questions of which state may and should properly exercise jurisdiction over parties to online activities.
  
-In the strict sense, jurisdiction "​refers to the authority of a court to decide a matter",​((Brian Fitzgerald et al, _Internet and E-commerce Law, Business and Policy_ (Thomson Reuters (Professional) Australia Limited, 2011) 58)) which is determined solely by application of the principles of jurisdiction.((_John Pfeiffer Pty Ltd v Rogerson_ [2000] HCA 36 at [25])) A court can competently adjudicate on a matter if it has both subject matter and personal jurisdiction. If a court hears and decides on a matter, without proper jurisdiction,​ the judgment ​would not be enforceable ​and could be quashed. +_In the strict sense,jurisdiction "​refers to the authority of a court to decide a matter",​((Brian Fitzgerald et al, _Internet and E-commerce Law, Business and Policy_ (Thomson Reuters (Professional) Australia Limited, 2011) 58)) which is determined solely by application of the principles of jurisdiction.((_John Pfeiffer Pty Ltd v Rogerson_ [2000] HCA 36 at [25])) A court can competently adjudicate on a matter if it has both subject matter ​jurisdiction ​and personal jurisdiction. If a court hears and decides on a matter, without proper jurisdiction,​ the judgment ​is generally unenforceable ​and could be quashed.((Cyber Law Centre, '​Internet Jurisdiction - What Is Jurisdiction?'​ www.cyberlawcentre.org/​genl2032/​12Jurisdiction-v1.pptx)) _In the broad sense,jurisdiction also encompasses the related, but separate, issues of(1) choice of law, (2) choice of forum and (3) recognition and enforcement of foreign judgments.((Brian Fitzgerald et al, _Internet and E-commerce Law, Business and Policy_ (Thomson Reuters (Professional) Australia Limited, 2011) 58)) The broad conception of jurisdiction is often referred to as private international law. We will expand on the concept of jurisdiction ​as well as choice ​of law, choice of forum and recognition and enforcement ​below. ​
- +
-In the broad sense, jurisdiction also encompasses the related, but separate, issues of **(1) choice of law, (2) choice of forum and (3) recognition and enforcement of foreign judgments.** The broad conception of jurisdiction is often referred to as private international law. We will expand on the concept of jurisdiction ​and each of these issues ​below. ​+
  
 ##Personal (In Personam) Jurisdiction ##Personal (In Personam) Jurisdiction
  
-A court will only have personal jurisdiction over a foreign defendant if the defendant (1) is present in the jurisdiction,​ (2) has submitted to the jurisdiction or (3) other court rules apply, such as where:  ​+A court will only have personal jurisdiction over a foreign defendant if the defendant(1) is present in the jurisdiction,​ (2) has submitted to the jurisdiction or (3) other court rules apply, such as where:  ​
   * the defendant is domiciled or ordinary resident in the relevant jurisdiction;​   * the defendant is domiciled or ordinary resident in the relevant jurisdiction;​
   * disputed property is within relevant jurisdiction (in rem jurisdiction);​ or    * disputed property is within relevant jurisdiction (in rem jurisdiction);​ or 
Line 27: Line 25:
 **Overview by [Rita Matulionyte](https://​www.youtube.com/​watch?​v=nw-SgiIaLmc)** **Overview by [Rita Matulionyte](https://​www.youtube.com/​watch?​v=nw-SgiIaLmc)**
  
-Subject matter jurisdiction refers to the subject matter or types of actions that a court may hear and decide on. Courts are often limited with respect to the type of matter that they can hear as well as the amount in dispute. In Queensland, for instance, a money dispute of a value up to $150,000 can be resolved in the Magistrates Court,​((Queensland Courts, 'Money Disputes under $150,​000'​ https://​www.courts.qld.gov.au/​going-to-court/​money-disputes/​money-disputes-up-to-150000)). At the national level, the Federal Circuit Court of Australia has exclusive jurisdiction to hear and determine civil disputes concerning copyright, designs, trade marks and plant breeder'​s rights, among other areas of law.((Federal Circuit Court of Australia, '​Intellectual Property'​ http://​www.federalcircuitcourt.gov.au/​wps/​wcm/​connect/​fccweb/​gfl/​intellectual-property))  ​+Subject matter jurisdiction refers to the subject matter or types of actions that a court may hear and decide on. Courts are often limited with respect to the type of matter that they can hear as well as the amount in dispute. In Queensland, for instance, a money dispute of a value up to $150,000 can be resolved in the Magistrates Court,​((Queensland Courts, 'Money Disputes under $150,​000'​ https://​www.courts.qld.gov.au/​going-to-court/​money-disputes/​money-disputes-up-to-150000)). At the national level, the Federal Circuit Court of Australia has exclusive jurisdiction to hear and determine civil disputes concerning copyright, designs, trade marks and plant breeder'​s rights, among other subject matter.((Federal Circuit Court of Australia, '​Intellectual Property'​ http://​www.federalcircuitcourt.gov.au/​wps/​wcm/​connect/​fccweb/​gfl/​intellectual-property))  ​
  
 ###Contract Law  ###Contract Law 
Line 33: Line 31:
 **Video Overview by [Rita Matulionyte](https://​www.youtube.com/​watch?​v=_TId_bCu2Bo)** **Video Overview by [Rita Matulionyte](https://​www.youtube.com/​watch?​v=_TId_bCu2Bo)**
  
-Parties to a contract may select the legal system that will govern their rights, obligations and other matters under a contract (known as choice of law provision/s or jurisdiction clauses). If contract does not contain a choice of law provision, Australian courts may have jurisdiction over an international ​contract where the contract is (1) made within the jurisdiction,​ (2) governed by the law of the forum or (3) broken/​repudiated within the jurisdiction. ​+Parties to a contract may select the legal system that will govern their rights, obligations and other matters under a contract (known as choice of law provision/s or jurisdiction clauses). If an international ​contract does not specify the jurisdiction where potential disputes between parties will be resolved, Australian courts may have jurisdiction over that contract where the contract is(1) made within the jurisdiction,​ (2) governed by the law of the forum or (3) broken/​repudiated within the jurisdiction. ​
  
-Where an e-contract is made: Electronic ​Transactions Act 1999 (States and Territory equivalents):+Does the law differ for e-contracts? _Electronic ​Transactions Act 1999_ (Cth) (States and Territory equivalents)
  
-* E-message (normally, acceptance) is taken to have been received by the recipient in their place of business/​ordinary residence +* E-message (normally, acceptance) is taken to have been received by the recipient in their place of business/​ordinary residence. 
-* Parties may agree on the place where e-contract was made; however, this does not preclude the courts from determining where a contract was actually made+* Parties may agree on the place where e-contract was made; however, this does not preclude the courts from determining where a contract was actually made.
  
-Where an e-contract ​was broken by repudiation? ​+What if an e-contract ​is broken by repudiation? ​
  
 * Place where the message of repudiation originated * Place where the message of repudiation originated
 * Presumption:​ originator’s place of business/​ordinary place of residence * Presumption:​ originator’s place of business/​ordinary place of residence
  
-###Torts+###​Torts ​Law
  
-**Overview by [Rita Matulionyte](https://​www.youtube.com/​watch?​v=JtxJ6G-n3ss)** and **[Jennifer Davy on the Lex Loci Delicti Rule](https://​www.youtube.com/​watch?​v=QbyFsmI8oAc)**+**Video Overview ​ by [Rita Matulionyte](https://​www.youtube.com/​watch?​v=JtxJ6G-n3ss)** and **[Jennifer Davy on the Lex Loci Delicti Rule](https://​www.youtube.com/​watch?​v=QbyFsmI8oAc)**
  
-The general rule is that courts have jurisdiction over the dispute if the tort occurred inside the territory of the court: _lex loci delicti_. See Choice of Law section below. ​+The general ​_lex loci delicti_ ​rule is that courts have jurisdiction over the dispute if the tort occurred inside the territory of the court. See the Choice of Law section below. ​
  
-**Gutnick ​v Dow Jones Inc (2002) CLR 575** and **Video Overview by [Jack Longley](https://​www.youtube.com/​watch?​v=BeTF-K4S_Ig)**+**_Gutnick ​v Dow Jones Inc_ (2002) CLR 575** (**Video Overview by [Jack Longley](https://​www.youtube.com/​watch?​v=BeTF-K4S_Ig)**)
  
 * Facts: Dow Jones & Co, Delaware Corp., published some allegedly defamatory material about Joseph Gutnick in Barrons Magazine online, per subscription. 305,563 copies sold (14 in Victoria), 550,000 online subscribers (300 in Victoria). Gutnick sued Dow Jones in the Victorian court. ​ * Facts: Dow Jones & Co, Delaware Corp., published some allegedly defamatory material about Joseph Gutnick in Barrons Magazine online, per subscription. 305,563 copies sold (14 in Victoria), 550,000 online subscribers (300 in Victoria). Gutnick sued Dow Jones in the Victorian court. ​
Line 62: Line 60:
 * No “single publication rule”, as applied by US courts * No “single publication rule”, as applied by US courts
  
-**Kelly Levick ​[2016] QMC 11**+**_Kelly ​Levick_ ​[2016] QMC 11**
  
 * Facts: The Defendant posted a defamatory post about the Plaintiff on his Facebook page. It was found that the post was '​downloaded'​ in Victoria, Australia and South Africa by two (2) individuals. The Plaintiff commenced proceedings in Queensland.  ​ * Facts: The Defendant posted a defamatory post about the Plaintiff on his Facebook page. It was found that the post was '​downloaded'​ in Victoria, Australia and South Africa by two (2) individuals. The Plaintiff commenced proceedings in Queensland.  ​
Line 72: Line 70:
 * It is statue which determines jurisdiction and not the principle of Dow Jones (although it important to determine where the publication was made). ​ * It is statue which determines jurisdiction and not the principle of Dow Jones (although it important to determine where the publication was made). ​
  
-###​Intellectual Property+###​Intellectual Property ​Law 
  
-IP rights are territorial. Australian courts have jurisdiction only over IP rights granted in Australia and infringed in Australia+IP rights are territorial. Australian courts have jurisdiction only over IP rights granted in Australia and infringed in Australia.
  
-**Ward Group Pty Ltd v Brodie & Stone plc. (2005) 143 FCR 479**+**_Ward Group Pty Ltd v Brodie & Stone plc.(2005) 143 FCR 479**
  
 * Facts: Defendant located in UK uses an AU trademark in respect of its goods and services without authorisation of AU right holder ​ * Facts: Defendant located in UK uses an AU trademark in respect of its goods and services without authorisation of AU right holder ​
 * Held: The use takes place outside Australia; unless defendant intends to do business with Australian consumers, access is not sufficient. * Held: The use takes place outside Australia; unless defendant intends to do business with Australian consumers, access is not sufficient.
  
-**Lucasfilm ​Ltd v Ainsworth ​[2012] 1 AC 208**+**_Lucasfilm ​Ltd v Ainsworth_ ​[2012] 1 AC 208**
  
 * Facts: Ainsworth, a UK resident, was selling Stormtrooper outfits online. Lucasfilm, US company, sued Ainsworth before the UK courts both for the UK and US copyright infringement * Facts: Ainsworth, a UK resident, was selling Stormtrooper outfits online. Lucasfilm, US company, sued Ainsworth before the UK courts both for the UK and US copyright infringement
Line 87: Line 85:
 * Held: Mosambique rule denied, jurisdiction confirmed * Held: Mosambique rule denied, jurisdiction confirmed
  
-### Consumer Protection+### Consumer Protection ​Law
  
-**Australian ​Competition and Consumer Commissioner v Chen (2003) 132 FCR 309**+**_Australian ​Competition and Consumer Commissioner v Chen_ (2003) 132 FCR 309**
  
 * Facts: Chen, who resided in the US, ran a fake website for the Sydney Opera House, through which he sold unauthorised tickets. The ACCC sued him claiming violations of the Australian Consumer Law. * Facts: Chen, who resided in the US, ran a fake website for the Sydney Opera House, through which he sold unauthorised tickets. The ACCC sued him claiming violations of the Australian Consumer Law.
Line 97: Line 95:
 ##In Rem Jurisdiction ##In Rem Jurisdiction
  
-In rem jurisdiction,​ which roughly translates to 'about a thing',​ enables a court to exercise power over property, either real or personal, or a status against a person even when the personal jurisdiction is absent. An action in rem assumes that the property is the primary object of the action rather then personal liabilities not necessarily associated with the property, and is conclusive against the world. Courts often apply in rem jurisdiction in cases, inter alia, concerning real estate, potentially illegal goods on cargo ships and domain names. ​+In rem jurisdiction,​ which roughly translates to jurisdiction ​'​about ​or over a thing',​ enables a court to exercise power over property, either real or personal, or a status against a person even when the personal jurisdiction is absent. An action in rem assumes that the property is the primary object of the action rather then personal liabilities not necessarily associated with the property, and is conclusive against the world. Courts often apply in rem jurisdiction in cases, inter alia, concerning real estate, potentially illegal goods on cargo ships and domain names. ​
  
 ###In Rem Jurisdiction and Domain Names ###In Rem Jurisdiction and Domain Names
  
-The United States (US) Anti-Cybersquating Protection ​Act establishes that the US has in rem jurisdiction over domain names.((Catherine T. Struve and R. Polk Wagner, '​Realspace ​Soverigns ​in Cyberspace: Problems with the Anticybersquatting Consumer Protection Act' https://​heinonline.org/​HOL/​Page?​collection=journals&​handle=hein.journals/​berktech17&​id=1019&​men_tab=srchresults)) ​+The United States (US) _Anti-Cybersquating Protection ​Act_ establishes that the US has in rem jurisdiction over domain names.((Catherine T. Struve and R. Polk Wagner, '​Realspace ​Sovereigns ​in Cyberspace: Problems with the Anticybersquatting Consumer Protection Act' https://​heinonline.org/​HOL/​Page?​collection=journals&​handle=hein.journals/​berktech17&​id=1019&​men_tab=srchresults)) ​
  
-**Cable News network LP v Cnnnews.com 56 Fed. Appx. 559 (4th Cir 2003)**+**_Cable ​News network LP v Cnnnews.com 56 Fed. Appx.559 (4th Cir 2003)**
  
 * F: Chinese company owned a domain name cnnnews.com registered in the US * F: Chinese company owned a domain name cnnnews.com registered in the US
Line 110: Line 108:
 ## Choice of Law  ## Choice of Law 
  
-Once a court has determined whether it has personal and subject matter jurisdiction,​ it must decide whether the laws of that state or another should be applied to proceedings. The rules that courts use to determine which laws should apply are known as 'choice of law rules'. Different choice of law rules apply to different bodies of law. +Once a court has determined whether it has personal and subject matter jurisdiction,​ it must decide whether the laws of that state or another ​country ​should be applied to proceedings. The rules that courts use to determine which laws should apply are known as choice of law rules.((Brian Fitzgerald et al, _Internet and E-commerce Law, Business and Policy_ (Thomson Reuters (Professional) Australia Limited, 2011) 90 ff)) The primary legal question for the choice of law issue is: _which law governs the dispute?​_ ​Different choice of law rules apply to different bodies of law.  
 + 
 +### Contract Law 
 + 
 +As explained above, parties to a contract may select the legal system that will govern their rights, obligations and other matters under a contract (known as choice of law provision/s or jurisdiction clauses). If a contract does not contain a choice of law provision, the court will consider: (1) whether parties have evinced a common intention as to the law that should govern their contract/​potential disputes; and (2) the law with which the contract has the closest connection, which can be evinced by form and legal language, place of contract, place where the contract is to be performed, place of residence of the parties and so forth. 
 + 
 +### Torts Law  
 + 
 +**Video Overview by [Georgia Ardouin](https://​www.youtube.com/​watch?​v=wmmPNNfBs4U)**  
 + 
 +As explained above, the _lex loci delicti rule_ applies to torts law. Double actionability rule: the events are actionable both under the law of the forum and under the law of the place where the events took place. Australian courts are generally very reluctant to apply foreign law. See forum non-convenience doctrine below. 
 + 
 +**_Dow Jones & Company Inc v Gutnick_** 
 + 
 +* Held: Place of wrong in defamation proceedings in respect of online content is the place where damage to reputation is suffered (i.e. where the plaintiff had reputation and where the content was downloaded). Compare this with Ward Group Pty Ltd v Brodie & Stone plc. (2005) 143 FCR 479 (access online is not sufficient, targeting needed)
  
 ## Choice of Forum  ## Choice of Forum 
 +
 +Even if a court has personal and subject matter jurisdiction in proceedings,​ and the laws of that forum will apply to proceedings (based on choice of law rules), a court may still decline to exercise jurisdiction on the basis that the court is not the "​appropriate forum"​((Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538)) to exercise jurisdiction.((Brian Fitzgerald et al, _Internet and E-commerce Law, Business and Policy_ (Thomson Reuters (Professional) Australia Limited, 2011) 126 ff)) The principle that a court may decline to exercise jurisdiction is know as 'forum non conveniens'​. ​
  
 ### Declining Jurisdiction - 'Forum Non Conveniens'​ ### Declining Jurisdiction - 'Forum Non Conveniens'​
Line 118: Line 132:
 **Video Overview by [Rita Matulionyte](https://​www.youtube.com/​watch?​v=7CGvluwxsKY)** and **[Cameron Martin](https://​www.youtube.com/​watch?​v=8KrtqFaQbn4)** **Video Overview by [Rita Matulionyte](https://​www.youtube.com/​watch?​v=7CGvluwxsKY)** and **[Cameron Martin](https://​www.youtube.com/​watch?​v=8KrtqFaQbn4)**
  
-Courts can deny jurisdiction ​in case of “clearly inappropriate forum”. See Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538+Courts can deny jurisdiction ​based on the “clearly inappropriate forum” ​or "​Voth"​((Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538)) test. The High Court in Voth rejected the "more appropriate forum" in favour of the "​clearly inappropriate forum" primarily to minimise the extent that courts have to make value judgments about courts and conceptions of justice in foreign jurisdictions.((Brian Fitzgerald et al, _Internet and E-commerce Law, Business and Policy_ (Thomson Reuters (Professional) Australia Limited, 2011) 127 ff))  ​
  
-Facts to be taken into account:+Facts that a court can take into consideration when apply the Voth test follow:((Spillasa Maritime Corp v Cansulex Ltd))
  
-* Connection between the chosen forum and the subject matter or parties +* Connection between the chosen forum and the subject matter or parties; 
-* Forum provides a legitimate and substantial juridical advantage to the plaintiff +* Forum provides a legitimate and substantial juridical advantage to the plaintiff; 
-* Alternative forum would grant plaintiff an adequate relief +* Alternative forum would grant plaintiff an adequate relief; and 
-* Law of the chosen forum is the applicable substantive law+* Law of the chosen forum is the applicable substantive law
  
 **_Dow Jones v Gutnick_ (2002) CLR 575** **_Dow Jones v Gutnick_ (2002) CLR 575**
Line 139: Line 153:
   * Issue: whether the court had jurisdiction to grant an injunction to prevent conduct occuring outside Australia.   * Issue: whether the court had jurisdiction to grant an injunction to prevent conduct occuring outside Australia.
   * Held: Generally yes, but the court declined an injunction because of: the uncertainty of enforceability of such an order; the international nature of the internet and potential international effect of NSW law if the injunction was granted; and established case authority which demonstrated great caution in granting interlocutory relief.   * Held: Generally yes, but the court declined an injunction because of: the uncertainty of enforceability of such an order; the international nature of the internet and potential international effect of NSW law if the injunction was granted; and established case authority which demonstrated great caution in granting interlocutory relief.
- 
  
 ## Service ​ ## Service ​
Line 151: Line 164:
   * that the proposed method of substituted service (ie via social media) will be likely to bring knowledge of the proceedings to the defendant.   * that the proposed method of substituted service (ie via social media) will be likely to bring knowledge of the proceedings to the defendant.
  
-In sum, a court must determine whether that the defendant is the personality behind the social media account. ​+In summary, a court must determine whether that the defendant is the personality behind the social media account. ​
  
 ## Case Study: The Issues of Jurisdiction,​ Choice of Law, Choice of Forum and Recognition and Enforcement ​ ## Case Study: The Issues of Jurisdiction,​ Choice of Law, Choice of Forum and Recognition and Enforcement ​
  • cyberlaw/jurisdiction.1548055574.txt.gz
  • Last modified: 14 months ago
  • by witta