French legislation has for several years now prohibited facilitating access to Nazi propaganda over the Internet. This is why in the 90s the popular U.S. search engine Yahoo set up filters in its Yahoo.fr site (geared towards the French public) so that search results would not lead to pages with content related to this movement.  

But in the year 2000 a French judge decided to go beyond and issue an order compelling the company to establish filters not only in Yahoo.fr but in the rest of the Yahoo.com sites as well, insofar these were readily accessible by French citizens. The decision sparked great controversy in the tech world and generated concern that cross-border judges would force companies to appear before them and adjust their behavior to these countries’ rules. 

The issue of spatial jurisdiction of the courts (i.e., the territory where judges have authority) concerning internet matters is being strongly disputed today and is of great concern to many businessmen and women. According to Professor Michael Geist, from the University of Ottawa, “Internet’s particular challenge is that complying with local rules is rarely sufficient to assure a company low legal risks. Given the possibility of accessing a website from any part in the world, the possibility of a website owner being summoned by a court in a faraway jurisdiction is more than just an academic exercise. In a context where Internet provides instant global access, this possibility is very real. ”

Currently, there are three approaches adopted by courts on Internet jurisdiction matters

Geist offers a very useful example to understand the magnitude of the matter. “Let’s suppose that a consumer in Ottawa downloads an e-book from Amazon.com, a leader e-commerce company located in Seattle, United States. If the buyer is not happy with the transaction – for example, if the downloaded book makes his computer crash or lose important information- and the parties cannot reach a negotiated agreement, the consumer might want to sue Amazon for the price of the book and the resulting damages at a local Ontario court. Amazon will most likely reply to the complaint using jurisdictional grounds, affirming that the sales agreement between the parties stipulated that any dispute should be litigated in a court in the State of Washington, United States.”

In this case, Geist asks: “Should the Ontario courts dismiss the case due to the existence of this clause in the agreement? Is it possible for this clause to eliminate the consumer’s chance of having access to Canadian consumer protection laws? Scholars have drawn up proposals to provide a uniform answer to these questions, but the truth is that courts from different parts of the world (including from a same country) offer different answers to these questions, causing legal uncertainty regarding the Internet.

Three approaches

In an article in the European Journal of International Law, Thomas Schultz, professor at the University of Geneva, explains that there are three approaches on Internet jurisdiction matters adopted by the different courts. The one to be used will depend on the judge hearing the cause and the specific facts involved.  

A first position has been to prioritize the “subjective territorial principle”, such as determined by a New York court in the case Louis Feraud v. Viewfinder. On that occasion, the French fashion company Louis Feraud successfully got a French judge to rule that the pictures of a fashion show posted on the website of a North American company, Viewfinder, infringed the company’s intellectual property rights. Louis Feraud then appeared before U.S. courts seeking enforcement of, and Viewfinder’s compliance with, the French court ruling. However, the U.S. court understood that since the pictures had been published in U.S. territory they were protected by the Free Speech Clause of the United States Constitution and therefore did not have to be taken down. To decide this matter, the New York court considered where the content had originated and not where it could be seen as the relevant criterion. 

A second criterion used by the courts is that of the “effects”. Yahoo is the paradigmatic case in this regard: it does not matter where the website servers are located or where the content is produced; if it affects citizens of a country, the courts of this country have the authority to decide the case.  

The third criterion that Schultz mentions is “purpose”, used, for example, in the case Gutnick v. Dow Jones. “Joseph Gutnick, a well-known Australian politician-rabbi-philanthropist-businessman” narrates Schultz, “brought a suit against the U.S. publisher Dow Jones for defamation in an article that appeared in the North American magazine, BarronsOnline. This online magazine, although mainly geared towards the U.S. public, had sold a good number of subscriptions to readers located in Australia. The Supreme Court of Australia concluded that these subscriptions constituted a sufficient link between the defendant and the country. The editor of the magazine wished to have readers in Australia and was conscious that its publications were being read and would have an impact in this country. If Dow Jones had not accepted to sell subscriptions to BarronsOnline in Australia, the courts could have decided that they did not have jurisdiction over the dispute.”