Jurisdiction:

Jurisdiction:Jurisdiction refers to the power of a state to govern:

The law of personal jurisdiction Jurisdiction over a person A government’s general power to exercise authority over all persons and

things within its territory. A court’s power to decide a case or issue a decree. A geographic area within which political or judicial authority may be exercised.

Principles of Jurisdiction: The coming together of principles governing different jurisdictions

The Hague Convention on Jurisdiction

o There is no consensus on jurisdiction

o There is NO single geographic jurisdiction of the Internet.

o The US First Amendment being a fundamental principle of

Internet Law

Transnational Space:o The legal system has always had difficulty coming to terms with

transnational space.

o With Internet Law – most falls into the area of transnational Law.

o Jurisdiction – a lot of conflicting decisions between legal makers and

policy.

Journal Article:

There is NO single geographic jurisdiction of the Internet.

o Jurisdiction in Cyber space – [Cyber Text p. 122]

A Lex Internet : Important – read Kirby J’s Judgment in article by Johnson & Post –

“ The Internet should be a separate Jurisdiction” This cannot happen in effect.

Basic Premise Of A Lex Internet:

o There should be a new jurisdiction for cyber space

o Treating Cyberspace as a separate jurisdiction would assist in the

development of intellectual property and other laws applicable to

the medium of the Internet.1

What are the traditional rules relating to jurisdiction in Australia? Cyber Text p.135.]

o In Australia, a Crt. will only have jurisdiction over a def. If the def. is validly served with process or voluntarily submits to the jurisdiction.

o The rules of the relevant Crt. prescribe the circumstances in which a def. Outside the Jurisdiction may be served.

o Under the rules for a particular Crt, in most states a sufficient nexus is required with the Australian jurisdiction for a person outside of the jurisdiction to be validly served with process.

Indicia For A Sufficient Nexus: [Cyber Text p. 135]

o The existence of a contract connected with the jurisdiction

o A breach of contract within the jurisdiction

o Commission of a tort within the jurisdiction

o Submission to the jurisdiction

o If the contract was governed by the jurisdiction

o Damages occurring within the jurisdiction

o Does def. own land in the jurisdiction?

Factors To consider when determining the relevant jurisdiction:

- In some cases the leave of the crt must be obtained.

- The crts often have discretion to decline jurisdiction where the forum is

selected and is clearly inappropriate.

- The Crt is to consider the following factors To be relevant whether

determining if the forum is appropriate:

Whether there is any significant connection between the crt and the

subject matter; or,

The parties such as;

o The parties domiciles

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o Places of business or;

o the place where the conduct or transaction occurred or;

o where the subject matter is situated

Whether there is any legitimate judicial: advantage to the plaintiff;

o such as greater recovery

A more favorable limitation period

Better ancillary procedures or;

Assets within the jurisdiction against which judgment can be enforced.

And;

Whether the law of the forum will supply the substantive law to be

applied in resolution of the dispute

In Relation to Foreign Websites Accessible within Australia –

- Under s 67 of the TPA 1974 (Cth) the Consumer Protection Provisions in

Part 5 Division 2 may not be excluded by providing for a foreign law as the

governing law of a contract.

- The TPA applies to Corporations engaged in Trade or commerce within

Australia, which includes by definition : Foreign Corporations.

- In that case the consumer protection provisions of the TPA will apply to a

foreign Corporation operating a website which can be said to be “engaging in

conduct within Australia under the TPA.

Internet transactions between 2 Internet Parties Within Australia

For Cross-Jurisdictional matters within Australia s 15 of the Service & Execution

of Process Act 1992 (Cth) provides that any initiating process issued in a State

may be served in another State provided service is effected in the same way as

service of the initiating process in the place of issue.

3

Internet Transactions: Same applies for Internet transactions between 2 parties located within

Australia – a consideration of the complex crt rules in relation to a

sufficient nexus with the pl’s jurisdiction is not required in order to

establish valid service and therefore jurisdiction over the defendant.

Under s 105 of the SEPA where judgment in one crt is registered in the

appropriate crt in another State the judgment will have the same force and

effect and will be capable of enforcement as if the judgment had been

given by the crt in which it is registered.

Case Example:

ASIC v MatthewsFacts:- The NSW Supreme Crt was not prepared to impose the law of Australia

throughout the world in relation to an action brought against a foreign def. –

The Federal Crt did not hesitate to grant an injunction restraining Mr.

Matthews from publishing reports about securities on the Internet in

contravention of the Corporations Law.

- The effect of the injunction was to require that the internet site be closed

down which effectively restricted publication throughout the world.

Enforcement of Australian Judgments In Other Jurisdictions:

- If an individual or an entity in Australia obtains judgment from an Australian

crt against an entity, which does not have any assets within the jurisdiction of

an Australian crt. The holder of the judgment may need to look at enforcing

the judgment in another jurisdiction.

- Money judgments are governed by the Foreign Judgements Act1991 (Cth)

- Orders such as:o Injunctions or;

4

o Declarations

- May be difficult to enforce internationally if not covered by an agreement,

treaty or convention.

Foreign Judgements Act 1991 (Cth):- Provides for a reciprocal arrangement between countries that give

recognition to Australian Judgements.

- The Act recognizes the enforcement of certain foreign judgments in Australia

if those countries have similar recogniti9on principles in place for Australian

judgments.

Is the Country listed in the Schedule to the Regulations of the Foreign Judgements Act 1991 (Cth)?

Example:

United Kingdom

Germany

[Refer Cyber Text p. 136]

5

Jurisdiction:Jurisdiction Answer Plan – In Relation to a Defamation Action

Example Problem Question:Defamation:Business person maintains homes, offices & substantial assets along with Extensive business interests & Public reputations in: France Australia United StatesWeb site – Streuth!.com – hosted in AustraliaHas online subscribers in all 3 countriesDef. Writes a defamatory article pointing connections between his businesses in all countries & money laundering and tax evasion schemes that are run through online banking accounts in Vanuatu.

Can any actions be brought against any of the 3 countries for relief against this organization?

Parties To the Action:

In order to ascertain whether any actions for relief can be brought against each of the parties, it is first necessary to determine the legal jurisdiction over disputes concerning electronic activities & commerce over the Internet.

The Key Question:

Who can be sued for events & activities in cyber space?Where can they be sued?

Step 2: Do Issues of Jurisdiction Apply?

In order to ascertain the jurisdictional approach to be taken - What geographic locations are involved in the action?- Identify & Establish appropriate approaches in response to the question.

Example:- Australian Approach [p.]- US Approach [p.]- European Approach [p.]

6

Step: Define Jurisdiction:

Jurisdiction refers to the power of a state to govern: The law of personal jurisdiction Jurisdiction over a person A government’s general power to exercise authority over all persons and

things within its territory. A court’s power to decide a case or issue a decree. A geographic area within which political or judicial authority may be exercised.

In Considering What is Jurisdiction:

The Hague Convention on Jurisdiction

There is NO single geographic jurisdiction of the Internet.

Principles of Internet Jurisdiction: The coming together of principles governing different jurisdictions

1. Must start with International Law;

2. Then consider Domestic Law

Jurisdiction According to International Law:

Jurisdiction is exercised: [Cyber Text p. 133]

- On a Territorial basis or;

- In Personam - Over persons or things outside their own country.

Jurisdiction According to Domestic Law [Cyber Text p. 133]

Jurisdiction is used in a generic sense to cover distinct legal concepts, which

arise in a conflict of laws:

- Governing law

- Jurisdiction

- Forum Conveniens; and;

- Enforcement of judgments

Lipohar v The Queen defined jurisdiction as a generic term that is used in a

variety of senses.

7

Gutnick Case, there were found to be 2 distinct senses:

1. The amenability of the defendant to subject to an authority in deciding

the controversy, and;

2. A particular territorial area or law district.

Step : What is the Cause of Action?

o Defamation

Dow Jones & Co v Gutnick (Aus Young v New Haven Advocate (US) Macquarie Bank v Berg (Aus) Calder v Jones (US) Griffis v Luban (US) Yahoo (France)

o Trade Secret Missapropriation; Matt Pavlovich v DVD Copy Control Assn. (US)

o Trademark infringement Benusan Resturant v King (US) Zippo Case (US) Morantz Case (US)

o Domain Names ACCC v Purple Harmony Plates (AUS)

o Breach of Contract Ebay Cases (US) CompuServe Inc. v Patterson (US)

o Consumer Protection [s 67 of the TPA 1974 (Cth)] ASIC v Matthews (AUS)

o Criminal conduct [Cyber Text p. 136] DPP v Sutcliffe (AUS)

o Copyright Infringement Kazaar case (US)

8

Step: Cause of Action Defamation

In a defamation action To defame – is to damage a parties reputation within the community by speech, conduct, written word or representation.Steps to a Defamation Action:

1. A defamatory Imputation2. That it referred to the Plaintiff, and;3. That it was published to a third party.

Step: Establishing a Defamation Action in Australia

The tort of defamation in Australia - focuses upon publications causing damage

to reputation.

It is a tort of strict liability – the defendant may be liable even though no injury to

reputation was intended to the defendant, & The defendant acted with

reasonable care.

Australian Common Law

Choice of Law Rules:Choice of Law rules do not require locating the place of publication of defamatory

material as being necessarily, and only the place of the publishers conduct

Gutnick – The Publishers Conduct –

Dow Jones uploading allegedly defamatory material onto its

servers in NJ.

Place of the Damage:Defamation is to be located at the place where the damage to reputation occurs.

Usually this is where the defamatory material is available in a comprehensible

form

- The assumption is that the person defamed has in that place a reputation,

which has suffered damaged.

Note: Usually – the place of down load is the place where the tort of defamation

is committed.

9

Step: Define Publishing:

“Publishing” Must consider:

1. Where something is published to distinguish between the

publishers act of publication, and;

2. The fact of publication (To a third party.)

Element of Defamation action is that the defamatory material must be published

to a third party.

Step: Internet “Publishing”: Differentiate Uploading & Downloading

In the case of the www – material is not available in comprehensible form until

downloaded on the computer of a person who has used a web browser to pull

material from the web server.

- It is where that person downloads the material that the damage to reputation

may be done.

Uploading:o The originator of a document wishing to make it available on the www.

Arranges for it to be placed in a storage area managed by a web server.

o Eg. Gutnick - The def. Dow Jones

Downloading:o A person wishing to have access to that document must issue a request to

the relevant server nominating the location of the web page via its URL –

uniform resource locator.

When the server delivers the document in response to request – called

downloading

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Exception : Was the Allegedly Defamatory Publication made in the ordinary course of business?

Example: A Bookseller or newsvendor – who did not know or suspect & used

reasonable diligence would not have known or suspected the

publication was defamatory will be held not to amount to a

publication of libel. 11

Step: Defamation Action Has Someone in Australia been harmed?

o Harm to reputation is done when a defamatory publication is

comprehended by the reader, listener or observer.

o Until that point no harm is done.

o It is a bilateral act – where

o The publisher makes available &

o A third party has it available for their comprehension.

Common Law Rule: Every separate communication of defamatory matter –

founds a separate cause of action.

Problem Australian Position: You have to harm someone in Australia.

Step: Is the Harm Suffered – Major Harm?

“Is it major harm? “Any harm done in Australia - no matter how small – has

grounds for defamation action.

The Australian Authority:Gutnick – Only has to do some harm.

This approach differs from the US:

In Gutnick – 16 people only – read the article in Australia

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they would not have made sense of article in Australia - as the

details were based in the US.

Step: Does the person defamed (Suffered harm) have a reputation at the place of “publishing” ?

- The assumption is that the person defamed has in that place a reputation,

which has suffered damaged.

Step: It must be determined which jurisdiction applies in a defamation action:

A Determination of the appropriate forum - Whether the case should be heard by an Australian crt. or US.

Gutnick: The Place of publishing – Was a key factor in determining whether proceedings in the Supreme Crt. of Victoria were an appropriate forum for determination of the action.He alleged the damage was cause to his reputation in Victoria as a consequence

of the publication that occurred in that State.

The principal issue: debated in the Appeal of Gutnick was where the defamatory material of which the def, complained published?

Qn - Was the online article published in Victoria? o Where article downloaded

& the article could be read

Qn - Was the online article published in NJ?– Where the server was located

o & the article was uploaded?

In a defamation action, the harm is where the reader is.“Activities that have effects beyond the jurisdiction in which they are done may properly be the concern of the legal system in each place.”

Gutnick – The HCA looked at newspaper, radio and TV Cases: The place of publisher’s conduct (uploading article onto server) is not the place

of publication.

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Step: Are There Actions For Publications in Several Jurisdictions?

Because the act of publication is an act or event where there are at least 2 different parties

1. The publisher and;2. A person to whom the material is published.3. Publication to numerous persons may have as many territorial

connections as there is to whom particular words are published.

Issue: If the Place in which the Publisher acts and the Place in

which the publication is presented in a comprehensible form are 2

different jurisdictions – Where is the Tort of Defamation committed?

Answer: According to Australian Defamation Law – The place where the

defamatory internet article is downloaded & disseminated (read

with comprehension) & the person defamed has a reputation in that

jurisdiction – Is the place the Tort of Defamation occurred.

It is only if one starts from a premise that the publication of particular words is a singular event which is to be located by reference only to the conduct of the publisher that it would be right to attach no significance to the territorial connections provided by several places in which the publication is available for comprehension.

Example in US

In the United States – have the ‘single publication rule’ For DefamationThis rule has been rejected in Australia by the Crt of Appeal of NSW in Case of McLean v David Syme & Co Ltd.

13

Conclusion: Jurisdiction

There is authority that a crt. is empowered to restrain conduct occurring or

expected to occur outside the territorial boundaries of the jurisdiction..

Whether the power should be exercised is a qn. of discretion.

Factors relevant to the exercise of the discretion include the potential

enforceability of any orders made and whether another crt. is a more appropriate

forum.

Helicopter Utilities v Australian National Airlines Commission at 51.

Held: to be no Jurisdiction – A common sense situation.

The Crt is to consider the following factors To be relevant whether determining if

the forum is appropriate:

Whether there is any significant connection between the crt and the

subject matter; or,

The parties such as;

o The parties domiciles

o Places of business or;

o the place where the conduct or transaction occurred or;

o where the subject matter is situated

Whether there is any legitimate judicial: advantage to the plaintiff;

o such as greater recovery

o Can judgment be enforced in place where Def. has assets?

Gutnick

A more favorable limitation period

Better ancillary procedures or;

Assets within the jurisdiction against which judgment can be enforced.

And;

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Whether the law of the forum will supply the substantive law to be

applied in resolution of the dispute

Tort:In Tort where the parties or events have some connection with a jurisdiction outside Australia:

– The choice of law to be applied is that matters of substance are:– governed by the law of the place of commission of the tort.

Disadvantage Of only suing in Victoria: Damages are limited to Victoria.Tactical advantage:

o If sues in US - may loseo if sues in Victoria - may win

Note – there would be advantages to the pl. in having case heard in Australia as it is more difficult to establish defamation under US law.

Factor: Assets: What assets does the defendant Have – in order to sue They must have assets to pursue – otherwise there is no point

o A more appropriate forum – Is where the most damage sustained – A critical Approach.

Remedies:Only should get substantial damages if Plaintiff has reputation in place of publication

Practical Advice:

Unifying ThemeQn - How can we unify these cases?

Look at the kind of name that has been conducted & The type of people involved in the criminal case.

2 Limbs:1. Just because the website is accessible everywhere;

i. does not mean that this court should not have jurisdiction;1. Otherwise websites that are accessible here may not

be subject to this Crts jurisdiction.

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2. Just because the website is accessible;i. does not mean that this crt has jurisdiction.

1. Otherwise this crt would have jurisdiction over all websites, regardless of where they are located.

Ist Limb Applies:Just because an Internet site can be viewed from a location – does not mean that crt has jurisdiction

Example: A client wants to set up a web site in Qld Ask the Practical Qn –

o What is the person doing? eg. Gambling/ porn/ Alcohol etc.

Statements in Gutnick:

More difficult if claim was for damage to reputation in more than one jurisdiction.The reasonableness of publisher’s conduct – should it be considered at the publisher’s location?Can judgment be enforced in place where D has assets? Is Afghanistan to Zimbabwe a real issue: Will not be hard to identify likely jurisdictions where you may be sued – just look at where the Defendant lives.

Effects of Gutnick:

Anyone who places information on a website must take into account the laws of all the places where the website is accessible

There is no single legal system that applies to websites Foreign publishers must take into account Australian laws if their websites

are accessible in Australia Australia may become the centre-point for all defamation actions involving

the Internet, provided that the person defamed is known in Australia.

Step 3: What is the law relating to Internet Jurisdiction in Australia? [P. 135 & 166].

Undisputed Principals: Gutnick

It is now established that an Australian Crt will decline on the ground of forum

conveniens to exercise jurisdiction, which has been regularly invoked by the pl.16

a. Whether by personal service or;

b. Under the relevant Long-Arm jurisdiction provisions

i. Only when it is shown that the forum whose jurisdiction is

invoked by the plaintiff is clearly inappropriate.

In Tort where the parties or events have some connection with a jurisdiction

outside Australia – the choice of law to be applied is that matters of substance

are governed by the law of the place of commission of the tort.

In Gutnick the argument focused on where was the place of publication of the defamatory statements?

Dow Jones – argued – statements were published in New Jersey - & that it was the law of that jurisdiction which would govern all questions of substance.

In Gutnick – this had 2 consequences:1. The claims made were not of a kind mentioned in the relevant Paras of r

7.01(1) of the Victorian Rules, and;2. Because the law governing questions of substance was not Victorian law

– Victoria was clearly an inappropriate forum for the trial proceeding.

Important:The Gutnick case has left the door wide open as to what will happen in Australia.

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Case List: Australian Cases

Defamation: 1. Dow Jones v Gutnick p.182. ACCC v Purple Harmony Plates Pty Ltd. [2001] p. 203. Macquarie Bank v Berg [p.166] p. 21

Criminal Action:4. DPP v Sutcliffe [2001] p. 22

Jurisdiction in Relation to Defamatory Statements:

1: Dow Jones v. Gutnick (Australia)

Issues of jurisdiction have been raised in the defamation action commenced by Joseph Gutnick – against US based business information organization Dow Jones & Co.

Dow Jones published defamatory article and made article available to Internet subscribers.

Prelim proceeding brought before Vict. Supreme Crt 2001 - to determine whether the case should be heard by an Australian crt or US..

Facts: DJ publishes Barron’s Magazine in the US. DJ operates the wsj.com website, that includes the text of the current

edition of Barron’s Magazine Article titled “Unholy Gains” that referred to Joe Gutnick. The article warns

U.S. business about Joe. Joe claims that the article is defamatory and sued DJ in Victoria. Joe lives in Victoria, but operates businesses elsewhere, including the

U.S.

Gutnick sought to confine his claim in the Supreme CRT of Victoria He alleged the damage was cause to his reputation in Victoria as a

consequence of the publication that occurred in that State.

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The place of commission of the tort for which Gutnick sued is then located

in Victoria.

That is where the damage to his reputation occurred – Gutnick claimed

that is where the publications were comprehensible by readers.

It was his reputation in that State which Gutnick sought to vindicate. Joe was worried only about his reputation in Victoria

At the trial, Joe said that he would only sue in Victoria, and;

that he wanted only to have his Victorian reputation vindicated by the

Courts in the State in which he lives.

Was Victoria “clearly inappropriate”? Joe confined his claim to his reputation in Victoria as a consequence of

publication that occurred in that placeo The Law of Victoria would apply

Victoria not “clearly inappropriate”

It follows that the substantive issues arising in the action would fall to be

determined according to the law of Victoria

At Issue: Gutnick’s claim was a claim for damages for a tort committed in Victoria,

Not:

A Claim for damages for a tort committed outside the jurisdiction.

Defence argument: In the Supreme Court of Victoria, DJ challenged jurisdiction of the

Victorian court. The Court decided that it had jurisdiction, so DJ appealed to the High

Court of Australia. DJ said it was preferable to an Internet publisher to be subject to only one

law, which is the place where its servers are located. Otherwise, DJ would have to take account of the law in every country. “Certainty does not mean singularity”

Plaintiff’s Argument: Pl’s,. counsel argued - because article could be downloaded from the

internet by people in Victoria. – it was technically published there &

therefore the case should be brought before the Victorian Crt.

Defence Argument:

19

Dow Jones argues that since the material was written in the US &

originated from Dow Jones servers in NJ and 98% of those who read the

article were in the US – the case should be heard there.

Defence referred to the case of the Duke of Brunswick as establishing a

precedent involving the internet version of an article is published at the

point where the material, is uploaded onto the web server.

It was therefore argued, that a get message sent from the user’s computer

to the web site is the embodiment of the searcher who was seeking

information for the site. The information sought by the ‘get message’ was

then downloaded at the source and was therefore published at the same

place.

Jurisdiction in Relation to Defamatory Statements:

2. ACCC v Purple Harmony Plates Pty Ltd.[2001]

The case concerned the veracity of statements, which were made in marketing

consumer products (including on the Internet).

A single judge explained:Although website does not have au designation, he is satisfied that the crt has

jurisdiction in relation to the website.

Evidence that the website was reg’d in the name of the co.

The def. Asserted that the Crt had no jurisdiction over the website as his

contract with the co. which administered .com domain names was governed by

the laws of Virginia – US.

It was found to be irrelevant that the agreement with the domain name

administrator may not be subject to the jurisdiction of Australian crts.

The Commission has sought to invoke the Crt’s jurisdiction and power of

enforcement over the respondents.

20

21

Jurisdiction in Relation of the Tort of Defamation

3. Macquarie Bank v Berg [p.166 Cyber Text]

A question of jurisdiction involving the internet in 1999 before Justice Simpson of

the NSW Supreme Crt.

Case concerned an application by Macquarie Bank for an injunction to prevent

allegedly defamatory material being published on the Internet.

Facts:It is clear the def. S not present in NSW and any acts done by def.

That result in publication of the material in NSW are done from outside the State.

The def. Resides in the US.

Because of this a question of jurisdiction is raised.

There is authority that a crt. is empowered to restrain conduct occurring or

expected to occur outside the territorial boundaries of the jurisdiction..

Whether the power should e exercised is a qn. of discretion.

Factors relevant to the exercise of the discretion include the potential

enforceability of any orders made and whether another crt. is a more appropriate

forum. Helicopter utilities v Australian National Airlines Commission at 51.

Held:

To be no Jurisdiction – A common sense situation.

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Jurisdiction in Relation to A Criminal Action:

4. DPP v Sutcliffe [2001]

The recent decision of the Supreme Crt of Victoria in an instance related to a

stalking charge. The case gives an insight into the notion of criminal jurisdiction

of the operation of Victorian criminal law in the internet world.

Place of Harm of the Offence:While the ultimate harm of the stalking – an important element of the offence –

was alleged to have occurred in Canada –

Jurisdictional Factors Considered:The high cost of extradition and the ease with which the harm could be

disseminated made it sensible for the crt. .to interpret the Victorian Crimes Act in

such a way that would allow the alleged perpetrator to be tried for the crime in

the place or origin of the alleged harassing , material – especially when the def.

Is resident there.

Questions of LawIssues on Appeal:What are the elements, which constitute the offence of stalking under s 21A of the Crimes Act 1958.Does the Victorian Parliament have the power to pass a law creating an offence

in which one of the elements of proof occurred outside the state of Vict?

i.e. Can it create an offence, which has extraterritorial operation?

If the informant can prove the facts set outside the agreed statement of

facts, would he prove all the necessary elements of the offence?

Held:The Magistrate was wrong in dismissing the charge of stalking against the

respondent on the ground that the Magistrate’s Crt lacked jurisdiction.

It does have jurisdiction to hear the charge against the respondent even

though the essential ingredient of the offence – the proof of the harmful effect,

will involve proving the effect of the alleged stalking on a person who at all

relevant times was resident of Canada.

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What is US Approach to the Law of Internet Jurisdiction?

There is considerably more US law dealing with the application of jurisdiction rules to the Internet than in Australia or elsewhere in the world.While there is a greater body of law, not all the US decisions are consistent and is too early for the area of law to be settled.However, there are dominant themes:

The US have 2 general principles which govern a crts. assertion of personal jurisdiction over a foreign party:

1. The State Long Arm Statutes2. The Due process clause of the US Constitution

The long arm statures provide US Sate Crts with the Authority to hale foreign parties into crt

The States Long arm powers cannot exceed the Constitutional limits of due process

The test applied by the State crt in determining whether it can assert jurisdiction over a foreign defendant has certain minimum contacts with the State such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.

A foreign def will also be subject to the jurisdiction of a US State Crt where the nature & quality of the defendant’s contacts with the relevant state are continuous and systematic.

US crts also recognize the concept of: General jurisdiction over a foreign defendant which arises where a parties

contacts with the particular State are continuous & systematic and;

Specific Jurisdiction: over a foreign defendant which arises out of a contract which causes the specific injury to the plaintiff.

For specific jurisdiction to exist there must be:1. A purposeful availment by the defendant of the privilege of doing

business with the State2. The cause of action arises from the defendant’s activities within the

State &3. It would be fair & reasonable to exercise jurisdiction. [Cyber Text p.

143].

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United States 2 Main Tests For Jurisdiction:

1. The Sliding Scale: [143]2. The Effects Test &

There must be a Territorial connection – harm must be connected in the different jurisdictions.

Test 1: The Sliding Scale – Weber v Jolly Hotels [Text page 143]

Sliding Scale test when dealing with the issue of jurisdiction and contacts with a State through a website.At one end of the scale personal jurisdiction will exist over a defendant where the website allows a defendant to actively conduct business over the internet.

At the other end of the scale there will be no basis for personal jurisdiction where a website is passive in the sense that it merely makes information available to persons in the State.

For the areas in between the sliding scale: the application of personal jurisdiction depends on:

The level of interaction and; The commercial nature of the website.

The U.S.: Three Types of Websites:

The sliding scale analysis (Zippo Manufacturing case)1. Interactive, transactional website2. Passive website3. Middle ground

1. Sliding Scale Analysis:

Interactive, Transactional Website:Scenario 1:Def does business over the Internet, enters contracts with residents of foreign jurisdictions that involve knowing and repeated transmission of files over the InternetDef does business with plaintiff in another place.

Advice: Plaintiff can sue in plaintiff’s hometown

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2. Sliding Scale Analysis:

Passive Website:Scenario 2: Def simply posts information on website which is accessible to others Advice: Plaintiff cannot sue in plaintiff’s home town, without other connection with the jurisdiction

3. Sliding Scale Analysis Morantz case:

Middle ground: (Most Web Sites)Scenario 3: Interactive website where information can be exchanges Advice: Decided on a case-by-case basis: examine the level of interactivity and nature of the exchange that occurs on the website

Local Court Rules Many cases turn on local court’s interpreting their local court rules or statutory provisions. It is probably not worthwhile focusing only on Queensland rules, because you could have a Queensland client sued outside of Queensland in another court that will not apply Queensland rules.

Sliding Scale Analysis:Morantz Case (PA) Deemed to be the Passive Side of InteractiveFACTS: P sold machines that cleaned window blinds D opened cleaning business in NY and had national toll free telephone

number P sued D for TM infringement due to logo on website Court analysed the website:

Downloadable order form for promotional video Form to request additional information Link that user could click to send email No sales via website Volume of information exchange is small

The Crt said it had low-level interaction

It was deemed the passive side of interactive side

They needed to go to NY to sue

As they are not doing business in Pennslyvania

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Actively Conducting Business – Zippo manufacturing v Zippo.com

The pl. a Pennslyvania manufacturer of cigarette lights sued a Californian website & news service (zippo.com) For Trademark Infringement. The def’s contacts with Pennslyv. Were through the Internet only and it had entered into over 3000 contracts with Pennslyv. Residents to provide them with services.Crt found 3000 separate contracts was substantial enough to be a clear case of doing business over the Internet with the residents of Pennslyv.

Passive Conduct – not amounting to doing business – Benusan Restaurant v King (44 USPQ2d 1051 (2nd Cir. 1997)

Facts: Bensusan – pl. operated a famous NY jazz restaurant called “The Blue Note” and had a trademark registration for “The Blue Note”. Def. - King operates a small club in Missouri called “The Blue Note.” The pl. owned the Trademark The def. Operated a website.Advertising the Missouri ClubDisplayed a phone Number for ordering ticketsPurchaser had to pick up & pay the tickets at the box officeNo sales were made in New York

Bensusan sued King in NY. The pl. in NY

The def. in Missouri

The New York District Crt found it did not have jurisdiction over the

Missouri Club because the website was merely supplying information.

The Internet Site was merely an information service and the site was for

the benefit of Missouri residents only.

Blue Note Appeal Court decided that there was no personal jurisdiction Qn- is there a connection with NY?

– Commits a tortious act in NY? No– Commits a tortious act outside of NY that causes injury in NY?– “King's "Blue Note" cafe was unquestionably a local operation.”

Crt looked at the connection to NY – it was found you could not enter into any

transaction in NYC.

Long-Arm Jurisdiction.

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Grey area – level of interactivity & commercial nature– CompuServe Inc v Patterson

Facts:CompuServe sold shareware software via CompuServe’s business.Patterson – a resident of Texas but had entered into contracts with CompuServe specifying Ohio law as the governing law.Parties became involved in a dispute & Patterson objected to the jurisdiction of the Ohio crt.The Ohio crt exercised jurisdiction over Patterson on the basis that he had:

a. Purposefully transacted business in Ohio.b. Subscribed to CompuServec. Entered into separate agreement with CompuServe & had a continuing

relationship with CompuServe in Ohio.

Test 2: The Effects Test Calder v Jones

Calder v Jones Effects Test (also U.S.)The effects test was devised for defamation cases, and now applied to Internet

cases generallyFacts:

Def committed an intentional tort Pl felt the brunt of the harm caused by the tort in the jurisdiction such that

the jurisdiction is the focal point of the plaintiff’s injury. Def expressly aimed the tortious conduct at the forum. Jones was an actor in California - the defamatory article was published in

California - the focal point of injury to plaintiff.Held: Jones who lived in California could sue

Example of Calder Effects Test:

Griffis v. Luban (MN Supreme Court, July 2002) G is resident of Alabama L is resident of MN L defamed G in archaeology newsgroup– “obtained her degree from a box of crackers”– Liar, fake degree, not affiliated with Uni of AL G sued L in Alabama; L didn’t appear, so G got default judgment. G then tried to enforce her judgment in Minneapolis L challenged the jurisdiction of the Alabama court.

Held: Supreme Court of MN would not enforce the judgment of the Alabama court. Decision focused on “express aiming”. The fact that the messages could be read in Alabama, just as they could be read anywhere in the world, cannot be sufficient to establish Alabama as the focal point of the defendant’s conduct.

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The message was not aimed specifically to any particular are (jurisdiction).

Effect and focal point of conduct

Jurisdiction in Relation to Defamatory Statements:

Young v New Haven Advocate refer p.

Question Of Jurisdiction:

The question in this appeal is whether two Connecticut newspapers (and some staff) subjected themselves to personal jurisdiction in Virginia by posting on the Internet defamatory articles.

Defamatory Article:

The articles discussed the State of Connecticut's policy of housing its prisoners in Virginia institutions, & allegedly defamed the warden of a Virginia prison.

Application Of Standard: ALS Scan, Inc. v. Digital Service Consultants, Inc.,

A court in Virginia cannot constitutionally exercise jurisdiction over the Connecticut-based newspaper defendants;

o because they did not manifest intent to aim their websites or the posted articles at a Virginia audience.

In determining whether specific jurisdiction exists, we traditionally ask:

(1) whether the defendant purposefully availed itself of the privileges of conducting activities in the forum state,

(2) whether the plaintiff’s claim arises out of the defendant's forum-related activities, and

(3)"whether the exercise of personal jurisdiction over the defendant would be constitutionally reasonable."

Burden of Plaintiff:

The plaintiff, of course, has the burden to establish that personal jurisdiction exists over the out-of-state defendant. Young v. FDIC

Young did not argue that jurisdiction is proper in any location where defamatory Internet content can be accessed, which would be any-where in the world.

Young argues that personal jurisdictions was proper in Virginia because:

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1. the newspapers understood that their defamatory articles, 2. which were available to Virginia residents on the Internet,

3. would expose Young to public hatred, contempt, and ridicule in Virginia, where he lived and worked.

Discussed in Case: ALS Scan: Re Electronic Contacts.

The application of traditional jurisdictional principles to decide when "an out-of-state citizen, through electronic contacts, has conceptually `entered' the State via the Internet for jurisdictional purposes."

Held that "specific jurisdiction in the Internet context May be based only on an out-of-state person's Internet activity directed at [the formulate] and causing injury that gives rise to a potential claim cognisable [that state]." Id. at 714.

The Standard for determining Specific Jurisdiction Based on Internet Contacts:

The standard is consistent Calder v. Jones

In ALS Scan we went on to adapt the traditional standard for establishing specific jurisdiction so that it makes sense in the Internet context.

We "conclude [d] that a State may, consistent with due process, exercise judicial power over a person outside of the State when that person directs electronic activity into the State;

with the manifested intent of engaging in business or other interactions within the State, and

that activity creates, in a person within the State, a potential cause of action cognisable in the State's courts."

Was there a manifested Intent?

We thus ask whether the newspapers manifested an intent to direct their website content -which included certain articles discussing conditions in a Virginia prison - to a Virginia audience.

As we recognized in ALS Scan, "a person’s act of placing information on the Internet" is not sufficiently itself to "subject that person to personal jurisdiction in each State in which the information is accessed."

Otherwise, a person placing information on the Internet would be subject to personal jurisdiction in every State," and the traditional due process principles governing a State's jurisdiction over persons outside of its borders would be subverted.

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Conclusion:

The fact that the newspapers' websites could be accessed anywhere, including Virginia, does not by itself demonstrate that the newspapers were intentionally directing their website content to a Virginia audience.

Something more than posting and accessibility is needed to "indicate that the [newspapers] purposefully (albeit electronically) directed [their] activity in a substantial way to the forum state," Virginia.

The newspapers must, through the Internet postings, manifest intent to target and focus on Virginia readers.

Because the newspapers did not intentionally direct Internet activity to Virginia, and jurisdiction fails on that ground, we have no need to explore the last part of the ALS Scan inquiry, that is, whether the challenged conduct created a cause of action in Virginia.

Jurisdiction In Relation to Trade Secret Missapropriation

Matt Pavlovich v. DVD Copy Control Assn.

Facts: DVDs have CSS technology to prevent copying Matt lived in Texas; did not live or work in California There was no connection Matt operated a website that provided information only, including a list of

links about DVD technology for LINUX. Also posted source code for DeCSS.

Sued in California for trade secret misappropriation “knew these actions would adversely impact an array of businesses in CA,

including motion picture and consumer electronic industries.” The sliding scale test did not work.

Calder Effects Test Applied: Creating a website may have effects that are felt worldwide, but without

more, it is not an act purposely directed at the forum State.

Qn - Did Matt intentionally target California? Matt knew he would harm the motion picture industry. Foreseeability of harm not sufficient for jurisdiction, as then all torts would

be subject to where D is Can’t say all torts effecting motion pictures should be in California.

Otherwise, all potato cases would be in Idaho.

Held: The Case was thrown out of Crt. – it could not be heard in California. However – may still be sued in another jurisdiction – not California.

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The Crt held the forseeability of harm not sufficient for jurisdiction.

Example:

If P was correct, then “Australia student that makes backup program technology and distributed in Australia would be subject to jurisdiction in California”

Qn - Would the U.S. be able to enforce a judgment in Australia?

U.S. laws differ to Australia In Australia: Problem Australian Position: You have to harm someone in Australia. The Australian Authority - Gutnick – Only has to do some harm. “Is it major harm?” – “any harm done in Australia - no matter how small – has

grounds for defamation action.

This approach differs from the US:

US: The focus is on “express aiming”.

Effect and focal point of conduct

The law of defamation seeks to strike a balance between:

1. freedom of speech and the free exchange of information & ideas, and

2. an individuals interests in maintaining reputation in society free from

unwarranted slur or damage.

Gutnick and U.S. Law:

Could Joe enforce his Victorian judgment in the U.S?– Not if the U.S. court applies the Griffis v. Luban decision– DJ expressly aimed its conduct at U.S. businesses

Refer Griffis v Luban p. Decision focused on “express aiming”. The fact that the messages could be read in Alabama, just as they could be read anywhere in the world, cannot be sufficient to establish Alabama as the focal point of the defendant’s conduct.

The message was not aimed specifically to any particular are (jurisdiction).

Effect and focal point of conduct

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Differences in Approaches:

If Joe Gutnick had a website in Australia that defamed DJ, could DJ sue Joe in NY?

Just because the website is accessible here does not mean that this court has jurisdiction.

Otherwise, this court would have jurisdiction over all websites, regardless of where located.

Just because the website is accessible everywhere does not mean that this court should not have jurisdiction.

Otherwise, websites that are accessible here may not be subject to this court’s jurisdiction

Attorney General of MN’s statement:“Persons outside of Minnesota who transmit information via the Internet

knowing that the information will be disseminated in Minnesota are subject to jurisdiction of Minnesota courts for violations of state criminal and civil laws.”

Attorney General of Minnesota, Hubert Humphrey III, 1995

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Step: What Is the European Approach to Issues of Jurisdiction?

European Union & Internet Consumer TransactionsBrussels Convention 1968: Convention on Jurisdiction & the Enforcement of Judgements In Civil & Commercial Matters [Cyber text p. 173]

FranceHow did France try to exert jurisdiction in the Yahoo case?

The Yahoo Case illustrated the degree to which the French crts can exercise jurisdiction over the Internet and subject people and businesses in cyberspace (especially from other countries) to their legal standards.

Yahoo Case [Cyber Text p.156]Case showed the degree to which French crts. can exercise jurisdiction over the Internet & subject people and business of cyberspace ( from other countries to their legal standards.

Site was against French law – Anti-Semite Legislation – sued Yahoo & Yahoo France.Novelty – trying to get Yahoo – onus on Yahoo for anti-semite material accessible in France.There was a major practical problem: Limited Assets to enforce the judgment.

Defence argument rejectedOrdered Yahoo to:To take measures to prevent nazi objects appearing on siteOrdered Yahoo France – to warn parties that locating such nazi paraphernalia on the site is expressly forbidden in FranceOrdered Yahoo liable to pay penalty

The matter came before the French crts later in the same year – in relation to issues of jurisdiction & feasibility of the order.The technical possibility of implementing or obeying the initial order was examined in the request of the crt.

On 8 November 2001, the US District Crt. granted Yahoo’s motion for a summary judgment in this action, they held that enforcement of the French order in the US would contravene the First Amendment and represent an impermissible restriction of speech.

Differences in Approach:

U.S. approach: They don’t believe in an interventionist approach – - rather a poroquialist approach.

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French Approach: France was going to be ignored – and backed away - extremist approach.

Jurisdiction in Relation to Defamatory Statements:

YOUNG v NEW HAVEN ADVOCATE

Question Of Jurisdiction:

The question in this appeal is whether two Connecticut newspapers (and some staff) subjected themselves to personal jurisdiction in Virginia by posting on the Internet defamatory articles.

Defamatory Article:

The articles discussed the State of Connecticut's policy of housing its prisoners in Virginia institutions, & allegedly defamed the warden of a Virginia prison.

Standard For determining Personal Jurisdiction out of out of State person:

ALS Scan, Inc. v. Digital Service Consultants, Inc., 293 F.3d 707 (4th Cir. 2002), supplies the standard for determining a court's authority to exercise personal jurisdiction over an out-of-state person who places information on the Internet.

Application Of Standard: ALS Scan, Inc. v. Digital Service Consultants, Inc.,

A court in Virginia cannot constitutionally exercise jurisdiction over the Connecticut-based newspaper defendants;

o because they did not manifest intent to aim their websites or the posted articles at a Virginia audience.

Issues Considered:

Young alleged that the newspapers circulated the allegedly defamatory articles throughout the world by posting them on their Internet websites.

The newspaper defendants filed motions to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(2)

o on the ground that the district court lacked personal jurisdiction over them.

The district court denied the newspaper defendants' motions to dismiss, concluding that it could exercise personal jurisdiction over them under Virginia's long-arm statute, Va. Code Ann. § 8.01-328(A)(3), because "the

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defendants' Connecticut-based Internet activities constituted an act leading to an injury to the plaintiff in Virginia."

Specific jurisdiction only was argued, so we limit our discussion accordingly.

When defendant’s contacts with the forum state "are also the basis for the suit, those contacts may establish specific jurisdiction."

In determining whether specific jurisdiction exists, we traditionally ask:

(3) whether the defendant purposefully availed itself of the privileges of conducting activities in the forum state,

(4) whether the plaintiff’s claim arises out of the defendant's forum-related activities, and

(3)"whether the exercise of personal jurisdiction over the defendant would be constitutionally reasonable."

The plaintiff, of course, has the burden to establish that personal jurisdiction exists over the out-of-state defendant. Young v. FDIC

Young argues that the district court has specific personal jurisdiction over the newspaper defendants (the "newspapers") because of the following contacts between them and Virginia:

(1) The newspapers, knowing that Young was a Virginia resident, intentionally discussed and defamed him in their articles,

(2) The newspapers posted the articles on their websites, which were accessible in Virginia, and

(3) The primary effects of the defamatory statements on Young's reputation were felt in Virginia.

Young did not argue that jurisdiction is proper in any location where defamatory Internet content can be accessed, which would be any-where in the world.

Young argues that personal jurisdictions was proper in Virginia because:

4. the newspapers understood that their defamatory articles, 5. which were available to Virginia residents on the Internet,

6. would expose Young to public hatred, contempt, and ridicule in Virginia, where he lived and worked.

Discussed in Case: ALS Scan:

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The application of traditional jurisdictional principles to decide when "an out-of-state citizen, through electronic contacts, has conceptually `entered' the State via the Internet for jurisdictional purposes."

Held that "specific jurisdiction in the Internet context May be based only on an out-of-state person's Internet activity directed at [the formulate] and causing injury that gives rise to a potential claim cognisable [that state]." Id. at 714.

The Standard for determining Specific Jurisdiction Based on Internet Contacts:

The standard is consistent Calder v. Jones

Calder’s, relevance here because it deals with personal jurisdiction in the context of a libel suit.

In Calder a California actress brought suit there against, among others, two Floridians, a reporter and an editor who wrote and edited in Florida a National Enquirer article claiming that the actress had a problem with alcohol.

The Supreme Court held that California had jurisdiction over the Florida residents because "California [was] the focal point both of the story and of the harm suffered." Calder.

The writers' "actions were expressly aimed at California," the Court said, "[a]nd they knew that the brunt of [the potentially devastating] injury would be felt by [the actress] in the State in which she lives and works and in which the National Enquirer has its largest circulation," 600,000 copies.

Young argues that Calder requires a finding of jurisdiction in this case simply because the newspapers posted articles on their Internet websites that discussed the warden and his Virginia prison, and he would feel the effects of any libel in Virginia, where he lives and works.

Calder does not sweep that broadly, as we have recognized.

In ESAB Group, Inc. v. Centricut, Inc, we emphasized how important it is in light of Calder to look at:

i. whether the defendant has expressly aimed or directed its conduct toward the forum state.

We said that although the place that the plaintiff feels the alleged injury is plainly relevant to the [jurisdictional] inquiry, it must ultimately be accompanied by the defendant's own [sufficient minimum] contacts with the state if jurisdiction . . . is to be upheld."

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Conclusion of ALS Scan that application of Calder in the Internet context:

Requires proof that the out-of-state defendant’s Internet activity is expressly targeted at or directed to the forum state.

In ALS Scan we went on to adapt the traditional standard for establishing specific jurisdiction so that it makes sense in the Internet context.

We "conclude [d] that a State may, consistent with due process, exercise judicial power over a person outside of the State when that person directs electronic activity into the State,

with the manifested intent of engaging in business or other interactions within the State, and

that activity creates, in a person within the State, a potential cause of action cognisable in the State's courts."

When the Internet activity is the posting of news articles on a website, the ALS Scan Test works more smoothly when parts one and two of the test are considered together.

We thus ask whether the newspapers manifested an intent to direct their website content -which included certain articles discussing conditions in a Virginia prison - to a Virginia audience.

As we recognized in ALS Scan, "a person’s act of placing information on the Internet" is not sufficiently itself to "subject that person to personal jurisdiction in each State in which the information is accessed."

Otherwise, a person placing information on the Internet would be subject to personal jurisdiction in every State," and the traditional due process principles governing a State's jurisdiction over persons outside of its borders would be subverted.

CONCLUSION

The fact that the newspapers' websites could be accessed anywhere, including Virginia, does not by itself demonstrate that the newspapers were intentionally directing their website content to a Virginia audience.

Something more than posting and accessibility is needed to "indicate that the [newspapers] purposefully (albeit electronically) directed [their] activity in a substantial way to the forum state," Virginia.

The newspapers must, through the Internet postings, manifest intent to target and focus on Virginia readers.

IN APPLICATION TO THE CASE:

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Consider the pages from the newspapers' websites - general thrust and content.

The overall content of both websites is decidedly local,

o and neither newspaper's website contains advertisements aimed at a Virginia audience.

It appears that these newspapers maintain their websites to serve local readers in Connecticut, to expand the reach of their papers within their local markets, and To provide their local markets with a place for classified ads.

o The web sites are not designed to attract or serve a Virginia audience.

Examine the specific articles Young complains about to determine whether they were posted on the Internet with the intent to target a Virginia audience.

The focus of the articles,

o was the Connecticut prisoner transfer policy and its impact on the transferred prisoners and their families back home in Connecticut.

The articles reported on and encouraged a public debate - Connecticut, not Virginia, was the focal point of the articles. Cf Griffis v. Luban

The mere fact that [the defendant, who posted allegedly defamatory statements about the plaintiff on the Internet] knew that [the plaintiff] resided and worked in Alabama is not sufficient to extend personal jurisdiction over [the defendant] in Alabama,

o because that knowledge does not demonstrate targeting of Alabama as the focal point of the . . . statements.

The facts in this case establish that the newspapers' websites,

o & the articles in question, were aimed at a Connecticut audience.

The newspapers did not post materials on the Internet with the manifest intent of targeting Virginia readers.

The newspapers could not have "reasonably anticipated being hauled into court [in Virginia] to answer for the truth of the statements made in their article[s]."

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In sum, the newspapers do not have sufficient Internet contacts with Virginia permit the district court to exercise specific jurisdiction over them.

o Because the newspapers did not intentionally direct Internet activity to Virginia, and jurisdiction fails on that ground, we have no need to explore the last part of the ALS Scan inquiry, that is, whether the challenged conduct created a cause of action in Virginia.

We reverse the order of the district court denying the motions to dismiss for lack of personal jurisdiction made by the New Haven Advocate & parties

REVERSED

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