Internet Jurisdiction: A Comparative Analysis (Harvard Law Review)
The difficult jurisdictional issues raised by the Internet have captured significant attention, prompting one federal judge to comment that, “[t]o paraphrase Gertrude Stein, as far as the Internet is concerned, not only is there perhaps ‘no there there,’ the ‘there’ is everywhere where there is Internet access.” This lack of clear borders creates tension between different interests. The media desire certainty regarding when online content creates a basis for personal jurisdiction so that they can avoid defamation lawsuits in distant places. Sovereign nations want to ensure that the ubiquitous nature of the Internet does not undermine their ability to enforce substantive laws balancing speech and reputation rights. This Part’s comparison of U.S. and Commonwealth cases reveals differing approaches to determining when to exercise jurisdiction over media defendants based on Internet content. U.S. courts have adopted a targeting test that requires purposefully directing activity at a forum as opposed to merely providing content accessible there. Courts in Commonwealth countries, including Australia, the United Kingdom, and Canada, have based jurisdiction on foreseeability, exercising jurisdiction over any online media content that could harm a plaintiff’s reputation in the forum. Although these inconsistent jurisdictional tests are a matter of procedure, they stem from different substantive laws and from Commonwealth courts’ underlying unfriendliness to U.S. free speech protections. Media defendants have argued for special jurisdictional rules applicable to the Internet alone; however, any such call for reform must recognize that the procedural divergence results from entrenched substantive differences. Thus, this Part argues that absent an international agreement harmonizing the jurisdictional analysis, courts are not likely to adopt special Internet rules, and media groups will instead be compelled to turn to technological solutions.
http://www.harvardlawreview.org/issues/120/feb07/DEVO/DEVO_intro07.pdf