At the center of this civil court, case structure is the concept of jurisdiction. This concept in simple definition is interpreted as to whether a court has the right to adjudicate a case in respect to particular persons or activities. Broadly, the case ‘’Can the Australian High Court’s conclusion in Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 be reconciled with decisions in other international jurisdictions’’ requires that the law is applied, whether the court is appropriate to hear the charges, and the enforcing of the judgment. Because of this, the concept of jurisdiction provides an instrument for managing lawsuits more efficiently.
The case typically concurs with the conventional principles that state jurisdiction has been established upon philosophies of association to a particular country. In the global multinational universe of the internet, the notion of jurisdiction has been struggling to establish a reasonable definition1. Indeed to this extent, the case outlines that despite its past genesis, the internet has become more than just a communication network.
Accordingly, in a very short period, it has turned into an apparent market point without borders, a medium for debate and exchange of information, a criminal network, and a location for the uncontrolled exchange of intellectual properties. My view to this is that, regardless, worldwide and spread out form has also considerably transformed the uniqueness and responsibilities of the usual actors and mediators in a variety of activities. This ranges from trade to cultural production and information distribution.
Arguably, in my opinion, therefore, the case stipulates that the multiplicity and importance of a great deal in internet activities and their effects on grave local issues such as felony, national safety, and the financial system has inevitably obligated nations in the direction of enlarged engagement with affairs remote of their convectional areas of legal right. In my legal mind, the question then remains, does the jurisdiction of the case correspond to international legal practice.
The Regulation of the Cyberspace
The Westphalian concept seems to capture the entire case. On the whole, the concept that advocates for exclusive territorial sovereignty are gradually facing challenges from globalization and technological advancement such as the internet. Indeed as portrayed in the case, the Internet and globalization are putting more pressure and elongating traditional concepts of territorial autonomy. At its emergence, the internet was deemed by several people to be a lawless situation that was open from the restrictions of nationalized laws2. In my view the assumed lawless character of the internet was the reality that it did not appear, at the beginning under the control of nationalized administrations. Regardless, however, the association connecting national administration and the internet is now more and more clear.
For various reasons, the case seems to agree that national governments are not possibly going to agree with the perspective that internet activities be immune from direct regulation. In my view, this is so because internet activities bear upon a great number of significant local interests for a country to declare the internet free from nationalized laws. For that reason, despite the reality that the thought of the internet as a ‘wild west is a type of a borderless frontier, lawmakers and implementers have adequate support of nation-states insisting on the application of local laws to internet activities. However, the question that arises is when these domestic laws conflict, to what degree a country will persist on the application of its local laws, albeit the most important locus of the activities lies completely outside the jurisdiction.
Defamation law, especially the law of libel is a good example of the predicament3. Therefore, a case such as Dow Jones & Co v. Gutnick (2002) 210 CLR 5754 is a clear show that some nationalized court structures in several places are not leaning toward granting an indemnity to internet activities for facilitating the international movement of information and ideas. As is evident in the case, defamation law especially the law of libel gives rise to many challenging questions regarding regulating the internet. Information sent in one jurisdiction is easily accessible in another jurisdiction. Determining the location where the materials were published and the fitting preference of law to apply towards the posting present quite squirrelly queries.
International Law of Jurisdiction
The issue that this paper must then address is if state decision on matters that goes beyond their borders can be reconciled with decisions in other international jurisdiction based on the case study of Dow Jones & Co v. Gutnick. In international laws, a nation is subjected to restrictions on its right to implement jurisdiction in a lawsuit that engages foreign concerns or activity. Nonetheless, in my legal mind, these global laws do not oblige difficult and swift regulations on countries restricting spheres of national jurisdiction. Instead, it leaves countries extensive discretion in the issue. Of importance to take note of is that these as displayed in the case are that restrictions are not in dispute. Each country has a responsibility to practice self-control and bring under control invoking jurisdiction over lawsuit that has foreign component.
States are also required to avoid unnecessary infringement on the jurisdiction of other nations. A nation that practices jurisdiction in an exaggeratedly egotistical manner does contravene international law and may agitate international order, eventually producing political, legal, and economic retaliation.
Conventionally, the third jurisdiction, in most cases requires the jurisdiction to prescribe5. The differentiation of the above jurisdiction is significant in the determination of the restriction a state has in the jurisdiction under international law. In my legal mind, according to the type of jurisdiction that is under international practice which this case seems to be pegged on is the essential contact with the nation which is important in the support of the jurisdiction shows a discrepancy. Nevertheless, the three jurisdictions are in most cases dependent on each other and their extent and restrictions are fashioned by comparable considerations.
Jurisdiction to Prescribe, Adjudicate & Enforce: a focus on Dow Jones & Co v Gutnick
This case allows for legislative jurisdiction which refers to a situation where a country like Australia has the power to make its substantive rules appropriate to certain people and state of affairs. The international laws have for a long time acknowledged restrictions on the power of countries to exercise legislative jurisdiction in situations that have an impact on the interest of another state. Theoretically, it was agreed that a nation had jurisdiction to prescribe towards regulating actions within its borders over and above the behavior of its citizens overseas6.
In my mind, there is broad multinational agreement that not even the connection of territoriality is adequate in all circumstances for the exercise of legislative jurisdiction. This fact is what was being propagated in the Dow Jones & Co v. Gutnick by the Australian court7. According to the Australian court, defamation law was the novel area of private reputational defense courts acknowledged for persons8.
Dow Jones appealed against the decision of the Victorian arguing that the court had no authority of jurisdiction over the matter. He argued that the place of publication of the defamatory material was to be used in determining the location of jurisdiction. Even though the defamatory information was accessible to multiple people and times, Dow Jones argued that the publication could only have happened at one place and time. Since the publication was done in New Jersey, the U.S. had the authority over jurisdiction, and that New Jersey defamatory laws would have been the preference laws. This seems logical in the sense that website operators will not be subjected to multiple liabilities. This appeal was however rejected and the argument by the Victorian court was that the tort of defamation is intended to provide a solution to damages that are unquantifiable in terms of individual bodily harm but are rather more insubstantial and social.
The Australian line of argument over the Gutnick is equally supported by article 34 of the Vienna Convention on Diplomatic Relations9. Restatement section 402 provides summaries of ground on which a state can assert jurisdiction to prescribe10. According to these summaries, states have jurisdiction to prescribe if: conduct that utterly or in considerable part happen within their borders, actions outside its border that have or are likely to have a substantial effect within its borders, and particular actions across their borders by individuals who are not citizens among others. However, there is a common obligation of rationality in the determination of jurisdiction.
Even as one of the grounds of determining jurisdiction is there, a nation might not exercise legislative jurisdiction to an individual or activities that are connected with another nation when the implementation of jurisdiction is irrational. Section 2 of 40311 catalogs various aspects that need to be assessed in the determination of the rationality of the claim of jurisdiction. One of these aspects is the degree that the activities that happen in the state borders, or have considerable, undeviating, and predictable consequences upon or in the country12.
The Australian High Court’s conclusion in Dow Jones & Company Inc v
Gutnick to a greater extent was rational and thus can be reconciled with decisions in other international jurisdictions. One of such many cases is the notably Australian case of Dow Jones & Company Inc v Gutnick (2002) 210 CLR 57513. In this case, the court in Australia subjected Barron’s publication in its jurisdiction since the publication was accessible in Australia via the internet. Dow Jones was subject to suit in Australia for allegedly defamatory information materials that featured in an online version, even though the website was published and hosted in New Jersey. The court judgment was based in part on the fact that Barrons was accessed in Australia and several citizens had subscribed to Barron’s services. Since the publication was available to Australians who subscribed using Australian credit cards, the judges established that Dow Jones had acknowledged the danger of being charged in Australia and would be obligated to defend the charges in Australia.
According to the Australian court decision, the tort exclusively tackles the standing of an individual in society14. Its reasonableness in the case is the fact that the act of defamation is apprehensive of reputational concern as it engrosses the view that others in the society might have or have a tendency to have of the plaintiff. Where status is impugned, then an individual is entitled to a solution wherever that solution is present. As argued by Dow Jones, if the Australian court determined otherwise (that the place of publication was to be used in determining jurisdiction), then it leaves a publisher of information on the website being subjected to charges in any countries where a known plaintiff can provide evidence that individuals had accessed the allegedly defamatory materials. On the contrary, Gutnick claimed that publication in the light of defamatory libel happens only when another person figures out the information15.
Though it may be a fact that the E-information exists on Dow Jones’s serve in New Jersey, Gutnick argued that this did not place the charges there. In addition, the E-information is passive while in the server thus disseminating the information to nobody. It is through downloading that the materials were accessed incomprehensible format on personal computers. Hence, the plaintiff could provide evidence that there were website users who did the exchange from uploaded material to downloaded readable format making the materials comprehendible.
In such circumstances, a court has reasonable authority over jurisdiction regarding the defamation and can use its law according to the damage done with an assumption that the internet user read the material. On these grounds, the Supreme Court of Victoria held jurisdiction over the case. Dow Jones’s argument was not reasonable enough to deny the Australian court jurisdiction over the matter. Gutnick arguments were weightier.
Judicial jurisdiction refers to a country’s power to subject individuals or activities to the procedure of its court despite whether the country is a party to the hearings16. To qualify for judicial jurisdiction in international laws, a state must have an adequate or rational link with the forum country. Section 421 of Restatement states, “A country may exercise jurisdiction through its courts to adjudicate in respect to a person or thing if the relationship of the state to the person or thing is such as to make the exercise of jurisdiction reasonable”17. The reality that implementation of judicial jurisdiction is rational does not necessarily imply that the forum country has legislative jurisdiction.
Conversely, there could be a situation where a country has legislative jurisdiction but judicial jurisdiction is not present or uncertain. Judicial jurisdiction in most cases goes hand in hand with legislative jurisdiction. The fact that the Australian Court was best suited for the legislative jurisdiction in the matters of Dow Jones & Company Inc v Gutnick, then the court was also suited for judicial jurisdiction. The Gutnick decision is not without some challenges. According to this conclusion, a Dow Jones is left with liability without an end since the plaintiff is probable to seek exoneration they can everywhere they can. Eventually, there can be a drying of the following of information disseminated through the internet18.
Several conclusions can be drawn from this case. Whether the global community is capable of facing the test of using deliberative egalitarianism to outline both internet control and how national authority is figured against internet activities is an open issue. The prospective for the formation of a more all-encompassing opportunity is available, and there are possibilities of more to work within the present time in terms of standard and readiness than there has ever been in the past.
The internet by itself is an instrument to deal with the deficient resources to use on involvement, which may or else be a barrier to achieving a more inclusionary governance organization. This remains as the assurance and test of the internet, a chance to hold a second thought on the primary ideology of national supremacy, citizen participation, and international administration structures in a moment of important technological transformation and social changes.
Brenner Susan and Bert-Jaap Koops, Approaches to Cybercrime Jurisdiction. 2012. Web.
Sendai Dale and Arbogast James, Net Use Raises Issues of Jurisdiction (Nat’l L.J. 1996).
Debussere Frederic, International Jurisdiction over E-Commerce Contracts in the European Union: Quid Novi Sub Sole. International Journal of Law and Information Technology (10(3) 344-366, 2002.
Dow Jones & Co. Inc. v Gutnick (210 CLR 575, 2002).
Edwards Lilian, Caveat Uploader? Recent Developments in Cyberspace Jurisdiction. Web.
Fitzgerald, Fitzgerald, Clark, Middleton and Lim Internet & E-commerce Law, Business and Policy (Lawbook Co, 2011).
Ho¨rnle Julia, The Jurisdictional Challenge of the Internet, in Law and Internet (supra note 60, at 121, 158).
Raysman Richard and Brown Peter, Computer Law: Online Legal Issues (New York L.J. 1995).
Report on the Proposal for a Regulation of the European Parliament and of the Council on the Law Applicable to Non-Contractual Obligations (“Rome II”), (Eur. Parl. Doc. A6-0211/2005). Web.
Scassa Teresa & Robert Currie, New First Principle. Assessing the Internet’s Challenges to Jurisdiction. Georgetown Journal of International Law (1017-1081 2011).
Timofeeva Yulia, Worldwide Perspective Jurisdiction in Internet Content Controversies: A Comparative Analysis (J. Int, L. 2005).
UNCITRAL, Report of the United Nations Commission on International Trade Law (254 U.N Doc A/65/17 2010).
United Nations Convention on the Law of the Sea, (Annexes III and IV, U.N Doc. A/CONF. 62/122.
- Edwards Lilian, Caveat Uploader? Recent Developments in Cyberspace Jurisdiction.
- Edwards Lilian, Caveat Uploader? Recent Developments in Cyberspace Jurisdiction; Debussere Frederic, International Jurisdiction over E-Commerce Contracts in the European Union: Quid Novi Sub Sole.
- Cendali Dale and Arbogast James, Net Use Raises Issues of Jurisdiction.
- Dow Jones & Co. Inc. v Gutnick (210 CLR 575, Austl 2002).
- Id 14.
- UNCITRAL, Report of the United Nations Commission on International Trade Law.
- Id 10.
- Timofeeva Yulia , Worldwide Prespective Jurisdiction in Internet Content Controversies: A Comparative Analysis; Id 14.
- See Id 18.
- Report on the Proposal for a Regulation of the European Parliament and of the Council on the Law Applicable to Non-Contractual Obligations (“Rome II”).
- See id 18; 25.
- Cendali Dale and Arbogast James, Net Use Raises Issues of Jurisdiction.
- See Id 14.
- See Id 14.
- See Id 14; Raysman Richard and Brown Peter,Computer Law: Online Legal Issues.
- See Id 30; Id 27.
- Id 5; 18.
- See Id 27; 8.