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Centennial Regional Meeting of ASIL Golden Gate University School of Law Sixteen Annual Fulbright Symposium on Current International Legal Issues San Francisco, 7 April 2006

A Just World under Public International Law in Cyberspace: Jurisdiction Henrik Spang-Hanssen
Approved for publication in Annual Survey of International and Comparative Law Volume XIII 13 ANNSICL… - 2007 Golden Gate University, School of Law but forgotten during printing
© 2006 Henrik Spang-Hanssen This paper can be downloaded without charge from the Social Science Research Network Electronic Paper Collection: http://ssrn.com/abstract=1092389
Senior Researcher Henrik Spang-Hanssen’s research-website: www.geocities.com/hssph e-mail: hssph@yahoo.com

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A Just World under Public International Law in Cyberspace: Jurisdiction Henrik Spang-Hanssen*
1. Introduction 2. Henrik’s Six Steppingstones 2.1 First Base: Pure Online (cross-border) 2.2 Second Base: No one owns Cyberspace 3 3 3 3 4 6 6 7

2.3 Third Base: The discussion of Cyberspace issues should be limited 2.4 Fourth Base: No Worldwide Jurisdiction besides Universal Jurisdiction 2.5 Fifth Base: Internet protocols have become customary law 2.6 Sixth Base: Computer programmers & lawyers are rule-makers for Cyberspace 3. When is a State allowed to govern 4. The aim of Jurisdictional rules 5. The Big Problem 6. When is a State allowed to govern in Cyberspace? 7. A “Pure Online Example: Online Newspapers 7.1 Differences for newspapers 7.2 Some perspectives 7.2.1 Single Publication Rule 7.2.2 Retraction Rule 7.3 Some newspaper cases with foreign aspects 7.3.1. Malaysia 7.3.2. Canada 7.3.3. United Kingdom 7.3.4. Australia 7.3.5. Germany 7.3.6. United States 13 13 14 14 7 8 10

10 13

15 15 15 17 18 20 20 20

8. How to achieve A Just World under Public International Law for Newspapers in Cyberspace

Henrik Spang-Hanssen is by several person involved in public international law regarded as an extraordinary scientist and the one or one of very few that is an expert on the issue of public international law and public international computer network (the “Internet”). He has primarily done research from Stanford University in California, Oxford University in England, and the Norwegian Research Center for Computer and Law, Oslo University. He first time used a computer back in 1971 at the Niels Bohr Institute in Copenhagen. He has Master’s degrees in Law from Denmark and California (US High Tech Law). He is a licensed Supreme Court attorney-at-law in Denmark and has previously worked as prosecutor in Danish Appeal Courts. He is a previous student at the Technical University of Denmark. He is the author of the books: Cyberspace Jurisdiction in the U.S. (2001), Cyberspace & International Law on Jurisdiction (2004) and Public International Computer Network Law Issues (2006).

*

He is co-author of Legal Research Methods in the US and Europe (2008).

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1. INTRODUCTION
In this article1 I first state my six steppingstones2 that I use when dealing with what I have termed “pure online”3 (see below First Base) incidents on public international computer networks, where public international law is determining. As for the later, I use the term “Global Jurisdiction”,4 which is characterized by a State’s jurisdictional rules taken on its “wording” reaches all alien cybernauts, thus making a Worldwide jurisdiction involving aliens whom can be anywhere in the world (outside the forum state). This term has to be distinguished from Universal Jurisdiction. Thereafter, I briefly mention the aim of jurisdiction rules, the big problem with the Internet in relation to jurisdiction and when a state under public international law is allowed to legislate (prescribe and adjudicate) and enforce. Next, I use online newspapers as a “pure online” example and give some perspectives and mention how different states have tried to exercise global jurisdiction over foreign online newspapers. Finally, I make some short remarks on how to achieve A Just World under Public International Law for Newspapers in Cyberspace.

2. HENRIK’S SIX STEPPINGSTONES 2.1 First Base: Pure Online (cross-border)
When I deal with Cyberspace, I use the term “pure online”, that is, no physical shipment or tangible things are involved, and at least one user is a foreigner, that is, non-resident or nonnational in the State or court’s forum in question.

2.2 Second Base: No one owns Cyberspace
The Internet should not belong to any single State or special group of States. The public international computer network is something “given to mankind”. At this point should be noted that the Internet protocols (IP/TCP) was made as an open code, which means, that no one had propriety over it. Secondly, the public international

This is a reversed version of the text that was handed out at Spang-Hanssen’s presentation at the Centennial Regional Meeting of ASIL/Sixteen Annual Fulbright Symposium on Current International Legal Issues held at Golden Gate University School of Law, San Francisco, 7 April 2006. 2 HENRIK SPANG-HANSSEN, PUBLIC INTERNATIONAL COMPUTER NETWORK LAW ISSUES 1-8 (DJØF Publishing September 2006 - ISBN 87-574-1486-6) [hereinafter SPANG-HANSSEN-3]. 3 HENRIK SPANG-HANSSEN, CYBERSPACE JURISDICTION IN THE U.S. – THE INTERNATIONAL DIMENSION OF DUE PROCESS 137 (Complex 5/01, Norwegian Research Center for Computers and Law, Oslo University 2001 – US Congress Library 2003450386), also free downloading from my research website <www.geocities.com/hssph> [hereinafter SPANG-HANSSEN-1]; and HENRIK SPANG-HANSSEN, CYBERSPACE & INTERNATIONAL LAW ON JURISDICTION 298 (DJØF Publishing, Copenhagen 2004 – 87-547-0890-1 – US Congress Library 2004441311) [hereinafter SPANG-HANSSEN-2]. 4 See further, SPANG-HANSSEN-3 supra note 2, at Foreword and Chapter three, section 3.3.1, Types of Jurisdiction

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computer network consists of computers and other equipment that is placed around the world and many different people, organizations, and firms own each part of this equipment.5 The HTTP protocol that made the use of the Internet explode, was developed by an Englishman at CERN in Switzerland, Bernard Lee, who invented the World Wide Web around 1990. He dedicated the protocol to the whole world.6 HTTP’s (and thus www) purpose was to ease the interchange of information from one computer to another, thus making it possible to get information from foreign computers or networks. Thus, HTTP, which is the basis for websites, is made for the purpose of making telecommunication across borders easy and accessible on an international computer network.

2.3 Third Base: The discussion of Cyberspace issues should be limited
At page 8 in “Cyberspace Jurisdiction in the U.S.”, I noted that it would be preferable for Internet users if any action on the Internet could be covered by the same rules worldwide, an International Internet Law in such a way that it didn’t matter where on Earth the case was brought into court. However, this is not possible because each country has its own special local interests, politics and laws. Therefore, my thesis is, that whenever an action on the Internet is taken and all participants live in the same country, court in that country will use the law (directly or by analogy) of that country – or the country’s decision-makers will make a law to deal with the national Internet-matter. Law decision-makers will of obvious reasons not in such a “pure” national-related case accept that national law should become non-valid just because a national defendant argues that Internet had been used and should have it owns rules. Furthermore, it is my thesis that in cases where borders are crossed and an issue is dealt with in an international treaty, the rules of this treaty would also be used for the Internet case if it can be done without to much use of analogy - or small easy quick amendments might be made. I do not believe it is practical to make completely new treaties for the Internet, as that would take decades. Therefore, my conclusion is that special International Internet Law will be needed only for areas where the Internet fundamentally has created new issues and in cases where borders have been crossed. Furthermore, no nation in the world will accept that its inhabitants can be judged and/or convicted anywhere in the world for every action on the Internet. There has to be set up some guidance for Internet users, so they know where to expect with fairness to be sued. Thus, it would be reasonable if every court in the world before making its final decision viewed what international aspect the decision would make for people outside the jurisdiction and thus whether the decision would comply with international fair play and substantial justice. Dealings on the Internet in “Cyberspace Jurisdiction in the U.S.” page 10-11 are being divided into the following three groups:7
Contents of Messages
See further, Henrik Spang-Hanssen, Who should govern telecommunications on the public international computer networks, NORDIC JOURNAL OF INTERNATIONAL LAW (upcoming 2008). 6 Berners-Lee is now director of the World Wide Web Consortium (W3C), which aim is to ensure the www’s interoperability, <http://www.ibiblio.org/pioneers/lee.html> (visited April 2003). 7 SPANG-HANSSEN-1 supra note 3, page 10-11.
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Sent by person in country A Received by person in country A Received by person in country B
Law of country A Sending by normal mail: Normal International Postage’s Law/ Acts between the countries

Sent by person in country B
Sending electronic mail: (New) Cyberspace jurisdiction & law Law of country B

Information on Web-pages
Made by person in country A Read by person in country A Read by person in country B
Law of country A

Made by person in country B
(New) Cyberspace jurisdiction & law

(New) Cyberspace jurisdiction & law

Law of country B

Trade/commercial through Internet
Vendor is person in country A Buyer is Person in country A Buyer is person in country B
Law of country A Tangible things: (Delivered by carrier)* “Normal” jurisdiction “Normal” law (consumer / agreement)

Vendor is person in country B
Delivered electronic/By downloading: (New) Cyberspace jurisdiction & law*

Law of country B

* Dilemma: two kinds of rules for e.g. selling software:
If delivered pr. ordinary mail/post => If delivered electronic/downloading => normal law and normal jurisdiction no law and no jurisdiction

The italicized fields are of special interests when dealing with the issue of personal jurisdiction and Cyberspace/Internet.
Thus, when discussion Cyberspace and issues related to this, it is my opinion it is only worth discussion issues where the Internet fundamentally has created new issues and in cases were borders have been crossed.

In all other instances, one should regard the Internet as only an alternative to other mediums as phone, telefax etc. Thus, where the Internet is only used as an alternative to old phone-conversations or mail-order (not pure-online, see below), the issue should be dealt with by “old” rules in public international law. There is no reason to make new special Internet legislation. The old treaties on Telecommunication and Postage should cover such matters. Especially, I hold that whenever there is a tangible good involved, there is no new issue. It is evidently only use of the Internet to mail-order something as the Internet evidently is not able to make the deliverance. Thus, the issue is not new and there will be “old fashion” border-custom-control because the purchase has to be shipped physically. However, the issue is new if everything is only going on on the Internet. For example if one orders online a software or music file, pays online and get the delivery by downloading the purchased. Nevertheless, this does not imply a special jurisdiction for Cyberspace.8

8

As suggested by David R. Johnson & David Post, Surveying Law and Borders – The Rise of Law in Cyberspace, 48 STAN.L.REV 1367 (1996) [hereinafter D. Johnson].

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2.4 Fourth Base: No Worldwide Jurisdiction besides Universal Jurisdiction
The fact that for example content on a website on the Internet or an online newspaper article can be viewed by everyone and from everywhere, has let certain courts around the world to claim they have worldwide or “global”9 jurisdiction, even though the content was not especially intended for the forum of the court. However, public international law does not allow “global” or worldwide jurisdiction. What is called “universal” jurisdiction is only allowed when the international society has accepted this10 – and if so it will only be for a very limited and specific issue, for example War-crime or Piracy on the sea. In public international law there are two basic requirement: (1) a link or closeness between the alien and the forum state; and (2) reasonableness. As for the first, in the perspective of Cyberspace it seem more appropriate to use the term “closeness” than “effect” or “target”11; and as for the second, in the perspective for Cyberspace is seem appropriate not only to require reasonableness but also predictability12 from the alien’s point of view, thus allowing a potential defendant to structure his primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit. It is reasonableness in international law that is decisive.13 Thus, what is relevant, it is not the subjective or political interest of the forum State, but the objective test of the closeness of connection, of a sufficiently weighty point of contact between the facts and their legal assessment.14

2.5 Fifth Base: Internet protocols have become customary law
The Internet is not an application but a data delivery service. It uses and is defined by a pair of protocols called Transmission Control Protocol, TCP and Internet Protocol, IP (usually referred to as TCP/IP). These define how the data is partitioned and carried, and contain techniques for error control since the original Internet was designed to work on noisy, error-prone mesh networks. TCP/IP is a connection-oriented protocol meaning that it relies on getting acknowledgments of each data packet sent out.

The Internet Protocol (IP) is a network layer protocol and its task is to deliver packets of data from a source host to a destination host. Transport Control Protocol/Internet Protocol (TCP/IP) is a packet-switching protocol, which is for reliable end-to-end transport.15 My claim is that
“Global Jurisdiction” is characterized by a State’s jurisdictional rules taken on its “wording” reaches all alien cybernauts, thus making a Worldwide jurisdiction involving aliens whom can be anywhere in the world (outside the forum state). This term has to be distinguished from Universal Jurisdiction. See further, SPANG-HANSSEN-3 supra note 2, at Foreword and Chapter three, section 3.3.1, Types of Jurisdiction. 10 SPANG-HANSSEN-2 supra note 3, at 252-254, IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 303 (6th Edition, Clarendon Press, Oxford – ISBN 0199260710), OPPENHEIM’S INTERNATIONAL LAW 469-470 (London and New York: Longman 9th Ed., paperback edition 1996 – ISBN 0582302455). 11 SPANG-HANSSEN-2 supra note 3, at 242, 365-366. 12 SPANG-HANSSEN-2 supra note 3, at 371. 13 SPANG-HANSSEN-2 supra note 3, at 256. 14 F.A. MANN, FURTHER STUDIES IN INTERNATIONAL LAW 13 & 15 (1990, Clarendon Press, Oxford – ISBN 0198252471). 15 See further, SPANG-HANSSEN-3 supra note 2, at Chapter 2, IPv6 – Possibilities of Dividing Cyber-space into Jurisdictions.
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if professor Lawrence Lessig16 and several others are right that ”code is law”, and if the TCP/IP-protocol according to the constructors of the Internet is the “Constitution of the Internet”, and none of the users in the World (governments, international organizations and individuals) since the establishment of the protocols has demanded it changed over the last 20 years, one can fairly assert, that this international basic protocol-code for international computer network - which Lessig describe as law has become customary international law, which can be advanced before and used by the International Court of Justice in The Hague.17

2.6 Sixth Base: Computer programmers & lawyers are rule-makers for Cyberspace
The IP/TCP protocol is ruling the Internet and these are written by computer technicians. The law, which is ruling Cybernaut’s behaviour, is made by lawyers/legislators. When mentioning present caselaw from around the world to computer technicians these are often totally astonished of the court decision’s worldwide range, because the technicians regard and build the Internet to be borderless. In their opinion, the judges and legislators are totally wrong and have a totally mistaken belief of the Internet. Furthermore, legislation over public international computer networks only can be done with the cooperation of the international society of states or citizens and after discussions with computer technicians. Thus, if effective legislation over Cyberspace is wanted, technicians, legal scholars and legislators have to cooperate.18

3. WHEN IS A STATE ALLOWED TO GOVERN
International public law on jurisdiction to prescribe can be summoned up as:19
Nationality principle - confers jurisdiction over nationals of the State concerned. Can be divided into o Active personality principle - based on the nationality of the suspect. International law accepts jurisdiction over a state’s owns citizens based on nationally, or the links between the individual and the state o Passive personality principle or Passive nationality principle - based on nationality of the victim, not the nationality of the offender (controversial)

LAWRENCE LESSIG, CODE AND OTHER LAWS OF CYBERSPACE (Basic Books 1999 - ISBN 0-465-03913-8). SPANG-HANSSEN-2 supra note 3, page 331-333 & 340-341. 18 SPANG-HANSSEN-2 supra note 3, Chapter 35 and statement in para 35 of the Tunis Agenda for the U.N. World Summit on the Information Society, reprinted in OUTCOME DOCUMENTS (International Telecommunication Union, December 2005) at <www.itu.int/wsis/promotional/outcome.pdf> (visited July 2006) (The “management of the Internet encompasses both technical and public policy issues and should involve all stakeholders and relevant intergovernmental international organizations”). 19 SPANG-HANSSEN-2 supra note 3, page 243-258.
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Territoriality principle confers jurisdiction on the State in which the person or the goods in question are situated or the event in question took place. Can be divided into o Subjective territoriality principle - permits a State to deal with acts which originated within its territory, but was completed or consummated abroad o Objective territoriality principle – permits a State to deal with acts which originated abroad but which, at least in part, were i. the “effect doctrine” - consummated or completed within their territory –; or ii. the protective theory - producing gravely harmful consequences to the social or economic order inside their territory. The protective theory covers a variety of political offences and is not necessarily confined to political acts. The principle is well established and seems justifiable because it protect a state’s vital interests. However, it can easily be abused. The decisive is the importance of the offence, which standard is supplied solely by international law.

4. THE AIM OF JURISDICTIONAL RULES
Jurisdiction is a vital and indeed central feature of state sovereignty, for it is an exercise of authority, which may alter, create, or terminate legal relationships and obligations.20

It follows from the nature of the sovereignty of states that a state must not intervene in the domestic affairs of another state.21 Some legal scholars have the opinion, that there must be made one specific worldwide legislation for disputes involving communication/commerce via computers network, because otherwise any jurisdiction on Earth can hold it is the proper one; and thus imply the risk that several jurisdiction at the same time decide a dispute22 – a lex Cyberspace similar to the Conventions on the High Seas and on Law of the Sea and lex Mercatoria (Merchant). Other scholars have the opinion that the jurisdictional question should be solved by technical solutions, e.g. by make a "zoning” of the network.23 Several national courts has emphasized that the Internet is an international system and rejected to use a near community criterion, since a community standards criterion as applied to the Internet would mean that any communication available to a nation-wide audience will be judged by the standards of the community most likely to be offended by the message. 24 The Commission of the European Union has several times as for cross-border Internetcommerce noted that the Community has to shift from the destination principle and in stead use the country of origin principle. This may be compared with the rule in the Law of the Sea, which states that the Flag State has exclusive jurisdiction on its ships on the High Seas.
MALCOLM N. SHAW, INTERNATIONAL LAW (4th Edition, Cambridge University Press) page 452 [hereinafter SHAW] 21 SHAW supra note 8, page 454, and Justice Story in The Apollon, 22 U.S. 362, 370 (U.S. 1824). 22 D. Johnson supra note 7 and David G. Post, Anarchy, State, and the Internet 1995 J.Online.L.Art.3 <www. Law cornell.edu/jol/post.html> (Visited February 24 1999). 23 Lawrence Lessig, Reading the Constitution in Cyberspace, 45 EMORY LAW JOURNAL 869 (1996); Lawrence Lessig, Surveying Law and Borders: The zones of Cyberspace, 48 STANFORD LAW REVIEW 1403 (1996); LAWRENCE LESSIG LAWRENCE, THE FUTURE OF IDEAS – THE FATE OF THE COMMONS IN A CONNECTED WORLD (Random House 2001 - ISBN 0-375-50578-4) 24 See e.g. the US Supreme Court case Reno v American Civil Liberties Union, 521 U.S. 844, 877-78 (US 1997).
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In a “Joined declaration issued by the European Parliament and Commission” at the time the Council Regulation No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters was passed, the Council and the Commission stressed that the mere fact that an Internet site is accessible, is not sufficient for Article 15 to be applicable, although a factor will be that this Internet site solicits the conclusion of distance contracts and that a contract has actually been concluded at a distance, by whatever means. In this respect, the language or currency, which a website uses, does not constitute a relevant factor.25 The innovation of the Internet and Cyberspace has made the question of personal jurisdiction much more important than at any time before, since the use of the Internet nearly always involve international aspects. The starting point in every case involving the Internet should be that the case is international rather than national. In May 1992, the United States suggested to the Hague Conference on Private International Law to draft a Convention on Jurisdiction and Enforcement of foreign Judgments. In a Summary of discussions in March 2000 was noted that at no time was it suggested that electronic commerce should be excluded from the draft. Three points were discussed: (a) contracts concluded on-line and performed off-line; (b) contracts concluded and performed on-line; and (c) identification and location of the parties. In a paper of February 2002, it was pointed out that the Internet could no longer be considered as only marginally relevant to the Convention draft. The ongoing globalization of trade and commerce, and the exponential growth of the use of the Internet and e-commerce continue to add to the need for a global framework for jurisdiction and the recognition and enforcement of judgments. The Internet environment adds to the complexity of the issues to be resolved in specific provisions; on the other hand, it reinforces the common need for a global framework on jurisdiction and recognition and enforcement in civil and commercial matters.26 However, due to realized disagreements between the conferences member states presented at an informal working group in March 2003, it was decided to limit a drafts only to a Convention on Choice of Court Agreements (and no consumer involved) and in reality leaving the whole issue of the Internet unsolved. As for foreign plaintiffs and jurisdictional rules, the latter will only have any real value, if courts decisions later can be executed. If any given nations jurisdictional rules in practice does not have any limits, then the rules will have no real value and should in stead just state it will catch any non-resident (“worldwide jurisdiction”). Then it will be for the court that is to execute the decision to decide the “real” jurisdictional question determining whether the first court’s decision can be acknowledged. Such a regime has never been the wish of any country’s legislators. It has no real value for a plaintiff, if a sovereign or its court decide an issue of a case, but all other nations holds that the issue or case belongs to or are much more related to another nation. If the different nations or jurisdictions do not consider the implications of their decisions on the worldwide network of computers - and thus over users outside the particular
25

<http://europa.eu.int/comm/justice_home/unit/civil/justciv_conseil/justciv_en.pdf>. Reprinted page 564-566 in SPANG-HANSSEN-2 supra note 3. 26 See SPANG-HANSSEN-2 supra note 3, pages 453-460.

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jurisdiction - the result can very easy become an extremely inefficient and cribbed network,27 where only material allowed by every nation can be accessed. Such a regime will probably conflict with the UN rules on free speech and respect of other nations’ people.

5. THE BIG PROBLEM
As mentioned above, the main and big problem with the Internet is that there is accessibility for everyone from everywhere. States (with physical borders) are the backbone of Public International Law, but Cyberspace is borderless. In public International Law, the requirement for a State being allowed to prescribe, adjudicate & enforce is that there exists a Close Link and that it from an international society point of view is Reasonable the State in question deal with the issue. On public international network every State could be said to have concurrent jurisdiction, since the online experience in every State will be the same for everybody, thus, the “effect” would be everywhere. Therefore, in the perspective of Cyberspace it seems more appropriate to use the term “closeness” rather than “effect” or “target”. Thus, the real problem of international law is to define the circumstances in which the relevant points of contact (the legal relationships) are sufficiently close. Or otherwise stated, the problem is where do Internet transactions take place?

6. WHEN IS A STATE ALLOWED TO GOVERN IN CYBERSPACE?
As the public international computer networks (Internet or Cyberspace) cross national-borders, public international law is the ruling source.

However, this is often forgotten by legislators, courts, and scholars – that prefer to disregard and only look at national and/or private international law (choice of law). One author, which often writes about Cyberspace law, has the opinion that:
The principles for establishing applicable law and jurisdiction in cross-border transactions were established many years ago, well before the invention of computers and digital communications networks. Private international law, or conflict of laws, determines these matters by deciding whether a relevant element of the transaction can be localized in the jurisdiction in question. We therefore need to ask where an Internet transaction occurs or, more pertinently, where each element of that transaction takes place.28

“if every jurisdiction in the world insisted on some form of filtering for its particular geographic territory, the World Wide Web would stop functioning.” From e-mail of Vinton Cerf, Chairman of Internet Corporation for Assigned Names and Numbers (ICANN) and previous Stanford University professor, 24/11 2000 to Agence France-Presse in connection to his expert statement to a French court about Yahoo-US’s web site, Agence France Pres 24. November 2000, 2000 WL 24767154 (Westlaw database AGFRP) and Putting it in its place, THE ECONOMIST, August 9th 2001 at <http://www.yale.edu/lawweb/jbalkin/telecom /puttingitinitsplace.html> (visited 14 October 2003). 28 CHRIS REED, INTERNET LAW – TEXT AND MATERIALS 218 (2. ed, 2004 – Cambridge University Press).

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However, this statement is far from correct as there have been no cases about the Internet before international tribunals and there exist not any treaties dealing with Cyberspace ratified by a larger number of states of the international society.29 Furthermore, as mentioned above in section 5, the big issue for public international law – that is the decisive for the states different Private international law or conflict of laws – is to decide where an online incident is occurring “in” or “outside” a certain state’s jurisdiction pursuant to public international law. This issue has far from been decided yet.30 International public law on jurisdiction to prescribe - and adjudicate - in relation to international computer network can be summoned up as in the following table as for Pure Online cross-border:31

29 30

The only true treaty dealing with Cyberspace is probably the (European) Cybercrime Convention. The European Cybercrime Convention is totally silent on this vital issue. See further, SPANG-HANSSEN-3 supra note 2, at 318. 31 SPANG-HANSSEN-2 supra note 3, page 299-300.

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Made online from State D by national of state A International Law involved State E regarded as sender or receiver state?

Made online from Made online from State D by national State D by national of of State C, but State B citizen of A International Law involved State E regarded as sender or receiver state? International Law involved State E regarded as sender or receiver state?

Uploaded in State E

International Law International Law involved involved Objective and Passive Objective and Passive Received in State personality personality B (controversial) (controversial) principles allow State principles allow State B to prescribe? B to prescribe?

International involved

Law

the Subjective Territoriality Principle allows State D to prescribe in all fields the Active Personality Principle allows the State of nationality or residency of the suspect to prescribe in all fields This implies for online communication that it has to meet the requirements of the legislation in: The State from where the original electronic communication (“bits-transfer”) was prepared The State where the communication is uploaded The State of the communicator’s “nationality,” that is, for a private owned communication firm where the owner is born, or a corporate is incorporated The State where the communicator is a “citizen,” that is, for a private owned communication firm where the owner living or a corporate is having headquarter From the online communicator’s perspective, it should initially be noted that the Passive personality principle generally is rejected by the international society, thus, the communicator out of this principle does not have to follow the legislation (statutes or case law) in the state of which the receiver is a nationality. However, the online communicator might have to meet the requirement pursuant to the Objective territoriality principle that permits a State to deal with acts which originated abroad but which, at least in part, were consummated or completed within their territory (the “effect doctrine”); or producing gravely harmful consequences to the social or economic order inside their territory (the protective theory). The above mean that a State cannot interfere with what is going on, on the Internet or on the international network’s “pipe-lines” through which the electronic bits of the telecommunication is transmitted. Thus, some international entity is necessary to govern the international networks of computers. Also, it implies that each State’s legislators and enforcement has to take great consideration to other States interests.

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7. A “PURE ONLINE EXAMPLE: ONLINE NEWSPAPERS
Online newspapers32 are a good example of “pure online” incidents that have created new issues to which previous law does not fit. In many incidents, the “newspaper” is not based on subscription but rather just offering free information as everything else on the Internet. Thus, it does not have to have any (special) connection with the reader, and might achieve its revenue – if any - from advertising related to other parts of the world than that of the reader (and the State and jurisdiction of the reader).

7.1 Differences for newspapers
The time-line in the brick and mortar world for a newspaper-production was: Originally, the writer (journalist) sends manuscript to the publisher/editor The editor decides the content in every particular newspaper-issue The newspapers was delivered to a local sale booth The reader was living in publisher’s forum Later in history, distribution was extended to other states in U.S. Again later in history, distribution was extended to other Nations Every correction or update in an article has to be done by a new edition of the whole newspaper Every newspaper edition is final

As for online-newspapers, the situation is different and the following should be noted:
The writer (journalist) types directly into the newspaper and is thus a kind of publisher The newspaper is delivered to Internet The reader can be anywhere in the world (unless access required) There is no distribution besides the fact that the reader has to have an Internetconnection and a receiving-device, for example a laptop with modem or a mobile internet-phone Corrections or updates in an article can be done instantly on the edition already distributed on the Internet A online newspaper (“edition”) is constantly updated – no singular edition

7.2 Some perspectives
Online newspapers reach everyone connected to the Internet, except if the newspaper has chosen to limit access by a password etc. Thus, the issue of where the newspaper in question is published has become a big issue.33 As the purpose of the world wide web was to exchange information between anyone in the world, it does not seem right to require a online newspaper to use a password to limits its possibility to be brought into court wherever the newspaper content can be read. In the U.S., some states have for paper-issues of news papers decided to use a “Single Publication Rule” and a “Retraction Rule” in relation to liability. These rules can also be used for online newspapers and could be the solution to solve the many worldwide controversies that online newspaper cases has been brought up in courts.

32 33

See further SPANG-HANSSEN-3 supra note 2, at Chapter 5 “Online Newspapers”. Sidney Blumenthal v. Matt Drudge, 992 F.Supp. 44 (D.D.C. 1998) (Online news-bulletin with defamatory content).

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7.2.1 Single Publication Rule
A “multiple publication” rule from the English case Duke of Brunswick34 is still pursuant to Restatement (Second) Tort section 577A the starting point:35 1. Except as stated in Subsections (2) and (3), each of several communications to a third person by the same defamer is a separate publication. 2. A single communication heard at the same time by two or more third persons is a single publication. 3. Any one edition of a book or newspaper, or any one radio or television broadcast, exhibition of a motion picture or similar aggregate communication is a single publication. 4. As to any single publication, only one action for damages can be maintained; all damages suffered in all jurisdictions can be recovered in the one action; and a judgment for or against the plaintiff upon the merits of any action for damages bars any other action for damages between the same parties in all jurisdictions.

The Single Publication Rule was developed to simplify litigation by preventing multiple suits, thereby protecting the judicial system and defendants while preserving plaintiffs' rights to redress. In particular, it has been expanded to choice of law.36 7.2.2 Retraction Rule In an attempt to achieve the proper balance between the constitutionally protected guarantees of free expression and the need to protect citizens from reputational harm the National Conference of Commissioners on Uniform State Laws (NCCUSL) in 1993 drafted the “Uniform Correction or Clarification of Defamation Act.” The Act, which applies to all defamations, whether public or private, media or non-media, is based on the following considerations:37
Harm to reputation can often be cured by other than money damages. The correction or clarification of a published defamation may restore the person’s reputation more quickly and more thoroughly than a victorious conclusion to a lawsuit. Secure quick and complete vindication of his or her reputation. The Act provides publishers with a quick and cost-effective means of correcting or clarifying alleged mistakes and avoiding costly litigation. In this way, both reputational interests and rights of free expression are advanced.

The Model Act requires in broad terms:38

34 35

Duke of Brunswick v. Harmer, 117 Eng. Rep. 75, 14 Q.B. 185 (Q.B. 1849) (Eng. Queens Bench, 1849). The exception in subsection (2)-(4) of Restatement (Second) Tort section 577A is in practice equal to the wording of the Uniform Single Publication Model Act of 1952. See also, California Civ. Code § 3425. 36 Lewis v Reader’s Digest Ass., Inc. 512 P.2d 702, 704 (Mont. 1973) (The Single Publication rule is wrong in principle and in practice creates far graver problems that it solves). Firth v. State of New York, 98 N.Y.2d 365, 775 N.E.2d 463, 747 N.Y.S.2d 69, 30 Media L. Rep. 2085 (N.Y. 2002), followed by the Second Circuit in Van Buskirk v New York Times, 325 F.3d 87 (2nd Cir.)(holding that plaintiff's claim was time-barred because the single publication rule applied to a letter published on defendant newspaper’s website). 37 U.S. Uniform Correction or Clarification of Defamation Act, at <http://www.law.upenn.edu/bll/ulc/fnact99/1990s/uccda93.htm> (visited March 2006) and Prefatory Note to NCCUSL’s draft of May 1, 1994 at <http://www.law.upenn.edu/library/ulc/ulc_frame.htm> (visited October 2004). 38 California’s Civil Code § 48a on Libel in newspaper; slander by radio broadcast.

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The injured person must make a request for correction or clarification of a specified statement within 90 days after knowledge of the publication – or he may only recover provable economic loss. If a sufficient correction or clarification is made within 45 days the injured person may recover only provable economic loss, as mitigated by the correction or clarification The correction or clarification has to be published with a prominence and in a manner and medium reasonably likely to reach substantially the same audience as the publication complained of – with a copy to the person that made the request.

7.3 Some newspaper cases with foreign aspects
Choice of law or conflicts of law will not be discussed in the following, as there exist different approaches in each nation’s choice of law-conflict of law rules. Generally, the Continental thinking about adjudicatory jurisdiction stresses indirect affiliations between the parties and the forum that arise from the underlying controversy; whereas the traditional Anglo-American thinking about adjudicatory jurisdiction has concentrated on direct affiliations - in particular, presence and domicile between the parties and the forum; thus, these notions tend to dissociate jurisdiction and choice of law.39

7.3.1. Malaysia A very special matter occurred in a Malaysian case. The Malaysian court refused to deal with a defamatory statement in a Singapore newspaper also available on Internet. The alleged libel, published in the Strait Times and the Business Times, was printed and for publication and sale in Singapore, and also published in an online version. The courts refusal was based on the fact that neither the paper version nor the online version as required by Malaysian law was authorized to be imported, sold, circulated or distributed in Malaysia. The court held that even if persons in Malaysia had access and read the online version such access had not been allowed by Malaysia. Thus, the statement was not regarded as published in Malaysia, there could not be committed a tort in Malaysia.40 7.3.2. Canada A lower Canadian court in 200441 refused to dismiss on lack of jurisdiction a case involving American Washington Post since a defamatory42 statement was available in Canada through the Internet. In 1997, when Guinean-born and Guinean national Cheickh Bangoura worked for the United Nations in Kenya, the Washington Post published two articles relating to Bangoura’s conduct in a previous UN posting on the Ivory Coast. The newspaper had no wholesale distribution in Canada43 and had only seven paid subscribers in Ontario. The articles were

39 40

SPANG-HANSSEN-2 supra note 3, 445. Lee Teck Chee v. Merrill Lynch International Bank Ltd., [1998] 4 CLJ 188 (High Court Lalaya, Kuala Lumpur (Malaysia), 26 February 1998 - Civil No. S2-23-51-1997). 41 Cheickh Bangoura v. Washington Post, 2004 CarswellOnt 340, 2004 WL 95104, 2004 A.C.W.S.J. LEXIS 307, 2004 A.C.W.S.J. 1383, 128 A.C.W.S. (3d) 478 (Ontario Superior Court of Justice, January 27 2004) 42 Cheickh Bangoura v. Washington Post, 2005 CarswellOnt 4343 paras 18 (Ontario court of Appeal, September 16 2005). 43 2004 CarswellOnt 340.

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freely available online for 14 days after publication, but thereafter only accessible through a paid archive.44 Six years after publication, and almost three years after moving from Africa to the Canada as an immigrant in 1997, Bangoura raised proceedings in an Ontario court against both the newspaper and three of its reporters, seeking an injunction, a retraction and $10 million in damages. He became a Canadian citizen in 2001 and had the last two years lived in Ontario where he now worked.45 In January 2004, Ontario's Superior Court of Justice ruled that it had jurisdiction to hear the case. Washington Post’s main argument was the case “New York Times Co. v. Sullivan, 376 U.S. 254 (1964) where the U.S. Supreme Court refused to enforce a British libel-judgments on the ground that British libel law is repugnant to the policies of the U.S.A.”46 The lower Canadian court pointed out that it did “not share the American view that British libel law, which is similar to our own, is any less civilized than the American law, See Hill v. Church of Scientology, [1995] 2.S.C.R. 1130 at 1187-88, Cory J. The Supreme Court of Victoria (Australia) does not share the American view either.” The court largely quoted from the Australian case, which is mentioned below under Australia. It noted that in the context of allegedly false and injurious communications over the Internet, the location of the plaintiff is a key factor that receives greater weight than other factors. This is the case because damage to the reputation and actual pecuniary loss is the key element in such an action, and a plaintiff will experience damages most keenly in the jurisdiction in which they reside.47 In addition, it remarked that the Washington Post defendant’s home jurisdiction’s unwillingness to enforce such an order is not determinative of whether the court should assume jurisdiction.48 The newspaper and its reporters appealed. The Ontario Court of Appeal unanimously reversed and held Ontario courts did not have jurisdiction to hear the case.49 The court distinguished the circumstances from those of Joseph Gutnick who raised a claim in Australia over a US publication. Gutnick was a well-known businessman who resided in Victoria at the time of the impugned publication…and there was evidence that Barron’s had some 1,700 Internet subscribers in Australia. Gutnick undertook that he would sue only in Victoria and only in respect of damages to his reputation in that state.50 The Canadian Appeal court held that the connection between Bangoura’s claim and Ontario was “minimal at best”,51 and there was no evidence that Bangoura had suffered significant damages in the province.52 Furthermore, it was not reasonably foreseeable in January 1997 that Mr. Bangoura would end up as a resident of Ontario three years later. To hold otherwise would mean that a defendant could be sued almost anywhere in the world
44 45

2005 CarswellOnt 4343 paras 1 and 11. 2004 CarswellOnt 340 para 7-8. 46 2004 CarswellOnt 340 para 21 at (8). 47 2004 CarswellOnt 340 para 22 at (f). 48 2004 CarswellOnt 340 para 23. 49 2005 CarswellOnt 4343 para 46. 50 2005 CarswellOnt 4343 paras 43-44. 51 2005 CarswellOnt 4343 para 22. 52 2005 CarswellOnt 4343 para 23.

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based upon where a plaintiff may decide to establish his or her residence long after the publication of the defamation.53 Furthermore was noted, that there was no evidence that the Washington Post had insurance coverage in Ontario.54 The courts pointed out, that where the case is international in nature, rather than interprovincial, it is more difficult to justify the assumption of jurisdiction.55 On February 16, 2006, the Supreme Court of Canada refused leave to appeal.56 7.3.3. United Kingdom The US Single publication rules has no support in English law57 since the rule is contrary to the long established principle of English libel law that each publication is a separate tort. An English court has noted that each “hit” on an online archive of previous published material effectively amounts to a republication, and the limitation period runs from the time the material was accessed.58 “Moreover, the rule is inconsistent with the policy underlying the acceptance by the European Court of Justice in” Shevill. This court stated that an Internet publication takes place in each country in which the material is downloaded, irrespective of where the server is based.59 The House of Lords in Berezosky v. Forbes noted about an on-line version of a magazine on the Internet and the jurisdiction that there was not the necessary evidence before the House to consider this important issue satisfactorily. Thus, the availability of the article on the Internet was, opposite the lower court,60 not discussed.61 In Don King62 the High Court noted that “it has long been recognized that publication is regarded as taking place where the defamatory words are published in the sense of being heard or read…by analogy, the common law currently regards the publication of an Internet posting as taking place when it is down-loaded.” The case dealt with a “trans-national libel”63 in stories published on two American websites. All parties were Americans and it was noted that an equal action in a New York court would not have been possible because of New York law on public figures. Defendant argued plaintiff was forum shopping. The English Court of
2005 CarswellOnt 4343 para 25. 2005 CarswellOnt 4343 para 27. 55 2005 CarswellOnt 4343 para 35. 56 Cheickh Bangoura v. Washington Post, 2006 CarswellOnt 932 (Supreme Court of Canada, February 16, 2006 – Docket 21203). 57 Berezosky v. Michaels & Berezosky v. Forbes, [2000] E.M.L.R. 643, 653, [2000] 2 All ER 986, [2000] 1 WLR 1004, 2000 WL 544123 (House of Lords, May 2000) and Loutchansky v. The Times Newspapers Ltd., [2001] EWCA Civ 1805 para 72, 2002] 1 All ER 652, <http:// www.bailii.org/ew/cases /EWCA/Civ/2001/1805.html> (England and Wales Court of Appeal, 5th December 2001) (newspapers placed in an online archive). 58 Loutchansky v. The Times Newspapers Ltd. At 74-75. 59 Shevill v. Presse Alliance SA, [1995] 2 A.C. 18, 1995 E.C.R. I-415, [1995] E.M.L.R. 543, (E.C.J. Case C-68/93, 1995) & LAW COMMISSION, DEFAMATION AND THE INTERNET 21, 27-39 (UK, December 2002) <http://www.lawcom.gov.uk/239.htm#1lcr266 (visited October 2003) or <http://www.lawcom.gov.uk/files/defamation2.pdf>. 60 Berezovsky v. Forbes Inc., [1999] I.L.Pr. 358 para 37, 1998 WL 1043805, [1999] E.M.L.R. 278, (English Court of Appeal, 1998). 61 Berezosky v. Michaels & Berezosky v. Forbes, [2000] E.M.L.R. 643, 657. 62 Don King v. Lennox Lewis, Lion Promotions, L.L.C. & Judd Burstein, [2004] EWHC 168 para 15, 2004 WL 62126 (High Court of Justice Queen's Bench Division 6 February 2004) affirmed by Court of Appeal (Civil Division) in [2004] EWCA Civ1329 (19. October 2004). 63 [2004] EWCA Civ1329 para 28.
54 53

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Appeals noted that it “makes little sense to distinguish between one jurisdiction and another in order to decide which the defendant has “target”, when in truth he has “target” every jurisdiction were his text may be downloaded.”64 It held England was an “appropriate” forum. The same High Court in Schwarzenegger65 asserted jurisdiction over an Internet libel suit launched against California Governor Arnold Schwarzenegger. The suit arose from an article in the LA Times available online that discussed an alleged sexual harassment. The court applied the Don King decision in determining that an “internet publication takes place in any jurisdiction where the relevant words are read or downloaded.” Plaintiff, a Hollywood publicist, had limited her claim to publication happening in England and Wales. Justice Gray of the High Court in Amoudi v. Bristard66 held that he was “unable to accept that under English law a claimant in a libel action on an Internet publication is entitled to rely on a presumption of law that there has been substantial publication.”67 Rather, a count of the readers should be made before suing for internet libel in England. He relied on the case Jameel v. Dow Jones,68 which struck down a libel-claim on the ground that the extent of the publication within the jurisdiction was minimal and did not amount to a real and substantial tort. The House of Lords have heard the later case on appeal on 26 June 2006.69 7.3.4. Australia In the Australian case Gutnick v. Down Jones, a case dealing with issues of the single publication rule, jurisdiction and choice of law, the lower court rightly pointed out that “this is a subscription website,”70 thus a website made for gaining profit. The court noted that the “case is not concerned with the world wide web because Dow Jones only puts it on for subscribers or trial subscribers.”71 That puts the case with respect of the personal jurisdiction question into the group of US Cyberspace cases, where defendant is doing business in the forum. Thus, this was not a case concerning the free Internet, as it does not dealt with the issue of a “publisher” that acts as an intermediary for third person who makes the defamatory statement. Neither does the case deal with the issue of a “publisher” being sued by a person, who is not the “target” for the defamatory statement.72
Id. para 34. Anna Richardson v. Arnold Schwarzenegger, Sean Walsh and Sheryl Main [2004] EWHC 2422 (High Court, Queens Bench Division, October 29 2004 – case no. HQ04X01371). See also, Case Comment: Arnold Schwarzenegger Case not Terminated, ENTERTAINMENT LAW REVIEW 2005, Ent. L.R. 2005, 16(6), 156-158. 66 Mohammed Hussein al Amoudi v. (1) Jean Charles Brisard & (2) JCB Consulting International Sarl, [2006] EWHC 1062 (England and Wales High Court (Queen's Bench Division – Justice Gray), 12 May 2006) also at <http://www.bailii.org/ew/cases/EWHC/QB/2006/1062.html>. 67 Id. at 37. 68 Yousef Abdul Latif Jameel v Dow Jones & Co Inc., [2005] 2 WLR 1614, [2005] Q.B. 946, [2005] E.M.L.R. 16, [2005] EWCA Civ 75 (Court of Appeal, 3 February 2005). 69 Frances Gibb, Law lords to rule on internet defamation, TIMES ONLINE, 26 June 2006 at <http://www.timesonline.co.uk/article/0,,200-2243300,00.html>. 70 Gutnick v. Dow Jones & Co, Inc, [2001] VSC 305 para 14, 2001 WL 966287 (Supreme Court of Victoria (Australia) Aug, 2001 - NO. 7763 of 2000) at <www.austlii.edu.au/au/cases/vic/VSC/2001/305.htm> (visited August 29, 2001). 71 Id. para 41. 72 Spang-Hanssen to “Net defamation” in Australian IT, August 29, 2001 at <http://australianit.news.com.au/common/story-PAGE/0,3811,%202783041% 255E506,00.html> (visited September 2001).
65 64

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Rather, the case dealt with the question of where the tort of defamation is committed if the place in which the publisher acts and the place in which the publication is presented in comprehensible form are in two different jurisdictions. Australia’s highest court73 - in a unanimous decision - found “[i]n the case of material on the World Wide Web, it is not available in comprehensible form until downloaded on to the computer of a person who has used a web browser to pull the material from the web server. [Further, i]t is where that person downloads the material that the damage to reputation may be done. Ordinarily then, that will be the place where the tort of defamation is committed.”74 Australia’s highest court75 unanimous rejected the U.S. “single publication” rule and noted this rule said “nothing about the question of jurisdiction.”76 It pointed out that the U.S. Single Publication Rule had extended from a time limiting rule to be also a rule of choice of law, which was not acceptable77 amongst others because tort law might be different in different States or territories.78 The court noted that defamation is to be located at the place where the damage to reputation occurs.79 The court noted that those who make information accessible by a particular method do so knowing of the reach that their information may have: “In particular, those who post information on the World Wide Web do so knowing that the information they make available is available to all and sundry without any geographic restriction.”80 In a concurring judgment, Justice Callinan stated: “A publisher, particularly one carrying on the business of publishing, does not act to put matter on the Internet for it to reach a small target. It is its ubiquity which is one of the main attractions to users of it... Publishers are not obliged to publish on the Internet. If the potential reach is uncontrollable then the greater the need to exercise care in publication.”81 This does not mean that publishers will be faced with uncertainty and the possibility of being sued in any jurisdiction in the world for each publication. The court noted, “[t]hose who would seek to order their affairs in a way that will minimize the chance of being sued for defamation must be able to be confident in predicting what law will govern their conduct. But, certainty does not necessarily mean singularity. What is important is that publishers can act with confidence, not that they be able to act according to a single legal system, even if that system might, in some sense, be described as their "home" legal system.”82

Dow Jones v. Gutnick,[2002] HCA 56 paras 28, 42 & 44, 42 I.L.M. 41, 2002 WL 31743880, 210 CLR 575, 194 ALR 433, 77 ALJR 255, [2003] AIPC 91-842 (High Court of Australia, 10 December 2002 - No. M3/2002) <http:// www.austlii.edu.au/au/cases/cth/high_ct/2002/56.html> (visited 10 December 2002). In a out-of-court settlement of November 2004, Gutnick was awarded $180,000 and in cost $400,000, Gutnick ‘delight’ on defamation deal, THE AUSTRALIAN, November 12, 2004 at <http://www.theaustralian.news.com.au/common/story_page/0,5744,11365187%255E1702,00.html> (visited November 15, 2004). 74 Id. para 44. 75 Id. at para 28, 42 & 44. 76 Id. at para 36. 77 Id. at para 32. 78 Id. at para 37. 79 Id. at para 44. 80 Id. at para 39. 81 Id. at paras 181-182. 82 Id. at para 24.

73

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7.3.5. Germany The Landgericht Hamburg ruled on 5 December 2005 that German newspaper Heise Online was immediately liable for reader comments and ordered the online newspaper to prevent publishing reader comments by first previewing all comments.83 This order was a follow up on a previous order in Universal v. Heise.84 This is contrary to a previous decision from the German Supreme Court [Bundesgerichtshof (BGH)] in Karlsruhe, which has held that providers can only be held liable if there were reasonable ways of reviewing the content. 7.3.6. United States In Dow Jones v. Harrods,85 the owner of American Wall Street Journal tried to avoid a potential libel lawsuit in United Kingdom based on alleged damaging content from a newspaper article that was also made available on the Journal’s website to which subscribers had access. After London based Harrods had brought suit in English court, Dow Jones amended its complaint in the New York court to seek an anti-suit injunction barring Harrods from suing in the U.K. Harrods moved for dismissal in the US court. The Second Circuit affirmed the districts courts holding that:
1. the action was non-justifiable because it was not ripe for adjudication; 2. there was no “actual controversy” as required by the Declaratory Judgment Act, 28 U.S.C. 2201; and 3. the court would decline to exercise its jurisdiction to hear the case under the Act on the grounds that no useful purpose would be served by a declaration and that principles of international comity would be violated.

8. HOW TO ACHIEVE A JUST WORLD UNDER PUBLIC INTERNATIONAL LAW FOR NEWSPAPERS IN CYBERSPACE
Publishers should not be responsible for content that is not published online by them, but rather by readers as comments on published articles. Such unedited comments should be regarded as nothing more than notes on a bulletin board. Neither should publishers be responsible for content that still exists online even though the publisher has withdrawn the content from his server(s), be it “illegal copies” of content published by a third-party for the purpose of doing business (getting profit) or copies on fortuitous proxy-servers - the later type of copy exists only of computer network technical administration reasons.86 The newspaper’s decision of which States (citizens) it wants to sell to (online) - and thus invoking the benefits and protections of the laws of the forum state87 - should be the only determinative as to whether an online newspaper could be held liable in the court forum in

83 84

HEISE ONLINE NEWS of 6 December 2005 <http://www.heise.de/english/newsticker/news/67029>. Universal Boards GmbH & Co. KG. v. Heise Zeitschriften Verlag GmhH & Co. KG (Landgericht Hamburg, 20. September 2005 (Zivilkammer 24) – Docket No. 324 O 721/05) at <http://www.buskeismus.de/urteile/324O72105_dolzer-vs-heise.pdf> (visited March 2006). 85 Dow Jones v. Harrods, 346 F.3d 357 (2nd Cir. Oct 2003). 86 SPANG-HANSSEN-2 supra note 3, at 358. 87 Hasbro, Inc. v. Clue Computing, Inc., 994 F.Supp 34, 42 (D.Mass. 1997)(The application of the principles of Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 104 S.Ct. 1473 (U.S. 1984) to Internet cases requires refinement. For while magazine publishers can affirmatively decide not to sell or distribute magazines in certain forums, this option of bypassing particular regions is not yet available to Website providers)

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question for a statement or content that the publisher has edited. A newspaper may have had good and legitimate reasons for not wishing to trade in a particular State.88 Furthermore, as many “events” are happening in the Cyberspace cloud89 in form of websites it should also be appropriate at this place to deal with questions of content on and architecture of websites. 90 As online newspapers use the public international computer network that consists of several physical hardware one could argue that the location the by a newspaper used hardware should be determinative for allowing exercise of jurisdiction over the particular online newspaper. However, in the manner the Internet protocol is constructed, this would imply any court in the world to have jurisdiction as the communication between the online newspaper and the reader could go through “pipelines” (hardware) all over the world. Furthermore, as explained above public international law requires a court to be able to pinpoint the necessary closeness between an alien online newspaper and the forum of the court in question.91 The place of the server hosting a newspaper website should not determine the question of jurisdiction for several reasons.92 For example, some services providers like America Online, one of the biggest Internet Service Providers, is registered in Virginia and has its main server placed there. Thus, no matter where AOL’s subscribers are located, their online content will be registered in Virginia in the United States.93 Second, many websites are uploaded on servers far from where the author may be located.94 Often it is only a copy of the actual edition of the website placed on a fortuitous
Michael Akehurst, Jurisdiction in International Law, 46 BRIT.Y.INT’L (1972-73) 145, 200. In this “cloud” is already living so-called electronic agents that can help people with housekeeping, shopping, order time for carrepair, automatically buy items on auctions from everywhere in the world etc. without the user actually being aware of what is actually happening. 90 On Cyberspace and jurisdiction over aliens, see SPANG-HANSSEN-1 supra note 3, at 157 and 227-255. As of January 2001 the only pure on-line business US case involving an alien were Quokka Sport, Inc. v. Cup International Ltd., 99 F.Supp.2d 1105 (N.D.Cal. 1999)(before the U.S. Anticybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d), came into force). 91 SPANG-HANSSEN-2 supra note 3, at 359-360. 92 Court experts’ opinion page 67 in Rapport de Consultation in the French Yahoo case at <http://www.lawlinks.ch/archiv00.html file rapportyahoo-6nov00.zip> (last visited May 2003). 93 In Texaco, Inc. v. AOL, 2000 WL 511732 (Va.Cir. Ct. 2000) the court noted “[t]his Court has previously ruled [ ] that a Virginia Court does not acquire jurisdiction merely because an actionable email passed through AOL’s facilities in Loudoun County, Virginia.” Otherwise, United States v. Kammersell, 7 F.Suppp.2d 1196 (D.Utah 1998), affirmed by, 196 F.3d 1137 (10th Cir. 1999), cert. denied by Kammersell v. United States, 120 S.Ct. 2664 (U.S. 2000) where the court could not have reached is decision if it had not held the service providers server to be outside the state and having functioned as a rerouting server. Defendant had target a computer inside his own state. The statute in question required communication had occurred over state borders. 94 In a situation where the computers or servers that hosted the e-commerce websites "peepers.com" and "peepers2000.com." with infringing trademark were located in New York, the physical location of the website servers was held not dispositive. The crucial infringing place was where the purchase was, at least partially, consummated, American Eyewear, Inc. v. Peeper's Sunglasses and Accessories, Inc., 106 F.Supp.2d 895 (N.D.Tex. 2000). In TY, Inc. v. Clark, 2000 WL 51816 (N.D.Ill. 2000) the court neglected the plaintiff’s argument that defendants site was located in the State of California. British defendants' Internet website "beaniebabiesuk.com" was hosted by the Internet service provider, Simple Network Communications, Inc. ("SimpleNet"), a California corporation located in San Diego. Internet users seeking access to defendant’s website would be directed to two domain name servers operated by SimpleNet in San Diego, California. In Thompson v. Handa-Lopez, 998 F.Supp. 738 (W.D.Texas 1998) the website was placed on a server in California, where the defendant was also located, yet the court in Texas did not give this fact any attention.
89 88

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server that the plaintiff actually sees. Of technical re-routing reasons, the server with the copy might even be far more off from the website-owner than the server with the original.95 The website may also be build from different portions stored on various servers around the world to be assembled when a user wants to see different pages of the website. One can hope the reasoning of the Appeal Court of Ontario in Bangoura96 will be followed by other courts in the world. It seems more than reasonable that a court rejects a case on lack of jurisdiction, if the defendant was not a resident or national in the forum of the court at time the defamatory content (first) was published. This will prevent plaintiff’s forum shopping as in the English Don King and Schwarzenegger cases.97 Also, it seems reasonable, as in the Amoudi case, that a court furthermore require evidence of a count of the readers has been made by the plaintiff before suing for Internet libel and that there is evidence in the forum in question that the extent of the publication within the jurisdiction is more than minimal and amount to a real and substantial tort.98 As the content in an online newspaper changes constantly and never can become said to be a certain edition opposite a paper version, it seems fair and required in relation to online newspapers to make limitations of their liability in other ways that for paper versions. The U.S. Single Publication Rule seems to be a sensible solution. It would solve the online newspaper’s problem that what is uploaded to the Internet is accessible anywhere in the world and that an online newspaper never has a certain edition. From a claimant’s point of view, a Single Publication Rule does neither seem to be a very unreasonable solution, as it is in the interest of cybernaut-readers – including a potential claimant - to get free access to most possible online newspaper articles in the world without a password (which would be on of the best ways for a online newspaper to otherwise limit its liability. However, password-requirement would serious decrease access to vital – now free information for cybernauts). As the content of an online newspaper article is in practice nearly impossible to remove from all the servers and computers in the world, a Retraction Rule also seems to be a sensible solution. Articles in online newspapers exist on the Internet nearly always in the latest updated version. Thus, if an online newspaper is required to retract something it will be possible to update the article together with a retraction-text decided by a court. This possibility is even better than that a claimant can get in the paper version environment. For the online newspaper, it is an easy and practical way to revoke a libel and it is effective for the claimant. Both the Single Publication rule and the Retraction Rule seem to meet the basis requirement of reasonableness in public international law. With such rules, online newspapers could get a just world under public international law.

“Cached websites” – On line service provider’s store copies of third parties websites on their own servers in order to facilitate efficient access to such information by subscribers. Such “cached” websites are automatically and frequently updated to ensure that the user is viewing an accurate copy of the original. “Proxy caching” – automatic storage of web pages on a service provider’s server triggered by a subscriber’s initial access of such pages. 96 See above footnote 42. 97 See above footnote 62 and 65. 98 See above footnote 66 and 68.

95

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