AIMAN NOMAN SEM 7 CYBER LAWS:

DETERMINING JURISDICTION IN THE CYBERSPACE THE ZIPPO TEST OR

THE EFFECTS TEST: LECTURE 4

Cyberspace has always faced one major problem of jurisdiction which means that which
particular state will have the authority to adjudicate a matter in cyberspacetry an individual
who committed a crime in cyberspace. According to the author the 3 main principles to
establish jurisdiction under international law over the non-residents is that the state must have
jurisdiction to prescribe where they have the authority to make the laws governing such
activities. Secondly, they must have jurisdiction to adjudicate which means that the courts
will have the authority to try the individual and lastly jurisdiction to enforce which is quite
clear through the words that courts can enforce their decisions on the non-residents.
Moreover, two main jurisdiction tests are used in the USA including the Zippo Test and the
Effects test. The Zippo test bases its jurisdiction on the level of interactivity between the
website and the forum. There were three levels designed to measure the websites including
passive, integral and interactivity. This test was developed by the famous case of Zippo Mfg.
Co. v Zippo Dot Com. Inc. While on the other hand the Effects test was established under the
case of Calder v Jones where the Florida residents published a defamatory article against an
Actress in California. The magazine where the article was published had a great influence in
California and was based on Californian sources. Thus, the court decided that jurisdiction lies
with the court in California because according to the effects test the courts must be of the
view that which state suffered the most harm because of the act. Thus, it was proved that the
effect of the harm was seen in the state of California. Later with time, the effects test evolved
and included the element of malicious intent which was seen in the case of Edias Software
Intern v Basic Intern LTD, 947 F.Supp 1996. The evolution of the effects tests also
established that the test will be particularly used in non-commercial activities, defamation
cases and trademark infringements.
Towards the end the author mentions the famous Yahoo case which established the principle
of comity where US could have enforced the decision of the French court ( showing personal
jurisdiction on the basis of effects test) by mutual consent with the state of France but as the
judgements itself was against the public policy and constitution of US thus having no legal
effects and the court rendered the judgment in favour of Yahoo.
In conclusion the above-mentioned tests are one of the ways to lessen the problem of
jurisdiction but not completely finish. Sometimes these tests are of no value and judgments
based on these tests are rejected if the issue is of more importance including the violation of
the national security of another country thus jurisdiction lies with the other party.