Traditional Jurisdictional Laws

In the internet age communications giving rise to a civil complaint can be posted in one jurisdiction and received in several different jurisdictions simultaneously. This possibility gives rise to jurisdictional conflicts to such an extent that academics argue that traditional jurisdictional laws are inadequate. The difficulty arises in determining the convenient forum as well as the applicable law.

These issues were considered by the High Court of Australia in Dow Jones v Gutnick [2002] HCA 56 which essentially ruled that resolving these jurisdictional conflicts may be best served by focusing on the person who is allegedly injured by the communication. The goal is to identify the jurisdiction with which that person has its closest and most real connection and as such would be the convenient forum for the adjudication of the matter. In essence the traditional approach is preferred, but on a narrow basis.

In a typical case with different jurisdictions, the determining factor has always been the place where the parties have their closest and most real connection. All things considered, the traditional approach to jurisdiction is the most practical since focusing too broadly on all possible jurisdictions that can apply to an internet civil complaint will only serve to complicate matters with the result that no clear jurisdictional rule can be isolated. The logical result is a state of lawlessness.

The discussion that follows examines the merits of the High Court of Australia’s ruling and argues that despite its weaknesses it is the most practical and effective method for determining jurisdiction over internet communications giving rise to a civil complaint. In order to fully appreciate the merits of the High Court of Australia’s decision in Dow Jones v Gutnick [2002] HCA 56 it is necessary to provide some basic background information with respect to traditional jurisdiction laws.

Dr. Dale Pinto defines jurisdiction as “a state’s right of regulation” which invariably relates to its judiciary, “administration” and its “legislative competence. ”   Since jurisdiction is intricately tied to sovereignty, it is limited by both the internal and external powers of the state. In other words the state is bound by its own internal constitution and by the application of international law.

Under traditional laws of jurisdiction, jurisdiction is usually determined by reference to either a “territorial or personal” element. The personal element refers to a party’s domicile functioning as the place with which the matter has its closest and most real connection. The territorial element is the term used to refer to: “... regulation over persons and things within the geographical boundaries of  a state. ”

The territorial element of traditional jurisdiction often dictates that the place where the alleged wrong was committed has jurisdiction over the matter. Dr. Dale Pinto submits that territorial jurisdiction is most frequently used to establish jurisdiction. Fritz Mann explains that territorial jurisdiction proceeds on the assumption that every sovereign nation has jurisdiction over all matters within its borders. Moreover, no state can pass laws that effectively bind persons outside of its territory.

Having regard to the traditional rules used for the determination of jurisdiction when there is a conflict of laws, geography appears to be very important. Territorial Jurisdiction in the New World Although new initiatives in globalization seek to remove territorial boundaries for the purpose of facilitating trans-border commercial transactions,  the internet has in fact accomplished this goal, whether intentionally or not. As the US Supreme Court adequately put it in Reno v ACLU, 117 S. Ct.

2329, 2334-35 (1997), the internet has created: “... a unique medium – known to its users as ‘cyberspace’ – located in particular geographical location but available to anyone , anywhere in the world. ” The dynamics of cyberspace functions to remove territorial borders to the extent that traditional laws of jurisdiction are now far more multifaceted than ever before. In a typical case where one party publishes a defamatory statement in one country it can be read in every country in the world at the same time.

The result is that the tort of defamation takes place in every territory in the world and this is the basis for arguments against using the traditional application of jurisdictional theories. The fact is, each of those countries should have jurisdiction since the defamation occurs in the place where it is published as well as where it is circulated. Taking this approach, traditional laws of jurisdiction appear to be impractical in such a scenario and the High Court of Australia considered the consequences in Dow Jones v Gutnick [2002] HCA 56.

In the interest of justice and fairness to the defendant it would be mammoth task doomed for failure should he be forced to defend multi-law suits in virtually every sovereign state in the world. The key is to narrow the approach taken to traditional rules of jurisdiction so as to eliminate the possibility that all jurisdictions in which the internet is available will have locus standi. This is essentially the position taken by the High Court of Australia in Dow Jones v Gutnick [2002] HCA 56.