Electronic Mail and Online Presence Rules of private international law-T

Week 11 Electronic Mail and Online Presence Rules of private international law-The borderless nature of the internet often hides the origin of particular websites. Questions arise as to the country whose courts have jurisdiction to hear the merits of a lawsuit and which law to apply. Typically, the parties to an international contract will specifically identify the law which applies to the contract. The parties may also identify the law which applies to the contract. The parties may also identify which country’s courts have jurisdiction to hear disputes arising under the contract. Contractually, parties may include an express choice of law clause or provision under the principle of party autonomy. However, there are exceptions. Where there is NO express choice of law the courts will attempt to find an implication of choice from the language of the documents, the prior conduct of parties, the place of performance and other surrounding circumstances. Where there is no express choice one cannot be implied, the contract will be governed by the law of the jurisdiction most closely connected to the contract. This may depend upon the subject matter, nationality or domicile of the parties, the place of performance and other factors. Once the proper law is determined, the rules of that system of law are applied to the contract. Forum non conveniens-The issue of choice of forum in which to hear an action is known as forum non conveniens. Each nation determines its own laws and procedures. These laws are termed LEX FORI or the law of the FORUM. Each nation’s court system must determine, through its own civil procedure, when and how it should accept jurisdiction. It will take into account numerous factors, such as residence and nationality of the parties, the place or places of business, and the subject matter when the lawsuit begins. Often the issue is routine and uncontroversial but where one or more of the parties reside outside the nation state or the subject matter of harm occurs elsewhere the question of jurisdiction must be settled. The English approach to determining the forum, recognized by most common law jurisdictions, is the test of the clearly more appropriate forum. Down Jones v. Gutnickow Jones & Co. v. Gutnick case brief summary Dow Jones & Co. v. Gutnick case brief summary Facts: Dow Jones operates WSJ.com, wherein it published an article that Gutnick claims defamed him. Holding: Jurisdiction is proper in the forum in which the injury was sustained. Reasoning: What jurisdiction’s laws should apply? Dow Jones has its editorial offices for WSJ.com in the city of New York. Material for publication, once it is prepared by its author, is transferred to a computer located in New Jersey. Dow Jones argued that it should be rightfully held to the jurisdiction of where it published the material. If the alternative was held proper, a published would be bound to take account of the law of every country on earth (and effectively bind itself and its actions to the most restrictive of all legal regimes so as to avoid liability). “There is obvious force in pointing to the need for the published to be able to identify, in advance, by what law of defamation the publication may be judged.” BUT, however broad may be the reach of any particular means of communication, 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 internet do so knowing that the information they make available is available to all without any geographic restriction. Moreover, the fear that publishers will be subject to every law in the world is unreal when it is recalled that in all except the most unusual cases, identifying the person about whom material is to be published will readily identify the defamation law to which that person may resort. Where a person or corporation published material which is potentially defamatory to another, to ask the published to be cognizant of the defamation laws of the place where the person resides and has a reputation is not to impose on the publisher an excessive burden. Alternatively, publishers are not obliged to publish on the internet at all if the potential reach is uncontrollable than the greater need to exercise care in publication. Defamation is a tort concerned with damage to reputation and it is that damage which founds the cause of action. Thus, defamation is to be located at the place where the damage to reputation occurs. Ordinarily, that will be where the material which is alleged to be defamatory is available in comprehensive form, assuming that the person defamed has in that place a reputation which is thereby damaged. Merely creating and making the material available is insufficient; the material has to be accessed or communicated in a jurisdiction where the plaintiff has a reputation. Effects Test-Calder v. Jones-The US Supreme Court held that California was the focal point both of the story and of the harm suffered. This joint target and harm criteria is referred to as the effects test. The Supreme Court elaborated an “effects test” for finding specific in personam jurisdiction based on intentional aiming of harmful conduct at a forum State, albeit by actors outside the State with few or no other jurisdictionally-relevant links to the forum. RULE: The Due Process Clause of the Fourteenth Amendment to the United States Constitution permits personal jurisdiction over a defendant in any state with which the defendant has certain minimum contacts such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. FACTS: The California resident brought a libel action against a national magazine based in Florida and against its reporter and magazine’s editor, individually. Both reporter and magazine’s editor were served by mail in Florida. They both moved to quash service for lack of personal jurisdiction. The lower court granted the motion. On appeal, the state appellate court reversed the lower court order and found jurisdiction. The case was elevated to the Supreme Court of the United States on appeal. ISSUE: Can California exercise jurisdiction over the case? ANSWER: Yes. CONCLUSION: The Supreme Court held that jurisdiction was proper based upon the effects of their intentional conduct in California. Respondent’s career was centered in California, the article was drawn from California sources, and the harm was suffered in California. The Supreme Court noted that petitioners were not charged with untargeted negligence, but rather their intentional, and allegedly tortious, actions were expressly aimed at California, and under the circumstances, petitioners must have reasonably anticipated being sued there. The Supreme Court held that petitioners’ status as employees did not shield them from jurisdiction, because their individual contacts with California were sufficient. Early US Experience-In the United States, to determine personal jurisdiction, it is sufficient if the defendant PURPOSEFULLY AVAILED itself of the jurisdiction such as by repeatedly conducting business there. US courts are required to use DUE PROCESS under the 14th Amendment to the US Constitution. In International Shoe Co. v. Washington, the US Supreme Court held that due process requires the defendant to have MINIMUM CONTACTS WITH THE PLAINTIFF’s jurisdiction and prescribes that the choice of jurisdiction be consistent with TRADITIONAL NOTIONS OF FAIR PLAY AND SUBSTANTIAL JUSTICE. The PURPOSEFUL AVAILMENT requirement ensures that random and fortuitous contacts DO NOT cause a defendant to be improperly brought into a FORUM. The FAIR PLAY requirement permits the court to examine whether the defendant’s acts or their consequences have sufficient connection with the state to make jurisdiction reasonable. The courts distinguish between passive and active websites. Passive sites merely display information. Active websites may provide for form filing, and for contracting online, or may simply provide an email link. In Zippo Manufacturing Co. v. Zippo Dot Com Inc. the court formulated a sliding scale approach which has since been generally ADOPTED. For example, at the end of the scale are situations where a defendant has simply posted information on an Internet Website which is accessible to users in foreign countries. A passive website that does little more than make information available to those who are interested in it is not grounds for the exercise of PERSONAL JURISDICTION. Alternative Approaches-The ZIPPO CASE INTERACTIVITY TEST-the court will accept personal jurisdiction where the defendant (1) directs electronic activity into the State where the court is (2) with the manifested and clear intent of engaging in business or other interactions within the state and (3) that activity creates a potential cause of action lawsuit to be addressed within that particular state. Universal Rights-The United States and other nations are signatories to the UN International Covenant on Civil and Political Rights (ICCPR). Courts must uphold the right to freedom of speech and freedom of expression as enunciated in Article 19 of the ICCPR which states that everyone shall have the right to hold opinion without interference. Article 17 of the UN International Covenant on Civil and Political Rights (ICCPR) states that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honor and reputation. Single Publication Rule-Most countries have adopted a single publication rule which treats all sales of a defamatory book or newspaper as a single publication. The time of the single publication download is FIXED AS THE TIME of the first publication. BUT in the United Kingdom and Australia EACH publication gives rise to a separate cause of action. Substantial publication-Jurisdiction was not taken by the English courts unless there is a substantial publication in that country in order to damage the plaintiff’s reputation. • • • • • Identify one issue from the weekly reading and create a Legal Issue Brief. In a Word document, compose a one-page legal brief that follows the order indicated below: Title (Issue summarized in 2-5 words) Student Name Issue (1-3 sentences) • • • Facts (3-4 sentences) Student position (2-4 sentences) Rationale (5-7 sentences) …
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