New Jersey Law Journal -- JANUARY 1, 2007

INTERNATIONAL INTERNET LAW --- JURISDICTIONAL BATTLES ARISE IN THE QUEST TO TAME THE INTERNET

By Jonathan Bick -- Bick is of counsel to WolfBlock Brach Eichler of Roseland and is an adjunct professor of Internet law at Pace Law School and Rutgers Law School. He is also the author of 101 Things You Need To Know About Internet Law [Random House 2000].

As worldwide Internet use grows, international Internet legal difficulties increase. Resolution is commonly obtained through traditional international treaties, conventions and jurisdictions; however, some critical matters concerning international use and regulation of the Internet remain unsettled.

The vast majority of e-commerce entails American entities as buyers, sellers and/or enablers. As a result, United States law is often used to resolve international Internet legal difficulties despite the fact that the Internet legal difficulties involve people outside the United States. The United States has enacted Internet-related laws, as have other jurisdictions. The Council of Europe's Cyber-Crime Convention, the Hague Convention on Jurisdiction and Judgments, rulings of the World Intellectual Property Organization, and the United Nations Internet governance proclamations are but a few examples.

Foreign governments have initiated litigation against United State entities for specific Internet transactions. Google's censorship activities in China and France's assertion of jurisdiction over Yahoo! are two examples. The United States is making an effort to regulate online gambling and spam of foreign entities. Even nongovernmental agencies are attempting to implement Internet laws. Consider the ongoing governance activities of the Internet Corporation for Assigned Names and Numbers, as it considers the role of technical standard-setting bodies and in doing so regulates Internet content.

While no international Internet convention exists, several Internet related conventions, treaties and agreements do exist. The more prominent are the United Nations Convention on the Use of Electronic Communications in International Contracts; the Council of Europe Cyber-Crime Convention; the World Intellectual Property Organization Treaties; and the Hague Choice of Court Convention.

While not yet in force, the 2005 United Nations Convention on the Use of Electronic Communications in International Contracts has the most potential for significant impact. The United Nations Convention on the Use of Electronic Communications in International Contracts endeavors to improve legal certainty and commercial certainty by addressing the determination of an Internet user's location for legal purpose. It attempts to codify the time and place of dispatch and receipt of electronic communications, as well as the proper use of automated message systems for contract formation. The convention set forth the standards to be used for establishing functional equivalence between electronic communications and paper documents. Similar to the United State's E-Sign act, the convention would allow electronic signatures to be treated in the same manner as 'original' paper documents.

The Council of Europe's Cyber-Crime Convention was signed in 2001 by the United States and 29 other countries. The Cyber-Crime Convention requires countries to establish criminal laws prohibiting numerous acts. The Cyber-Crime Convention outlaws: unauthorized access of an Internet computer system; unauthorized interception of Internet data; damage to Internet-related computer equipment; interference with the functioning of Internet-related computers; Internet fraud and forgery; the production or distribution of child pornography, and copyright infringement using the Internet.

The Cyber-Crime Convention provides mechanisms for international cooperation in the fight against Internet-related crime. However, those mechanisms are difficult to implement without support by the information-seeking country and the information-providing country.

The World Intellectual Property Organization has promulgated both a copyright and patent treaty. Both treaties have international Internet law aspects. The World Intellectual Property Organization Copyright Treaty, which was ratified by 60 countries, requires enactment of laws to protect copyrights in computer programs and some databases, both of which are required for Internet content and communications processes. In particular, this copyright treaty requires enactment of laws to provide authors with the ability to control rental and distribution rights. As a result of this copyright treaty, the United States enacted laws to provide legal remedies against the circumvention of technological. However, other counties' implementation of the anti-circumvention rule has lagged.

The World Intellectual Property Organization Patent Cooperation Treaty, which was ratified by 14 counties, has streamlined the patent application process by making it possible to file simultaneously in a large number of countries via the Internet. The World Intellectual Property Organization Patent Cooperation Treaty also creates limitations on the amount of additional information/requirements that individual states can impose on putative patentees.

While the Hague Choice of Court Convention does not specifically address the Internet, it seeks to create more certainty regarding jurisdiction and judgment recognition, which is important to online interaction. The Hague Choice of Court Convention governs international business-to-business agreements. It does not regulate consumer transactions. For business-to-business agreements, the Hague Choice of Court Convention states that forum selection clauses will be honored; thus, the jurisdiction set forth in the contract agreement will govern, and the chosen court's judgment will be recognized and enforced everywhere. It should be noted that wholly domestic agreements cannot designate a foreign court.

The United States and the European Union have different privacy standards, and international data privacy agreements have resulted. In particular, the European Union has adopted a 'safe harbor' framework that requires American businesses engaged in transactions with parties in Europe to comply with European privacy rules. The safe harbor requirements include: giving appropriate notice to individuals about the purposes for which information is being collected and providing a means for lodging inquiries and complaints; giving individuals the opportunity to opt out of any disclosure to a third party; requiring third party information recipients to ascribe to the same principles of notice and information opt out; giving individuals access to personal information that an organization holds and individuals to correct, amend or delete that information where inaccurate; requiring data collectors to take reasonable precautions to protect personal information; and limiting their data collection to relevant purposes.

In addition to statutory international Internet law, international Internet case law has also arisen. Courts have, therefore, grappled with issues of jurisdiction, choice-of-law and judgment recognition. In La Ligue Contre Le Racisme et L'Antisémitisme v. Yahoo, a French court decided an Internet case concerning the sale of Nazi-related items, which sparked a case in the United States concerning the enforcement of the French judgment.

The parties to most international Internet legal disputes claim jurisdiction outside of the United States and, therefore, argue for the application of non-American law. These cases have resulted in a significant amount of publicity but little economic impact.

In Dow Jones v. Gutnick, the High Court of Australia allowed an Australian to bring a defamation suit for an Internet article published on an American server, but down-loaded in Australia. The Australian court unanimously decided that Gutnick had the right to sue for defamation at his primary residence. In doing so, the court effectively allowed plaintiffs in Australia to sue any defendant, regardless of location, for defamatory statements published on the Internet.

In Bangoura v. Washington Post, a Canadian trial court's decision to allow an Internet-based defamation claim against an American company was reversed on appeal. Similarly, in an Italian case, In re Moshe D., the decision of a lower tribunal -- holding it had jurisdiction over foreign-based Internet sites containing defamatory material because end-users connect from within Italy's territories -- was overturned. Prior to the reversal, the case resulted in world-wide Internet jurisdiction for Italian courts.

The Lewis v. King, an English court allowed a libel action for two texts stored on Web sites based in California. In Copiepresse v. Google, a Belgian court ordered Google to remove from its Google News service and from Google's cache servers articles and photographs extracted from the daily French and German-language press published in Belgium. By failing to obtain consent from the Belgian publishers, the court decided that Google infringed the copyright and database right in the content displayed on Google News.

While some courts have applied their own law to international Internet legal disputes, others have applied American law. Two choice-of-law cases, GlobalSantaFeCorp. v. Globalsantafe.com and Barcelona.com, Inc. v. Excelentisimo Ayuntamiento de Barcelona, concerned the application of U.S. trademark law to transnational Internet domain name disputes. Another, Yahoo!, Inc. v. La Ligue Contre Le Racisme et L'Antisémitisme, addressed whether a French judgment about Internet content accessible in France should be recognized by a U.S. court. In all three cases, the foreign courts applied American law.

Finally, the United States has allowed the World Court to apply the World Trade Organization's General Agreement on Trade in Services (GATS) to American Internet anti-gambling statutes. As a result, Antigua convinced the World Court that the United States statutes preventing Americans from engaging in Internet gambling trade off-shore was unlawful. It should be noted that thus far, the United States has not complied with the World Court decision ordering it to cease and desist interfering with the Antiguan government's right to sanction and facilitate Internet gambling operations in its own country.