Of Elephants, Mice, and Privacy: International Choice of Law and the Internet
47 Pages Posted: 3 Sep 1998
Date Written: August 1998
This article addresses two subjects concerning international choice of law and the Internet. It examines the choice of law regime created by the E.U. Data Protection Directive, which enters into effect in October, 1998. The Directive shows the uses and limitations of harmonization as an alternative to choice of law, and also shows that many choice of law problems for the Internet will be resolved through transgovernmental networks of regulators rather than court adjudication.
Concerning legal regulation of the Internet generally, the article introduces the metaphor of "elephants" and "mice." Elephants are large and powerful companies that are typically subject to jurisdiction in multiple countries. Mice are small and mobile actors, such as pornography sites and copyright violators, that breed annoyingly quickly. Legal regulation on the Internet can work against elephants, and choice of law problems will often arise. But because mice are so hard to catch, legal regulation will instead focus on proxies, such as users, Internet Service Providers, financial intermediaries, or offshore countries that house the mice. Mice will hide and deny jurisdiction, so choice of law will be less important for them.
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