Extraterritorial Enforcement of National Laws in Connection with Online Commercial Activity

Abstract

Online commercial activity is subject to laws that are mostly the laws of individual countries, even if some of the laws happen to be highly harmonized among the countries. In the online context, the enforcement of national laws is problematic: A country may lack the ability to enforce its laws against actors who are located outside the country and who locate their assets outside the country. The internet makes it extremely easy for actors to act from remote locations, including from outside the country in which their internet acts cause effects, and to locate their assets outside the country. Although alternative means of enforcement exist that target other persons and entities, such as intermediaries, the alternative means also present challenges. This chapter discusses the enforcement of national laws on the internet, including enforcement against absent actors, and considers whether that enforcement can be improved.

There are at least three significant reasons to improve the enforceability of national laws on the internet and their enforceability against absent actors. First, as a general rule, effective laws require the possibility of effective enforcement; to the extent that laws should be followed, countries have to be able to enforce the laws, including laws in the online context and against absent actors. Second, skepticism about the enforceability of laws on the internet permeates legislative and policy debates; doubts about the feasibility of effectively enforcing laws on the internet seem – at least in some areas of law – to impede progress on substantive issues. Improvements in enforceability would bring clarity to the debates on substantive issues and contribute to better substantive policy choices. Third, improvements in the enforceability of national laws against absent actors are also desirable because alternative enforcement mechanisms have specific problems and cannot fully replace direct enforcement against absent actors.

Keywords: internet, enforcement, international law, conflict of laws, private international law, jurisdiction, choice of law, recognition, geoblocking, geolocation, injunction, territoriality