Is There a There There? Towards Greater Certainty for Internet Jurisdiction

63 Pages Posted: 26 Apr 2001

See all articles by Michael A. Geist

Michael A. Geist

University of Ottawa - Common Law Section

Abstract

The unique challenge presented by the Internet is that compliance with local laws is rarely sufficient to assure a business that it has limited its exposure to legal risk. Since Web sites are accessible worldwide, the prospect that a Web site owner might be hauled into a courtroom in a far-off jurisdiction is much more than a mere academic exercise -- in an Internet environment that provides instant global access, it is a very real possibility.

The paper identifies why the challenge of adequately accounting for the legal risk arising from Internet jurisdiction has been aggravated in recent years by the adoption of the Zippo legal framework, commonly referred to as the passive versus active test. The test provides parties with only limited guidance and often results in detrimental judicial decisions from a policy perspective.

Given the inadequacies of the Zippo passive versus active test, the paper argues that it is now fitting to identify a more effective standard for determining when it is appropriate to assert jurisdiction in cases involving predominantly Internet-based contacts. With the benefit of the Zippo experience, the new test should remain technology neutral so as to a) remain relevant despite ever-changing Web technologies, b) create incentives that, at a minimum, do not discourage online interactivity, and c) provide sufficient certainty so that the legal risk of operating online can be effectively assessed in advance.

The solution submitted in the paper is to move toward a targeting-based analysis. Unlike the Zippo approach, a targeting analysis would seek to identify the intentions of the parties and to assess the steps taken to either enter or avoid a particular jurisdiction. Targeting would also lessen the reliance on effects-based analysis, the source of considerable uncertainty since Internet-based activity can ordinarily be said to create some effects in most jurisdictions.

To identify the appropriate criteria for a targeting test, the paper recommends returning to the core jurisdictional principle -- foreseeability. Foreseeability in the targeting context depends on three factors -- contracts, technology, and actual or implied knowledge. Forum selection clauses found in Web site terms of use agreements or transactional clickwrap agreements allow parties to mutually determine an appropriate jurisdiction in advance of a dispute. It therefore provides important evidence as to the foreseeability of being hauled into the courts of a particular jurisdiction. Newly-emerging technologies that identify geographic location constitute the second factor. These technologies, which challenge widely held perceptions about the Internet's architecture, may allow sites to target their content by engaging in "jurisdictional avoidance." The third factor, actual or implied knowledge, is a catch-all that incorporates targeting knowledge gained through the geographic location of tort victims, offline order fulfillment, financial intermediary records, and Web traffic.

Keywords: Internet, jurisdiction, e-commerce

JEL Classification: K20, K12, K33

Suggested Citation

Geist, Michael A., Is There a There There? Towards Greater Certainty for Internet Jurisdiction. Berkeley Technology Law Journal, Fall 2001. Available at SSRN: https://ssrn.com/abstract=266932 or http://dx.doi.org/10.2139/ssrn.266932

Michael A. Geist (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada
613-562-5800 x3319 (Phone)
613-562-5124 (Fax)

Register to save articles to
your library

Register

Paper statistics

Downloads
616
rank
40,006
Abstract Views
3,260
PlumX Metrics