The Access-Based Jurisdictional Principle in Internet-Related Cases

32 Pages Posted: 6 Jul 2017

See all articles by Sara Solmone

Sara Solmone

University of East London - School of Law, Students

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Date Written: April 10, 2017

Abstract

This study focuses on the access-based jurisdictional approach and on the effect that this approach can have on the fulfilment of freedom of expression online. The term access-based jurisdictional approach describes the criterion used by some national courts to establish jurisdiction in Internet-related cases. There are two distinctive elements that define the access-based jurisdictional approach. First, this approach is used by national courts to establish jurisdiction over content published online but uploaded and hosted outside the domestic forum. Second, the basis upon which jurisdiction is exercised is that the content published online from within the territory of a foreign State can be accessed within the territory of the country exercising jurisdiction. This study aims to answer the following research questions: how has the access-based jurisdictional approach so far been applied by national courts dealing with Internet-related cases? What are the main characteristics of this approach? Can establishing jurisdiction based on access affect the fulfilment of freedom of expression online? This study argues that the access- based jurisdictional approach allows countries to apply their laws extraterritorially to regulate virtually any content published online. This fact limits the freedom of expression of Internet users located in foreign States and subjected to foreign jurisdictions. In theory, these parties should only comply with the laws of their countries when uploading content on the Internet, rather than being expected to abide by the laws of every country where that content is accessible. This thesis is developed through the analysis of five leading Internet jurisdiction cases discussed before national and international courts where the access-based jurisdictional approach was adopted. Overall, this study identifies the problems associated with the exercise of jurisdiction based on access to online content and highlights the need for national courts to abandon this approach. The paper also examines the positive and negative aspects of adopting an alternative jurisdictional criterion, such as the targeting test.

Keywords: State jurisdiction, online jurisdiction, objective territorial principle, effects doctrine, targeting test, Internet

Suggested Citation

Solmone, Sara, The Access-Based Jurisdictional Principle in Internet-Related Cases (April 10, 2017). Available at SSRN: https://ssrn.com/abstract=2996197 or http://dx.doi.org/10.2139/ssrn.2996197

Sara Solmone (Contact Author)

University of East London - School of Law, Students ( email )

Dagenham
United Kingdom

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