The Access-Based Jurisdictional Principle in Internet-Related Cases

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 accessbased 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 seven leading Internet jurisdiction cases discussed before national courts in Europe, North America and East Asia where the access-based jurisdictional approach was adopted: Dow Jones v Gutnick, Young v New Haven Advocate, Coleman v MGN Limited, Breeden v Black, Yeung v Google Inc., R v Perrin and LICRA and UEJF v Yahoo! Inc. and Yahoo France. 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: GigaNet