Targeting Factors and Conflict of Laws on the Internet
45 Pages Posted: 29 Sep 2020
Date Written: September 14, 2020
Courts have employed the concept of “targeting” to limit the reach of personal jurisdiction and applicable law on the Internet. To determine whether a defendant has targeted a particular country or state—and whether the defendant should be subject to the jurisdiction of and law in that country or state—courts consider various factors, such as the language, the top-level domain, and the currency used by the defendant on the Internet. However, developments in Internet technology and increasing Internet actor and user sophistication put the significance of the factors into question. In the absence of a defendant’s express limitation on the territorial reach of its actions, such as through geoblocking or disclaimers accompanied by defendant conduct that is consistent with any disclaimers, courts should assume that the defendant has targeted all countries connected to the Internet. This approach may result in courts finding personal jurisdiction over a defendant more frequently, thus raising legitimate concerns about possible “overexposure” of Internet actors to personal jurisdiction and applicable law. However, any overexposure that might result from this approach will be mitigated by a number of procedural and practical constraints and, to the extent that overexposure might exist, additional solutions should be created from the already existing solutions that address complexities in individual national legal systems.
Keywords: courts, jurisdiction, Internet, geolocation, geoblocking, domain names, targeting, Zippo, Walden, territoriality
Suggested Citation: Suggested Citation