Jurisdiction in Network Society

Abstract

Jurisdiction - or more precisely the entitlement to regulate a transnational event, that is to make, apply and enforce laws in respect of it - continues to be a live issue within the arena of network regulation and to evolve in line with wider regulatory trends. The controversy in the online environment has shifted away from the question of whether and, if so, when a State may apply its defamation, privacy, contract and intellectual property law, or criminal and regulatory law on eg. obscenity, pharmaceutical licencing and gambling to a global online activity. Now the focus is on more pragmatic concerns and in particularly, on the dominant tech platforms and their gatekeeping and data collection capacities, and when and how they may be co-opted by into the business of territorial regulation. This chapter selectively traces jurisdictional developments as constitutive of these new regulatory trends in network society, set against customary international law on legislative, adjudicative and executive jurisdiction. It posits that the authority of the territorial State is after all not weakened by the rise of a global network society, and might even be strengthened by it.

Keywords: Customary international law, jurisdiction, enforcement jurisdiction, CLOUD Act, MLAT, platform liability, notice and takedown, blocking, gatekeeping, territorial fragmentation, balkanisation, territorial sovereignty, targeting