Private International Law
and the Internet
Tereza Kyselovská
Syllabus
1.
2.
3.
4.
Internet – characteristics, regulation
Private international law and the Internet
Non-contractual obligations
Contractual obligations
Sources
• BBC Two documentary
– The Virtual Revolution. How 20 Years of the Web has Reshaped our Lives
– http://www.bbc.co.uk/programmes/b00n4j0r
– Youtube
Sources
• Dan Jerker B. Svantesson
– Private International Law and the Internet
• Lawrence Lessig
– Code v. 2
– Lectures on www.ted.com
– Intellectual property rights, copyright etc.
#:
• #
TED.com
Lawrence Lessig. On Laws that Choke Creativity
http://www.ted.com/talks/lang/en/larry_lessig_says_the_law_is_stra
ngling_creativity.html
Globalization, electronization
From „no man‘s land“ to „every man‘s land“
 Conventional legal approaches
are challenged online
Legal tools employed for
performing a balancing act with
countervailing interests appear to
gain a new meaning online
 Equilibrium needs to be
reiterated given this new context
 Digitization of law, legal
relationship – learning from the
environment – net infrastructure
Internet - characteristics
• “The combination of computer facilities and electromagnetic transmission
media, and related equipment and software, comprising the
interconnected worldwide network of computer networks that employ the
Transmission Control Protocol/Internet Protocol or any successor protocol
to transmit the information” US Communications Act
Internet - characteristics
• “Virtual space”: information can be accessed irrespectively of physical
location
• Lack of fully reliable geographic identifiers (for now)
• Borderless x principle of territoriality (1648)
• Digitization
• No central control
• Carriers – automated services
• Confluence of private and public international law
World Wide Web
• Worldwide accessibility
• Worldwide potential damage
• Worldwide jurisdiction
Space Contested : Neither Here Nor There
Yahoo! Inc. v. La Ligue Contre Le Racisme et l'antisémitisme (LICRA)
“Everything you do on the Web
“What makes this case uniquely challenging
may be subject to just about
everybody’s law”
D. Post
is that the Internet … allows one to speak in
more than one place at the same time”
Justice Fogel
@WikiLeaks: “Free speech has
.
a number: http://88.80.13.160”
wikileaks.o
rg
ch
(Swiss address,
Swedish IP, French server
14 name servers pointing to 3 IP
blocks with diverse geo location
Over 1000 mirror sites worldwide
Legal rules and the Internet
• Celebrating 20 years of WWW – a reflection on the concept of
jurisdictional and choice of law rules
1.
2.
3.
4.
1991 – 1999 wild wild web
2000 – 2009 overregulation
2010 degree of underregulation
??? eqilibrium, prosperity, happiness
Svantesson, Cyberspace 2011, Brno
Phase 1: WWW = Wild Wild Web?
• “Governments of the Industrial World, you weary giants of flesh and steel, I
come from Cyberspace, the new home of Mind. On behalf of the future, I
ask you of the past to leave us alone. You are not welcome among us. You
have no sovereignty where we gather...”
• John Perry Barlow, Declaration of the Independence of Cyberspace (1996)
Phase 1: WWW = Wild Wild Web?
•
•
•
•
1991 – 1999
0 – 6,5 mil websites
Internet „opened for everyone“
Freedom from state – liberty, equality, participation and openness – selfgovernance
• No legitimacy of states to regulate cyberspace
• Cyberanarchy
• Cyberlibertarians - Cyberspace ‘by nature’ cannot be governed by states
“Law and Borders” by D. Johnson and G. Post
•
-
Geographic borders for law make sense in the “real world”
Power of local governments to enforce laws
Effects are felt within geographic borders
Legitimacy: “consent of the governed”
Notice: citizens are aware of their obligations
• But geographic borders do not make sense in cyberspace: physical location
does not matter/ no borders
• No power to enforce (arbitrage/circumvention)
• Effects are not felt in a particular physical location – WWW is available
simultaneously to anyone with a connection to it
• No state has can claim control more than another – risk of overregulation
• No legitimacy: participants are located everywhere
• FOR THESE REASONS:
• Cyberspace is a distinct “place” for the purposes of legal analysis
• The Net can develop its own effective legal institutions –
consensus/common standards/mutual coordination
Traditionalists
•
•
•
•
Cyberspace is not that different from the “real world”
Laws can deal with multi-jurisdictional problems
Technology can prevent extraterritorial effects
Legitimacy where the effects of a practice manifest within the jurisdiction
or where one jurisdiction is targeted by a practice
• Certain issues cannot be left to self-regulation - e.g. when is your consent
valid, protection of third parties
L. Lessig’s Code
• “Left to itself, cyberspace will become a perfect tool of control”
• “Whether cyberspace can be governed depends on its architecture” – “the
nature of the Internet is not God’s will, it is simply the product of its
design”
• “Liberty in cyberspace will not come from the absence of the state [..] it
will come from a state of a certain kind [..] we built liberty by means of an
architecture that structures and contains social and legal power, to the
end of protecting fundamental values”
• “Code is law”
Phase 2: Overregulation
• “However broad may be the reach of any particular means of
communication, those who make information accessible by a particular
method do so knowing of the reach that their information may have. In
particular, those who post information on the World Wide Web do so
knowing that the information they make available is available to all and
sundry without any geographic restriction.”
• Dow Jones & Company Inc. v. Gutnick (2002) 210 CLR 575, 605
Phase 2: Overregulation
• Gutnick
• Yahoo vs. Licra
Yahoo! Nazi Memorabilia case
• Facts: Nazi related objects offered for sale on Yahoo.com auction website
(US-based!) in violation of French criminal law
• French court: jurisdiction because Yahoo.com targeted French citizens order to eliminate access by French citizens to this material – technical
aspects
• US District Court: right of free speech precluded enforcement of order
against a US website
• Decision by US District Court was later reversed
Great China Firewall
 ISPs obliged to block websites
on the basis of list by Public Security Bureau
 Government controls 8 backbone gateways
to global Internet
• Site-blocking software in public computers
 Site-blocking software in public computers
 Blocked material: subversive of state power, damaging to national unity,
disturbing
 of social order, pornographic material...
Phase 3: A degree of under-regulation
• Pammer, Apenhof
• eDate Advertising
Phase 4: Equilibrium, prosperity and happiness?
1. Dis-targeting
2. Geo-location technologies
3. Carving up the Internet – vertical and horizontal fragmentation
The reality – Who regulates the Internet?
1996: “Governments of the industrial
world… you have no moral right to
rule us nor do you possess any
methods of enforcement…”
John Perry Barlow, EFF
WSIS 2005: Agreement for
International Debate on Online
Policy - IGF
June 2011: ICANN and GAC
agree on unwanted new domain
names
1998:J.Postel splits the Root
1999: “Code is Law”, L.Lessig
Suggestions for the
UN and its agency
ITU to control the
Internet
September 2011:
IGF multi stakeholder
debate on finding common
ground for private actors,
governments and civil
society
“End-to-end” principle
• “dumb networks” and “smart terminals” – all the intelligence of the
network must be placed at the edges (Slatzer, Reed and Clark)
• Technology reflects ideology (Andrew Keen interview for The Virtual
Revolution, BBC)
• End-to-end to some extent reflects the libertarian utopia (lack of central
control) but also confirms that the architecture determines the nature of
the Internet
Self-regulation
• “Rules which govern behaviour in the market are developed,
administered, and enforced by the people whose behaviour is to be
governed” (National Consumer Council)
International organizations
States
• States have affirmed their jurisdiction
• Most regulation of online activities comes from national law!
• What is the nexus required between a national jurisdiction and a website?
– Varies depending on the nature of the infringement
– E.g.: country of uploading/ country of downloading/ country targeted by the
website
Private International law and internet
• Symeon C. Symeonides. Codification and Flexibility in Private International
Law
• „… codes are not monsters… and even they are, they can be trained.“
Private international law and the Internet
•



Challenges for procedural and choice of law rules
Principle of territoriality
Location, location, location
Identification
The sliding scale of flexibility
1. Traditional fixed state-selecting rules
2.
Rules with
alternative
connecting
factors
3.
Rules with
escape
clauses
4.
Rules with
soft
connecting
factors
5.
Ad hoc
approaches
35
1. Traditional fixed state-selecting rules
• Lex loci contractus, lex loci delicti
36
2. Rules with alternative connecting factors
• lex loci contractus or lex causae, lex domicilii…
37
Rules with flexible connecting factors
• closest connection
• Allow more individualized approach
• Used as:
– Main CF, basic escape clause
– Default rule
– Gap-filler
38
3. Rules with escape clauses
• ordre public
• Art. 4/3 Rome I, Art. 4/3 Rome II
• „clear from all circumstances fo the case“, „manifestly more connected to
the case“
– Based on territoriality – escape clauses should cure the rule‘s deficienecies,
not to reproduce them
39
4. Rules with soft connecting factors
• „law that has most significant connection to the parties and the dispute“
• „the law of the state whose contacts with the parties and the disputes and
whose policies on the disputed issues make application of the state‘s law
the most appropriate for those issues“
• § 10 ZMPS – rozumné a spravedlivé uspořádání právního vztahu
40
5. Ad hoc approaches
• U.S.
• Discretion of judge
• Minimum contacts
– Cunduction of business
– Torts – effects doctrine
• due process test
1. Minimum contacts with the forum
2. Fair play and substantial justice
41
5. Ad hoc approaches
• U.S. – Restatement (Second) – „the goal of the choice of law process is to
identify the state that has the most significant relationship“
– the needs of the interstate and international systems
– the relevant policies of the forum
– the relevant policies of other interested states and the relative interests of
those states in the determination of the particular issue
– the protection of justified expectations
– the basic policies underlying the particular field of law
– certainty, predictability and uniformity of result
– ease in the determination and application of the law to be applied
42
Private international law and the Internet
• International, regional, national initiatives
• UNCITRAL
– Model laws on e-commerce
• Hague Convention on Private International Law
– Hague Conventions on electronic contracting…
• The EU
– E-commerce directive, data protection directive
Main question
• Are the private international law rules (jurisdiction and choice of law
rules) suitable for online context?
• Shall we
– Use current and traditional rules?
– Create new rules for online relationships?
– Allow self-regulation of the Internet?
– European Court of Justice – not new rules, but new interpretation of them in
the online context
Rome I Regulation
•
•
•
•
•
•
•
•
Art. 3 – Choice of law
Art. 4 - applicable law in the absence of choice
Art. 5 – contracts of carriage
Art. 6 – consumer contracts
Art. 7 – insurance contracts
Art. 8 – individual employment contracts
Art. 9 – overriding mandatory rules
Art. 21 – ordre public
Choice of law in electronic contracts
Autonomy of will – Contractual freedom
To enter
or not to
enter the
agreeme
nt
Content
of the
contract
Form of
the
Contrac
t
Contra
ctual
partne
r
International dimension of the freedom of choice
Choose
the
Forum
Choose
the Law
To enter or not
to enter the
agreement
Form of the
Contract
Contractual
partner
Content of the
contract
Choice of law
• Art. 3
• A contract shall be governed by the law chosen by the parties. The choice
shall be made expressly or clearly demonstrated by the terms of the
contract or the circumstances of the case. By their choice the parties can
select the law applicable to the whole or to part only of the contract
The limits of the choice
Mandatory
rules of civil
law
Public
odrder
Sector
specific rules
of public law
Consumer
protection
Customs
(duties)
Criminal law
Tax Rules
Intellectual
property
To choose the
Forum that will
decide the
dispute
To choose the
Law that will
govern the
contract
To enter or not
to enter the
agreement
Form of the
Contract
Contractual
partner
Content of the
contract
Choice of law for internet services
Choose
the law
Choose
the forum
Choice of law
• Purpose is the legal certainty
• Rules are not technology specific
• The choice:
– shall be made expressly
– clearly demonstrated by the terms
– clearly demonstrated by the circumstances
• CIRCUMSTANCES
•
•
•
•
• CRITERION
• Reasonable
expectations?
Language ?
User community ?
– OR
Residence ?
• Clear intention of
Domain?
the parties?
Exemptions under Rome I
Consumer contracts
Insurance contracts
Mandatory provisions
Activities in the state of
residence
Public morale
Targeting consumers in
the state
Consumer protection
Other public interests
Choice of forum
• Hague convention on choice of court agreements
– Art. 3
• Brussels I (44/2011/EC)
– Section 7
Limitations of electronic form
• Hague and Brussels international instruments
– Any communication by electronic means
– provides a durable record of the agreement
• Click Wrap, Shrink Wrap, Browse Through ???
Exemptions
• Hague convention – Article 2
– Consumer and employment contracts are excluded
– Further exemprions from a) to p)
• Brussels convention
– Consumer and employment contracts are excluded
• How could service provider know, if the visitor is consumer?
How the service providers react to the regulation?
Games for windows
Observations
• The providers are not choosing one law
• They are trying to conform with various laws
• Sometimes they decide NOT to enter the market of a certain state.
Observations
• The providers are not choosing one law
• They are trying to conform with various laws
• Sometimes they decide NOT to enter the market of a certain state.
Questions
• Will rules create a new digital divide?
• Do consumers really benefit from consumer
protection?
Rome I Regulation
• Art. 4 - applicable law in the absence of choice
• To the extent that the law applicable to the contract has not been chosen
in accordance with Article 3… the law governing the contract shall be
determined as follows:
– a contract for the sale of goods shall be governed by the law of the country
where the seller has his habitual residence
– a contract for the provision of services shall be governed by the law of the
country where the service provider has his habitual residence
Rome I Regulation
– a contract for the sale of goods by auction shall be governed by the law of the
country where the auction takes place, if such a place can be determined
Rome I Regulation
• Art. 6 – consumer contracts
• contract concluded by a natural person for a purpose which can be
regarded as being outside his trade or profession (the consumer) with
another person acting in the exercise of his trade or profession (the
professional) shall be governed by the law of the country where the
consumer has his habitual residence, provided that the professional:
a) pursues his commercial or professional activities in the country where
the consumer has his habitual residence, or
b) by any means, directs such activities to that country or to several
countries including that country
Rome I Regulation
• Art. 6 – consumer contracts
• Case Pammer, Alpenhof
 List of criteria
• Art. 9 – overriding mandatory rules
• Art. 21 – ordre public
Choice of law rules for non-contractual obligations
Rome II Regulation
•
•
•
•
•
•
Art. 4 – general rule
Art. 5 – product liability
Art. 6 - unfair competition and acts restricting free competition
Art. 7 – enviromental damage
Art. 8 – infringment of intellectual property rights
Art. 9 – industrial action
Rome II Regulation
• violations of privacy and rights relating to personality, including
defamation are EXCLUDED
– why?
– Different position of national laws
– revision
• Damaging information made available online (personal blogs, electronic
newspaper) – consequences…
• Multiple and single publication rule
What is the ‘multiple-publication’ rule?
• Duke of Brunswick v Harmer (1849) 14 QB 185
• “The effect of the multiple publication rule in relation to online material is
that each “hit” on a webpage creates a new publication, potentially giving
rise to a separate cause of action, should it contain defamatory material.
Each cause of action has its own limitation period that runs from the time
at which the material is accessed.
• Government Consultation Paper: the Multiple Publication Rule CP20/09
Competing Claims
Publishers Claim:
The ‘defamed’ claim:
 Good internet vs bad courts
 Powerful internet
 Exposure to limitless claims
 Far-reaching effect
 Endless jurisdictions
 Endless damage to reputation
 Chilling effect
 European Convention on
 European Convention on Human Rights
Human Rights
Multiple Publication Rule in Practice
•



Australia
Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575
Multiple actions? Rejected, abuse of process principle
Endless jurisdictions? Rejected, plaintiff would have to show damage to
reputation in jurisdiction chosen/defendant would need assets in
jurisdiction used
 Archived material? Rejected, unlikely to be the subject of litigation
Multiple/internet publication rule UK
• Loutchansky v Times Newspapers Ltd (Nos 2-5) [2002] QB 783
• Times Newspapers Ltd (Nos 1 and 2) v United Kingdom [2009] EMLR 14
 “… libel proceedings brought against a newspaper after a significant lapse
of time may well, in the absence of exceptional circumstances, give rise to
a disproportionate interference with press freedom under Article 10.”
Single Publication Rule – US
 577A of the 2nd Restatement of Torts (197)
 Firth v State of New York (2002) 775 NE 2d 463
 “…there would be a serious inhibitory effect on the open, pervasive
dissemination of information and ideas over the Internet which is, of
course, its greatest beneficial promise.”
 Does not apply in cases of substantial republication
Rome II Regulation
• Art. 4 – general rule
• the law applicable to a non-contractual obligation arising out of a
tort/delict shall be the law of the country in which the damage occurs
irrespective of the country in which the event giving rise to the damage
occurred and irrespective of the country or countries in which the indirect
consequences of that event occur
Rome II Regulation
• Art. 8 – intellectual property rights
• The law applicable to a non-contractual obligation arising from an
infringement of an intellectual property right shall be the law of the
country for which protection is claimed
• Lex loci protectionis
• Copyright – Berne Convention
Copyright in the Internet era
Intellectual Property Rights in online era
• Lawrence Lessig. On Laws that Choke creativity
• http://www.ted.com/talks/lang/en/larry_lessig_says_the_law_is_stranglin
g_creativity.html
Legal instruments
• Berne Convention on the Protection of Literary and Artistic Works + Rome
Convention
• WIPO Copyright Treaty + WIPO Performances and Phonograms Treaty
• EU Copyright Directive
Exceptions? – Justifications
•
•
•

-
Public interest
Common uses that would impose disproportional transaction costs
Users’ freedom of expression and information?
Is there a conflict?
Copyright reflects balance: idea/expression, term of protection,
requirement of creativity
 Some restrictions reflect freedom of expression
- e.g. Fair use in the US
 But have some rights gone one step too far?
Exceptions – types
o
o
o
o
Berne Convention Art. 9(2): 3-steps:
Exceptions only allowed in certain cases
No conflict with normal exploitation
No prejudice to the legitimate interests of the author
o EU Copyright Directive Art. 5 – several exceptions (not mandatory!), e.g.:
o Private copying: reproductions for private use and for ends that are
neither directly or indirectly commercial
o Libraries..
ONLINE COPYRIGHT VIOLATIONS I: RAM COPIES
• Every time you open a webpage your computer makes a copy in its RAM
• This is a copy but it is exempted under article 5(1) of the Copyright
Directive
ONLINE COPYRIHGT VIOLATIONS II: UPLOADING/STREAMING
• Violation of communication right
• E.g.: Danish IFPI case V.L. B-0292-07 (Western High Court) – user of filesharing network was found liable for violating communication right
Norwegian case TFRED-2006-177576 (Court of First Instance Fredrikstad) –
user found liable for making available illegal copy of a movie by creating a
link on Piratebay
What is different about the Internet?
 Free copies and distribution
 “In the digital world, life is subject to copyright law” (Lessig, in Code)
 It has facilitated the production and dissemination of user generated
content, “amateur culture”
- But all this is subject to copyright law
- Lessig: Fair use exceptions were structured to help build an intellectual and
cultural commons – non-commercial creativity was left free of regulation in
the physical world
- Although for some, it has just allowed free consumption
 Digital technologies could allow full control
Calls for reform..
 Lessig: “resist perfect control over use”
 Creative Commons
 Compulsory licensing
 Insist on the distinction between commercial and non-commercial uses
 Perceive the Internet as a new form of distribution
 Communication from the Commission: Copyright in the Knowledge
Economy
Privacy & IP Online: Paradoxes for Info-Flow
The “Streisand” Effect
The Tragedy of Anticommons
Net infrastructure of decentralized exchange of abundant information
Free speech is embedded online – Ignoring this leads to paradoxes
Thank you for your attention
PROJECT „THEORY – SKILL – EXPERIENCE“
reg. No. CZ.1.07/2.2.00/15.0198, Operational Program Education for Competitiveness