Solving the Internet Jurisdiction Puzzle

289 Pages·2017·13.304 MB·English

by  Dan Jerker B. Svantesson

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SOLVING THE INTERNET
JURISDICTION PUZZLE
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Solving the Internet
Jurisdiction Puzzle
DAN JERKER B. SVANTESSON
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To Felix, Freja, and Bianca
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Foreword
As I write this foreword, a powerful giant of the online world is smarting
from the sting of the Canadian judiciary. In a 9- 2 majority judgment handed
down just over a month ago, the Supreme Court of Canada rejected an
appeal by Google Inc. against a lower court’s decision to issue an interlocu-
tory injunction enjoining the search- engine operator from displaying, in any
of its search results, links to a particular enterprise’s websites that are being
used to breach intellectual property rights.1 In other words, Google is being
required by the judiciary in one country to de- index certain websites from its
search- engine platform across all countries. Unsurprisingly, Google has just
made a counter- move by filing suit in the US District Court for Northern
California requesting non- enforcement of the injunction because it allegedly
breaches US law and public policy. The procedural acrobatics are remin-
iscent of last decade’s famous transatlantic dispute arising from a French
court ordering Yahoo! to prevent Nazi items from being sold on its online
auction site.
While intriguing to follow, such acrobatics are expensive and their results
frequently messy. At the same time, they highlight some of the contours
of what Professor Svantesson politely sums up as ‘the internet jurisdiction
puzzle’. I write ‘politely’ because internet jurisdiction could equally, if not
better, be described as a quagmire. It has been a quagmire ever since the
end of the 1990s, not long after the internet became a ubiquitous backbone
for electronic transactions. But the deleterious effects of the quagmire are
increasingly felt as globalization, marching hand- in- hand with digitalization,
continues to compress the world.
Extending the memorable phrasing by Michael Geist and Judge Nancy
Gertner,2 the nub of the problem is that where there is no obvious ‘there there’,
laws easily get spread everywhere. And although the push to apply national or
regional laws across the globe is often paved with good intentions, it increases
the potential for cross- jurisdictional clashes, regulatory overreaching, and dis-
ruption to communication at the same time as aggravating risk and uncertainty
for businesses, consumers, and governments. Disagreement and befuddlement
over how to resolve inter- legal conflict exacerbate these problems.
1 Google Inc. v. Equustek Solutions Inc. (2017) SCC 34.
2 Michael Geist, ‘Is There a There There? Towards Greater Certainty for Internet Jurisdiction’
(2001) 16 Berkeley Tech L J 1345, 1346.
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The regulatory quandaries of internet jurisdiction are accordingly in dire
need of level- headed, fresh, yet informed thinking. This book provides a
solid dose of such thought. It overhauls old dogmas that have hamstrung
the sensible resolution of internet jurisdiction issues and it proposes a multi-
faceted framework for resolving these issues in a way that is more in tune
with the realities of today. Territoriality- based norms are duly singled out for
special critique: a central remit of the book is to stamp out the vestiges of a
mindset that privileges territoriality as the primary criterion for determining
jurisdiction.
As Professor Svantesson implicitly recognizes, the conundrum at hand
resembles neither Rubik’s Cube nor a traditional jigsaw puzzle. Creating
an optimal regulatory framework for internet jurisdiction does not rest on
the application of preset algorithms governed by fixed, bright- line criteria;
rather, it must rest on a relatively free- ranging, reflexive, and open- ended
consideration of multiple factors that is highly contextual. Furthermore, the
result will probably not be free of friction: in contrast to a traditional jig-
saw, the various elements making up the best solution to a particular dispute
over internet jurisdiction are unlikely to fit together in seamless harmony;
some of them will likely grate with each other (thus resembling the jigsaw
solution engineered by Professor Svantesson’s daughter, Freja—more on that
in the Preface!), although they will grate less than other solutions. Hence,
the optimal resolution of the internet jurisdiction puzzle promises neither a
high degree of legal certainty nor a complete absence of tension. But this is
hardly unique for internet jurisdiction—most sensibly functioning regula-
tory frameworks suffer from similar ‘imperfections’. In the latter respect, we
must also remember the age- old aphorism about the perfect being the enemy
of the good.
This book builds on and consolidates an extensive body of scholarship that
Professor Svantesson has generated over the past fifteen years or so. I have
followed the development of his scholarship closely, right from the time he
commenced his doctoral studies, and I am deeply impressed. As a perusal of
the bibliography to this book attests, he is extremely productive. Moreover,
he is exceptionally prescient, as shown by his seminal work well over ten years
ago on the legal implications of geo- location technologies. His breadth of
knowledge and interests is huge, spanning far more than internet jurisdiction
matters per se. This too is evidenced in the following pages, where Professor
Svantesson deftly touches upon an array of fundamental jurisprudential issues
concerning, inter alia, the basic nature of law. More importantly, he not only
has a honed ability to parse and criticize existing regulatory frameworks, but
to suggest templates for their improvement. And in doing so, his scholarship
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Foreword ix
is imbued with a dogged commitment to principle- based templates tempered
by a healthy concern for what is practical. Again, this welcome synthesis of
principles and pragmatism manifests itself in the following pages.
All up, this book firmly cements Professor Svantesson’s status as one of
the most exciting scholars working on regulatory issues pertaining to the
online world.
Lee A. Bygrave
Oslo, August 2017