Objective Territorial Principle or Effects Doctrine? Jurisdiction and ...

1. approFondimenti
Objective Territorial Principle or Effects Doctrine?
Jurisdiction and Cyberspace
Summary: 1. Introduction. – 2. Preliminary Survey of Principles of Jurisdiction. – 2.1. “Sufficient
Connection”. – 2.2. Limits of Extraterritorial Jurisdiction. – 3. Internet Cases. – 3.1. Yahoo!
Auction cases. – 3.2. Töben case. – 4. Observations. – 4.1. Affirmation of the Existing Criteria.
– 4.2. Reduced Significance of Distinction between the Objective Territorial Principle and the
Effects Doctrine. – 5. Conclusion.
1. Introduction.
How far the information technology affects law was a generalized debate
concerning law and cyberspace in 1990s. 1 Some argued that the difference was
negligible and the existing legislation could deal with cyberspace. Others argued
that this was an underestimation of the physical difference between the traditional
environment and cyberspace. This general debate concerning law and cyberspace
was also a particularly relevant debate for one area of public international law,
namely, the principles of jurisdiction. 2 This is the most affected area of public
international law by cyberspace because the established principles of jurisdiction
are firmly based on the concept of territory. In the physical world composed
of territorial States, and in the legal order built upon the concept of territorial
sovereignty, the default principle is the territorial principle: the territorial State
has jurisdiction over people, things and what occurs in its territory. The striking
characteristic of cyberspace in this regard is plainly the absence of borders and
territories. Thus, the natural question that arises is whether or not the wellestablished
principles of jurisdiction can deal with cases in a satisfactory way
when they involve cyberspace and jurisdiction of a multiple States.
1 The most inspiring work is Lawrence Lessig, Code and Other Laws of Cyberspace (1999).
2 Joel P. Trachtman, Cyberspace, Sovereignty, Jurisdiction, and Modernism, 5 Ind. J. Global Leg.
Stud. (1998), pp. 561-81.

In.Law | 6 (2006) | 285
This article examines how the principles of jurisdiction function in cases
in courts involving internet. The concrete question to be dealt with is twofold.
First, do the courts in cases involving internet use the established principles of
jurisdiction, or do they deviate from these principles and apply new logic and
reasoning to internet cases? The observation of this article is that the courts
indeed use the established principles of jurisdiction rather than inventing new
rules specifically for internet cases. Second, given this observation, is there any
novelty in the principles of jurisdiction in internet cases? A thesis of this article is
that although the principles of jurisdiction appear to be unaffected by cyberspace,
the way they function in internet cases is not identical to the way they functioned
in previous cases. The title of the present article is a teaser of this thesis.
The question of jurisdiction over online acts can arise both in a criminal
context and in a civil context. As the brief introduction above suggests, this article
deals with issues of public international law, i.e., criminal jurisdiction 3 as opposed
to civil jurisdiction. In studies of jurisdiction in public international law, the
subject is further divided into either two categories (prescriptive and enforcement
jurisdiction) 4 or three categories (prescriptive/legislative, judicial/adjudicative and
executive/enforcement jurisdiction). 5 This article adopts the former approach
since the division into three categories is not necessary for the purpose of this
article. When law is applied to a specific case by a court, it is considered as a
concrete manifestation of prescriptive jurisdiction. Unless specifically named
otherwise, jurisdiction in this article means prescriptive jurisdiction in this
sense. It is prescriptive jurisdiction that has always raised important theoretical
challenges especially with regard to its extraterritorial reach, 6 and it continues to
do so in the internet context.
3 “Criminal jurisdiction” in this context refers not only to jurisdiction over criminal matters
in a narrow sense. It refers to jurisdiction over all matters related to coercive measures by the state
authorities that are implemented to secure compliance with the law. Douglas E. Rosenthal & William
M. Knighton, National Laws and International Commerce: Problem of Extraterritoriality, (1982),
p. x. 4 Vaughan Lowe, Jurisdiction, in International Law 329, (Malcolm D. Evans ed. 2003), pp.
332-33; Pierre-Marie Dupuy, Droit international public (8th ed. 2006), pp. 82-83.
5 Michael Akehurst, Jurisdiction in International Law, 46 Brit. Y.B. Int’l L. (1972-73), pp. 145-
212; Antonio Cassese, International Law (2nd ed. 2004), pp. 49-51.
6 As to the enforcement jurisdiction, there is a wide agreement that it has to be strictly territorial,
in the sense that it cannot be exercised in the territory of another State without consent of
that State.

286 | In.Law | 6 (2006)
2. Preliminary Survey of Principles of Jurisdiction.
2.1. “Sufficient Connection”.
A convenient survey of well-established principles of jurisdiction can be
made by looking at penal legislation of a number of States that neatly lists these
well-established principles. 7 A survey of the provisions in the German, Italian
and Japanese penal legislation 8 produces the short list below.
a) Territorial principle: Penal legislation usually provides that it applies to
conducts in the territory of the State, regardless of the nationality of the
author of the conduct. 9
b) Subjective and objective territorial principles: When only a part of the conduct
occurs in the territory while the rest of the conduct occurs abroad, this part
of the conduct or a constituent element of the offence in the territory may
be a basis on which a State can exercise jurisdiction. 10
c) Protective principle: States also ensure that they are able to prosecute certain
crimes that affect their important interests even when they are committed
entirely abroad. 11
d) Nationality principle: States may extend jurisdiction to crimes abroad
committed by their own nationals. 12
e) Passive nationality principle: States may also extend jurisdiction to crimes
abroad when the victims of these crimes are their nationals. 13
Common to all the principles above is a broad sense of requirement that
a “sufficient connection” or a “genuine link” between the offence and the State
7 The present author has carried out a more detailed survey of these principles to tease out the
frames of reference for discussions in the internet context in Mika Hayashi, Utility of International
Law of Pre-Internet Era for Cyberspace, in The Resurgence of the State: Trends and Processes in Cyberspace
Governance (Myriam Dunn et al. eds., forthcoming in 2007).
8 Strafgesetzbuch is denoted as StGB, Codice penale is denoted as C.P. and the Japanese Penal
Code is denoted as JPC in the following footnotes.
9 StGB § 3, C.P. Art. 6, JPC Art. 1.
10 StGB § 9(1), C.P. Art. 6.
11 StGB § 5, C.P. Art. 7, JPC Art. 2.
12 StGB § 7(2), C.P. Art. 9, JPC Art. 3.
13 StGB § 7(1), C.P. Art. 10, JPC Art. 3bis.

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exercising jurisdiction is needed. 14 The bases of jurisdiction in the principles listed
above constitute indeed a sufficient connection accepted by States. The principles
that extend or complement the territorial principle, through b to e above, provide
the States with a right to regulate matters that do not entirely occur in their
territories or do not occur at all in their territories, but that are important in some
way or other for these States. 15
Since the bases besides the territorial principle are clearly admitted as principles
of jurisdiction, there may be cases where jurisdiction of more than one State overlaps.
In such cases, there may be a considerable difference between the law and policies
of the territorial State and those that another State seeks to impose by exercising
jurisdiction on the bases besides the strict territoriality. From the perspective of the
territorial State, when another State exercises jurisdiction extraterritorially in this
way, its freedom to act within its own territory can be threatened. 16 Consequently,
concurrent jurisdiction can produce a considerable friction in practice, too. This
explains why a sufficient connection is required when a State wishes to exercise its
jurisdiction on the basis other than the territorial principle.
This requirement of “sufficient connection” for extraterritorial exercise of
jurisdiction is the first important frame of reference that should be retained for
the subsequent discussion in the internet context.
2.2. Limits of Extraterritorial Jurisdiction.
Another important observation concerning principles of jurisdiction for the
subsequent discussion on internet cases is the limits of extraterritorial jurisdiction.
The past controversy over the effects doctrine, and how it compares with the
objective territorial principle, can illustrate this point.
The objective territorial principle is an extension of the territorial principle,
according to which a State has jurisdiction over an act that started abroad but was
14 Volker Epping & Christian Gloria, Der Staat im Völkerrecht, in Völkerrecht (Knut Ipsen ed.,
5th ed. 2004), pp. 321-22.
15 The universal principle is another established principle of jurisdiction that can be verified
in penal legislation of a multiple States. The principle is omitted from the survey in this article,
since it is an exceptional principle in that it does not require a sufficient connection between the
act in question and the State, or indeed, any connection. See Christian Tomuschat, Human Rights:
Between Idealism and Realism (2003), p. 274.
16 Michael Byers, Custom, Power, and the Power of Rules: International Relations and Customary
International Law (1999), p. 65.

288 | In.Law | 6 (2006)
completed in its territory. According to the formulation of the P.C.I.J. in the S.S.
Lotus case, which is frequently cited as an authority for the objective territorial
principle, 17 the base of this principle is that “offences, the authors of which at
the moment of commission are in the territory of another State, are nevertheless
to be regarded as having been committed in the national territory, if one of the
constituent elements of the offence, and more especially its effects, have taken place
there.” 18 In comparison, the effects doctrine can be described as a further extension
of the territorial principle that goes beyond what the objective territorial principle
could justify. The doctrine was developed by the US courts in the application
of the US anti-trust regulations. 19 Based on the effects doctrine, the US courts
justified the exercise of jurisdiction over cartel arrangements and collusions which
had not physically taken place within the United States at all. According to the
formulation of these courts, the US anti-trust law “applies to foreign conduct
that was meant to produce and did in fact produce some substantial effects in the
United States.” 20 The connection between the alleged offences and jurisdiction
that the US courts relied on in these cases was pure effects felt within the United
States. To nobody’s surprise, the US assertion of the effects doctrine resulted in an
acute confrontation, especially when certain forms of collusion and other acts in
question were not illegal in the territorial States. Other States protested, enacted
blocking legislation, and ordered the private actors involved in their territory not
to comply with US court orders. 21
The concern behind this opposition was that the effects doctrine seemed
to eliminate altogether the limits imposed upon the exercise of extraterritorial
jurisdiction: the justification based on effects alone could justify extraterritorial
jurisdiction infinitely. The effects doctrine does not suggest in any way that a part
of the act or a constituent element of the offence has to have occurred within the
17 Robert Jennings, Extraterritorial Jurisdiction and the United States Antitrust Laws, 33 Brit.
Y.B. Int’l L. (1957), pp. 159-60; Akehurst, supra note 5, p. 152; Lowe, supra note 4, p. 338.
18 S. S. Lotus (France v. Turkey), PCIJ Reports, Series A. No. 10 (7 September 1927).
19 Apart from the relevant US jurisprudence, see also Restatement (Third) of Foreign Relations
Law of the United States (1987); Anti-Trust Enforcement Guidelines for International Operations, issued
by the Department of Justice and the Federal Trade Commission (1995).
20 Hartford Fire Insurance Co. v. California, 113 S. Ct. 2891 (1993) [hereinafter referred to as
the Hartford Fire Insurance case].
21 For examples of blocking legislation, see A. V. Lowe, Blocking Extraterritorial Jurisdiction:
The British Protection of Trading Interests Act, 1980, 75 Am. J. Int’l L. (1981), pp. 257-82; Dupuy,
supra note 4, p. 89.

In.Law | 6 (2006) | 289
territory. In this regard, the theoretical difference between the effects doctrine
and the objective territorial principle was not negligible. 22 The objective territorial
principle was capable of demonstrating meaningful limits of extraterritorial
jurisdiction: when there is no intra-territorial act, the exercise of extraterritorial
jurisdiction is not permitted. The effects doctrine theoretically removed this limit,
by justifying the exercise of jurisdiction even when there was no intra-territorial
act, and the alternative limit it offered was unclear.
The reactions to the 1989 Wood Pulp case 23 heard by the European Court
of Justice stressed this theoretical difference between the effects doctrine and
the objective territorial principle. 24 The case involved a cartel of manufacturers
located outside the European market. The cartel agreement included price-fixing
for customers in the European Community, but the manufacturers involved had
no base within the Community territory. Thus, they challenged jurisdiction of
the Community, arguing that the alleged offence had taken place outside the
Community. The court, however, avoided discussing the effects of this offence as
a basis of jurisdiction. Instead, it “concentrate[d] on the place of implementation
of the agreement” 25 as something that actually occurred in the European market.
In other words, the court used a “fiction that there was some quasi-territorial
basis for jurisdiction.” 26 It meant that the court preferred the objective territorial
principle to the effects doctrine, and was therefore a relief to those who were
skeptical about the effects doctrine: the basis of jurisdiction in the Wood Pulp case
was “significantly narrower than the ‘effects’ doctrine in its most extreme form”. 27
While the Gencor case 28 a decade later does indicate a certain degree of acceptance
22 D. W. Bowett, Jurisdiction: Changing Patterns of Authority over Activities and Resources, 53
Brit. Y.B. Int’l L. (1982), p. 7; Roger O’Keefe, Universal Jurisdiction: Clarifying the Basic Concept, 2
J. Int’l Crim. Just. (2004) p. 739; Lowe, supra note 4, p. 339.
23 Ahlstrom and Others v. Commission of European Communities [1988] ECR 5193 [hereinafter
referred to as the Wood Pulp case].
24 Malcolm N. Shaw, International Law (5th ed. 2003), pp. 618-20; Antonio F. Bavasso, Boeing/McDonnell
Douglas: Did the Commission Fly Too High, 19 Eur. Competition L. Rev. (1998), pp.
244-45.
25 Stephen Weatherill & Paul Beaumont, EU Law (1999), p. 812 (emphasis in the original).
26 Dieter G. F. Lange & John Byron Sandage, The Wood Pulp Decision and its Implications for
the Scope of EC Competition Law, 26 Comm. Market L. Rev. (1989), p. 157. See also Dupuy, supra
note 4, p. 85.
27 Vaughan Lowe, International Law and the Effects Doctrine in the European Court of Justice, 48
Cambridge L.J. (1989), p. 11.
28 Gencor Ltd v. Commission of the European Communities (T102/96, Court of First Instance,
25 March 1999).

290 | In.Law | 6 (2006)
of the effects doctrine, 29 the concern about the unclear limits of extraterritorial
jurisdiction in the effects doctrine has not been dissipated. 30
Issues raised by this concern for limits of extraterritorial jurisdiction constitute
the second frame of reference to be retained for the subsequent discussions in the
internet context.
3. Internet Cases.
As is clear from the anti-trust cases briefly outlined above, the exercise of extraterritorial
jurisdiction can produce a significant friction when the requirements
of law are very different in the State where the conduct in question substantially
occurs and in the State that claims extraterritorial jurisdiction. In the internet
context, a friction occurs when two States have different legislation and policies
concerning the freedom of expression and publication. In the two case studies
below, the source of friction is the restrictions on Nazi-related speech in France
and Germany on one hand, and the absence of such restrictions in the United
States and Australia on the other. 31 These are cases that came before the municipal
courts of France and Germany, respectively. The particularity of these cases
is that the offenders were foreigners residing or operating abroad, who uploaded
contents or maintained the websites in question abroad, on a server which was
physically located abroad.
3.1. Yahoo! Auction cases.
The French courts tackled a well-known series of cases concerning Yahoo!
Auction site, whose server was located in the United States and maintained
by a US company. 32 The two French organizations dedicated to fighting anti-
29 Morten P. Broberg, The European Commission’s Extraterritorial Powers in Merger Control: The
Court of First Instance’s Judgment in Gencor v. Commission, 49 Int’l & Comp. L.Q. (2000), pp. 172-
73; G. Porter Elliott, The Gencor Judgment: Collective Dominance, Remedies and Extraterritoriality
under the Merger Regulation, 24 Eur. L. Rev. (1999), p. 641; Eleanor M. Fox, The Merger Regulation
and its Territorial Reach, 20 Eur. Competition L. Rev. (1999), p. 335.
30 Alina Kaczorowska, International Competition Law in the Context of Global Capitalism, 21
Eur. Competition L. Rev. (2000), p. 122.
31 For a broader background, see Cherie Dawson, Creating Borders on the Internet: Free Speech,
the United States, and International Jurisdiction, 44 Va. J. Int’l L. (2003), pp. 637-66.
32 In this article, only the cases that have a direct bearing on the principles of jurisdiction in

In.Law | 6 (2006) | 291
Semitism, la Ligue contre le Racisme et l’Antisémitisme and l’Union des Etudiants
Juifs de France, first filed this lawsuit. 33 The defendants were Yahoo! Inc., a US
firm, and Yahoo! France, a French firm. The complaint against these firms was
based on the fact that internet users in France that logged on to the US Yahoo!
Auction site had an access to the Nazi-related items on sale. In France, “[E]xcept
as needed for film-making, theatrical performances and historical expositions, it
is a crime to wear or exhibit in public a uniform, insignia or emblem resembling
the uniforms, insignias or emblems worn or exhibited” by the Nazi-related
organizations according to Article R645-1 of the Penal Code. 34 So was displaying
and selling the Nazi-related items in an auction site.
The Tribunal de Grande Instance in Paris decided in May 2000 that it had
jurisdiction on this case on the following basis: “[B]y permitting [anti-Semitic]
objects to be viewed in France and allowing surfers located in France to participate
in such a display of items for sale, the Company Yahoo! Inc. is therefore committing
a wrong in the territory of France, a wrong whose unintentional character is
averred but which has caused damage to be suffered by LICRA and UEJF, both of
the framework of public international law are discussed. The decisions concerning the substance of
the cases are not examined. For the same reason, the cases before the US courts are described in this
footnote but not discussed further. After the decision on 20 November 2000 (Yahoo! Auction case
(1b), see infra., note 37), Yahoo! Inc. decided not to pursue the matter in France, and instead, filed
a suit in the US District Court for the Northern District of California. The court affirmed jurisdiction
on 7 June 2001 (145 F. Supp. 2d 1168, N.D. Cal. 2001), and Yahoo! Inc. succeeded in obtaining
a summary judgment on 7 November 2001 to the effect that the orders of the French court were
not recognizable or enforceable in the United States (169 F. Supp. 2d 1181, N.D. Cal. 2001). The
reason for this judgment was the incompatibility of the French court orders with the First Amendment
of the US Constitution. Thereupon, the two French organizations that had sued Yahoo! Inc.
in France appealed to the US Court of Appeals, California. The court decided on 23 August 2004
that it did not have jurisdiction, on the grounds that it lacked personal jurisdiction over the two
French organizations (379 F.3d 1120, 9 th Cir. 2004). A rehearing of this judgment was decided on
10 February 2005 (399 F.3d 1010, 9 th Cir. 2005). The decision on 12 January 2006 [hereinafter
referred to as the Yahoo! v. LICRA case (2006)] finally turned down the request of Yahoo! Inc. (For
an analysis, see Andrew M. Pickett, Much Yahoo! About Nothing: The Ninth Circuit, Jurisprudential
Schizophrenia, and The Road Not Taken in Yahoo! Inc. v. La Ligue Contre le Racisme et l’Antisémitisme,
8 Tul. J. Tech. & Intell. Prop. (2006), pp. 231-45). The text of the Yahoo! v. LICRA case (2006) is
available at http://www.ca9.uscourts.gov/ (last visited on 14 February 2006).
33 The lawsuit was an action civile, in which the party asks for a compensation of damage aris-
ing from a crime.
34 The translation of the French Penal Code is available at http://www.legifrance.gouv.fr/, but
Partie Réglementaire – Décrets en Conseil d’Etat in which this article appears is not included in the
English translation (last visited on 15 November 2006).

292 | In.Law | 6 (2006)
whom are dedicated to combating all forms of promotion of Nazism in France.” 35
Since this damage had been incurred in France, the court had jurisdiction to hear
the case. 36 The same court reiterated in the subsequent decision that “a simple
displaying of such objects in France constitutes a violation of Article R. 645-1 of
the Penal Code,” and reaffirmed that “this displaying evidently causes damage in
France.” 37 By the decision (1a), Yahoo! Inc. was ordered to take all measures to
block the viewing of the prohibited items from France. The decision also imposed
astreinte of 100,000 Euros per day. 38 The decision (1b) in essence confirmed the
decision (1a), and ordered Yahoo! Inc. to comply with this order within three
months, and again made it clear that the continued non-compliance beyond this
timeframe would incur astreinte of 100,000 Francs per day.
In spite of the orders of these decisions in 2000, the internet users in France
were still able to access the site in question and see the Nazi-related items on the
site in January 2001. Therefore, a new lawsuit was initiated. 39 The lawsuit was based
on the French Penal Code, as well as the 1881 Press Liberty Law 40 and the 1982
Audiovisual Communication Law. 41 The Tribunal de Grande Instance and the Cour
d’Appel in Paris examined the jurisdictional issue, in 2002 and 2004 respectively,
and both affirmed French jurisdiction. 42 The Yahoo! side maintained that the case
35 Ordonnance de référé, rendue le 22 mai 2000, Tribunal de Grande Instance de Paris, No. RG:
00/05308, 00/05309 [hereinafter referred to as the Yahoo! Auction case (1a)]. The translation is taken
from the Yahoo! v. LICRA case (2006), supra note 32.
36 See Nouveau Code de Procédure Civile, Article 46.
37 See Ordonnance de référé, rendue le 20 novembre 2000, Tribunal de Grande Instance de Paris, No
RG: 00/05308 [hereinafter referred to as the Yahoo! Auction case (1b)].
38 In the procedure of “Référé”, through which the plaintiff can petition a judge for redress, the
judge can grant the request of the plaintiff and impose astreinte, a fixed monetary penalty per day to
force the defendant to comply with the decision.
39 This time, the lawsuit was filed in the criminal division against the US firm, Yahoo! Inc.,
and its CEO at that time.
40 Loi sur la liberté de la presse, loi du 29 juillet 1881.
41 Loi sur la communication audiovisuelle, loi n° 82–652 du 29 juillet 1982.
42 Both courts dealt with the preliminary questions and the substantive questions separately.
One of the preliminary questions was jurisdiction, discussed in Jugement du 26 février 2002, Tribunal
de Grande Instance de Paris, 17ème Chambre, Chambre de la Presse, No. 0104305259 [hereinafter
referred to as the Yahoo! Auction case (2a)], and Arrêt du 17 mars 2004, Cour d’Appel de Paris, 11ème
Chambre des Appels Correctionnels, No. 03/01520 [hereinafter referred to as the Yahoo! Auction case
(2b)]. As for the substantive questions, both courts acquitted the accused on the criminal charges,
and dismissed the charges in partie civile as well (Jugement du 11 février 2003, Tribunal de Grande
Instance de Paris, 17ème Chambre, Chambre de la Presse, No. 0104305259, confirmed by the Cour
d’Appel on 5 April 2005, reported by Libération (6 April 2005) and Daniel Arthur Laprès, Affaires

In.Law | 6 (2006) | 293
was not under French jurisdiction, because the auction service of Yahoo.com was
organized and maintained in the United States, and Yahoo! Inc. had not carried
out any act in France. 43 This was a position taken in the light of the following
jurisdictional clause of the French Penal Code. “French Criminal law is applicable
to all offences committed within the territory of the French Republic. An offence
is deemed to have been committed within the territory of the French Republic
where one of its constituent elements was committed within that territory.” 44 In the
light of this provision, the Yahoo! side specifically contended that all constituent
elements of the alleged offences were committed outside France. 45 However, the
Tribunal de Grande Instance considered that since the messages or the content of
the site were made accessible in the French territory through the internet, there
was room to examine the constituent elements in detail in order to determine the
place of the offence. 46 This examination led the Tribunal de Grande Instance to the
conclusion that the offence in question had not materialized exclusively abroad as
the Yahoo! side contended, but had materialized equally in the French territory. 47
In the jurisdictional phase of the case, the Cour d’Appel upheld both the reasoning
and the conclusion by the Tribunal de Grande Instance. 48
3.2. Töben case.
The Töben case in Germany, especially the different appreciations by the
lower court of Mannheim 49 and the Federal Court of Justice 50 concerning
Yahoo! (I et II) et Al Manar: l’approche universaliste confirmée deux fois, Juriscom.net, http://www.
juriscom.net (17 mai 2005) (last visited on 8 November 2006).
43 Yahoo! Auction cases (2a) and (2b), supra note 42.
44 French Penal Code, Article 113–2, see supra note 34 for the translation. How broad this
basis of jurisdiction can be in the internet context is discussed in Pierre Sirinelli, L’adéquation entre
le village virtuel et la création normative - Remise en cause du rôle de l’Etat?, in Internet: Which Court
Decides? Which Law Applies? Quel tribunal décide? Quel droit s’applique? (Katharina Boele-Woelki &
Catherine Kessedjian eds. 1998), p. 11.
45 Yahoo! Auction cases (2a), supra note 42, at II.1.
46 Yahoo! Auction case (2a), supra note 42.
47 See Yahoo! Auction case (2a), supra note 42, at II.2.a.
48 Yahoo! Auction case (2b), supra note 42.
49 LG Mannheim, Urt. v. 10. 11. 1999 – 5KLs 503 Js 9551/99 [hereinafter referred to as the
Töben case (LG)].
50 Bundesgerichtshof [BGH] [Federal Court of Justice], Urt. v. 12. 12. 2000 – 1 StR 184/00
(LG Mannheim), NJW 54(8), pp. 624–628 (2001) [hereinafter referred to as the Töben case
(BGH)].

294 | In.Law | 6 (2006)
how certain provisions of the Penal Code apply to publication in internet, also
highlighted the issues of principles of jurisdiction in the internet context. 51
Concerning jurisdiction, as has briefly been mentioned, § 3 of the Penal Code
establishes jurisdiction on the territorial principle: “German criminal law shall
apply to acts which were committed domestically.” This place of act is further
clarified by § 9(1), that encompasses justification of jurisdiction based on the
objective territorial principle: “An act is committed at every place the perpetrator
acted, or in case of an omission, should have acted, or at which the result, which is
an element of the offence, occurs or should occur according to the understanding
of the perpetrator.”
Three pieces of facts were relevant in the Töben case: (i) Sometime between
April 1997 and March 1999, the accused, an Australian citizen, maintained a
website of his “Adelaide Institute” in Australia, which carried his revisionist views
concerning Auschwitz. (ii) When someone else was found guilty of insulting an
Auschwitz survivor in Germany in August 1998, the accused wrote an “open
letter.” The letter included his revisionist views concerning Auschwitz. The postal
destination of this open letter included addresses in Germany, such as a magazine
publisher. The text of the open letter was maintained on the website, too. (iii)
Subsequently, the accused added new pages to the website of the Adelaide
Institute. They contained his revisionist views again.
For the purpose of the present examination, it is important to realize that the
facts (i) and (iii) of the case were purely about on line acts. The provision of the
German Penal Code 52 that raised a difficulty in this regard was § 130. § 130(1)
provides that “[W]hoever, in a manner that is capable of disturbing the public
peace: (i) incites hatred against segments of the population or calls for violent or
arbitrary measures against them; or (ii) assaults the human dignity of others by
insulting, maliciously maligning, or defaming segments of the population, shall be
punished with imprisonment from three months to five years.” § 130(3) provides
that “[W]hoever publicly or in a meeting approves of, denies or renders harmless
an act committed under the rule of National Socialism of the type indicated in
Article 220a subsection (i), in a manner capable of disturbing the public peace
shall be punished with imprisonment for not more than five years or a fine.”
51 The case analysis below focuses on the point that highlights the unique problems of internet
cases, and omits other points discussed in the case.
52 The English version of Strafgesetzbuch is taken from the translation provided by the German
Federal Ministry of Justice, available at http://www.iuscomp.org/gla/statutes/StGB.htm (last
visited on 16 November 2006).

In.Law | 6 (2006) | 295
The lower court decided that § 130 was applicable only to the fact (ii) of the
case with a physical element of the open letter. As to the facts (i) and (iii) of the
case, it considered that the accused had acted only in Australia, and that no act
had occurred in Germany in a way that would satisfy the requirement of § 9(1). 53
It also considered that in this case, no result which was an element of the offence
of the “agitation of the people” occurred in Germany, as required by § 9(1). 54 On
this point, however, the Federal Court of Justice had a different view. 55 It ruled
that the Penal Code, specifically § 130(1) and (3), was applicable to the facts (i)
and (iii) of the case, too. Unlike the lower court, after a detailed examination
of the nature of the offence of the “agitation of the people”, the Federal Court
of Justice reached the conclusion that the result which was an element of this
particular offence had indeed occurred in Germany. It therefore considered that §
9(1) permitted the exercise of jurisdiction for these offences.
4. Observations.
4.1. Affirmation of the Existing Criteria.
There are visible efforts in both the Töben case and the Yahoo! Auction cases
to capitalize on the established criteria to justify jurisdiction in internet cases.
These efforts can be identified at various levels: reliance on the objective territorial
principle even though it is unnamed in these cases; acceptance of sufficient
connection as a general requirement to exercise jurisdiction; and maintenance of
a sense of territory in the internet environment.
First, the cases examined above show a trend to rely on the objective territorial
principle even though it is not explicitly named. In the Töben case, the Federal
Court of Justice was reluctant to describe the relevant part of the case as a partial
occurrence of the act in the territory. Nevertheless, it relied on § 9(1) of the Penal
Code and characterized the publication in internet as producing a “result, which
is an element of ” the alleged offence. This reliance on the constituent element of
the offence as a justification for the exercise of jurisdiction is in accordance with
53 Töben case (LG), supra note 49.
54 Töben case (LG), supra note 49.
55 Töben case (BGH), supra note 50.

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the classic formulation of the objective territorial principle. 56 The French courts
in the Yahoo! Auction cases (2a) and (2b) also very clearly relied on a provision that
justifies jurisdiction on the objective territorial principle.
Second, the established principles of jurisdiction showed that there was a
general sense of requirement of sufficient connection. This requirement appears to
be accepted without question in internet cases, too. The reliance on the objective
territorial principle in the cases is in itself a sign that the courts looked for a
connection between the alleged offences and their jurisdiction. The lower court in
the Töben case even methodically went through the provisions on jurisdiction in
the Penal Code described previously: 57 these are provisions that show a connection
between the offence and Germany. Moreover, the Federal Court of Justice in the
Töben case articulately identified the requirement of connection as a requirement
of public international law, then moved on to state that the requirement was
satisfied in this case. 58
Third, the decisions of the courts also uphold the concept of territory, the
absence of which is supposed to be the most striking characteristic in the internet
environment. In this regard, the Yahoo! Auction cases are sometimes criticized for
disregarding the concept of territory: “the French court was trying to bind the
whole world.” 59 The critics also describe these cases as leading to “a lowest common
denominator world where the most restrictive rule of any country would
govern all speech in the Internet.” 60 For the following reasons, however, it is submitted
that the criticism is not accurate.
The concrete orders by the Tribunal de Grande Instance vis-à-vis Yahoo! Inc.
in Yahoo! Auction cases (1a) and (1b) show that their decisions are based on the
clear sense of territory. For example, in the Yahoo! Auction case (1a), Yahoo! Inc.
was specifically ordered “to take all necessary measures to dissuade and render
impossible any access [from French territory] via Yahoo.com to the Nazi artifact
auction service and to any other site or service that may be construed as constitut-
56 See the formulation in the S.S. Lotus case, supra note 18.
57 See supra notes 9-13.
58 Töben case (BGH), supra note 50, at D.II.4.
59 Ralf Michaels, Territorial Jurisdiction after Territoriality, in Globalisation and Jurisdiction
(Piet Jan Slot & Mielle Bulterman eds. 2004), p. 117.
60 Caitlin T. Murphy, International Law and the Internet: An Ill-Suited Match, 25 Hastings Int’l
& Comp. L. Rev. (2002), pp. 415-16. See also Daniel Arthur Laprès, L’exorbitante affaire Yahoo, 129
Journal du droit international (2002), pp. 975-99.

In.Law | 6 (2006) | 297
ing an apology for Nazism or a contesting of Nazi crimes.” 61 Faced with this order,
Yahoo! Inc. argued that filtering of users located abroad in order to comply with
the order was technically difficult, if not impossible. The panel of experts that
conducted a feasibility study concluded, however, that such filtering was technically
possible: it was possible to block 70% of the access from France to the sites
in question. 62 The panel of experts further believed that the blocking rate would
be as high as 90% if the website required the internet users to declare their location.
Given this assessment, the Tribunal de Grande Instance reaffirmed its earlier
order. 63 The court orders that assume the use of this filtering technique constitute
neither the acceptance of the absence of territories in cyberspace nor the interference
into world-wide activities of Yahoo! Inc. 64 On the contrary, they reflect
a sense of territory in cyberspace, a simulation of the traditional environment in
which the established principles of jurisdiction could function. The sense of territory
of the Tribunal de Grande Instance is also clear in the expressions it uses:
Yahoo! Inc. is ordered “to prevent surfers calling from France from viewing these
[anti-Semitic] services on their computer screen”; “to identify the geographical
origin of a visiting site from the caller’s IP address, which should enable it to
prevent surfers calling from France . . . from accessing services and sites which[,]
when displayed on a screen installed in France[,] . . . is liable to be deemed an offence
in France and/or to constitute a manifestly unlawful trouble [under French
law]”; and “to take all measures to dissuade and make impossible any access by a
surfer calling from France to disputed sites and services of which the title and/or
content constitutes a threat to internal public order.” 65 This effort of restraining
the scope of the orders is indeed very consistent in French jurisprudence. Since
the Yahoo! Auction case (1a), the orders issued vis-à-vis internet companies abroad
61 Yahoo! Auction case (1a), supra note 35. The translation of the order is taken from the Yahoo!
v. LICRA case (2006), supra note 32.
62 Yahoo! Auction case (1b), supra note 37. Details of this expert opinion are presented in Mur-
phy, supra note 60, pp. 418-20.
63 Yahoo! Auction case (1b), supra note 37.
64 For the expression of such a concern, see Horatia Muir Watt, Yahoo! Cyber-Collision of Cultures:
Who Regulates?, 24 Mich. J. Int’l L. (2003), p. 692; Mark S. Kende, Yahoo!: National Borders
in Cyberspace and Their Impact on International Lawyers, 32 N.M. L. Rev. (2002), p. 8; Andreas
Manolopoulos, Raising “Cyber-Borders”: The Interaction Between Law and Technology, 11 Int’l J.L. &
Info. Tech. (2003), pp. 43-44.
65 The translation with these emphases is taken from the Yahoo! v. LICRA case (2006), supra
note 32.

298 | In.Law | 6 (2006)
under similar circumstances have never required the complete removal of messages
or items on the website which was deemed to be illegal under French law.
Instead, these companies were required solely to take measures that would block
access to the website in question from France. 66
The municipal courts in the cases examined do not show any sign to seek
innovations in internet cases because of the specificity of cyberspace. Instead, the
indispensable foundation of the established principles of jurisdiction, the concept
of territory, is maintained. Simulating territories and borders in cyberspace by
filtering techniques has been discussed under the term “zoning” by lawyers. 67 It
appears to be a realistic option to deal with internet cases, as witnessed by the
increasing use of filtering techniques by both governments and private firms. 68
4.2. Reduced Significance of Distinction between the Objective Territorial Principle
and the Effects Doctrine.
The first observation concerning the internet cases was that they do employ
the established principles of jurisdiction. On a closer examination, however, the
way they resort to the objective territorial principle, albeit tacitly, raises a question.
In fact, a number of commentators of the Yahoo! Auction cases consider the
reasoning in these cases to be a variant of the effects doctrine, rather than an
example of the objective territorial principle. 69 Of course, in the cases examined,
the occurrence of one or more constituent elements of the offence in the territory
rhetorically played a decisive role in the justification of jurisdiction. This is the
language of the objective territorial principle, not of the effects doctrine. The line
between the two justifications in internet cases, however, is a very fine one. In
the example of the Yahoo! Auction cases, on one hand, one may accept the characterization
of the situation by the French courts, which considered the services
66 For an example, see Ordonnance de référé, rendue le 20 avril 2005, Tribunal de Grande Instance
de Paris, No RG: 05/52674–05/53871 (one of the orders in the so-called AAARGH case).
67 See Lawrence Lessig & Paul Resnick, Zoning Speech on the Internet: A Legal and Technical
Model, 98 Mich. L. Rev. (1999), pp. 395-431, though the focus of their discussions is a zoning
within the United States.
68 Michael Geist, Cyberlaw 2.0, 44 B.C. L. Rev. (2003), pp. 332-33; Jack L. Goldsmith, Unilateral
Regulation of the Internet: A Modest Defence, 11 Eur. J. Int’l L. (2000), pp. 140-41.
69 Uta Kohl, Eggs, Jurisdiction, and the Internet, 51 Int’l & Comp. L.Q. (2002), p. 577; Julie
L. Henn, Targeting Transnational Internet Content Regulation, 21 B.U. Int’l L.J. (2003), p. 173;
Manolopoulos, supra note 64, pp. 56-57. See also Murphy, supra note 60, p. 413.

In.Law | 6 (2006) | 299
of Yahoo! Inc. as an act of making information available on computer screens in
French territory. On the other hand, it is also possible to characterize the same
situation as an effect of the uploading and maintenance of a website abroad that
is accessible to internet users in French territory. Nothing in the Yahoo! Auction
cases shows convincingly that the former is a more accurate characterization of
the situation than the latter. This explains why some commentators prefer to see
the reasoning in these cases as a disguised effects doctrine.
This gray zone between the objective territorial principle and the effects doctrine
itself is not a new theoretical challenge in the internet environment. There
is a margin to choose between the two characterizations, and hence between the
two bases of jurisdiction, even in cases in real space. 70 What is arguably new in
the internet cases is that whichever characterization a municipal court chooses
to rely on, the extent of jurisdiction justified will be the same. In anti-trust cases
discussed previously, the two justifications, the objective territorial principle and
the effects doctrine, were thought to place very different limits on extraterritorial
jurisdiction in certain cases. This is no longer true in cases involving the internet.
The extent of extraterritorial jurisdiction justified by the objective territorial principle
seems to be as limitless as the one justified by the effects doctrine. 71
Possible remedies to re-establish limits on jurisdiction in internet cases have
been proposed by commentators. One of the remedies proposed can be described
as an effort to re-establish the distinction between the objective territorial principle
and the effects doctrine. The cause for the loss of the limiting power of the
former resides in the difficulty of a meaningful distinction between an act and its
effect in the internet context: the act of letting a message or information be seen
abroad; the effect that it can be viewed abroad. Thus, a number of commentators
look for a criterion that can re-establish this distinction. The most frequent
suggestion appears to be a distinction based on the intention of those who create
or maintain a website: an act is an intended conduct, whereas the effects of the
act can be unintended. In the Yahoo! Auction cases, however, the consideration of
intention did not lead to the limitation of jurisdiction. In the Yahoo! Auction case
(1a), the unintentional character of the act in question was explicitly recognized
70 For example, some authors see the characterization of the implementation of a cartel agreement
in the Wood Pulp case, supra note 23, as an example of the effects doctrine (E.g., Anthony
Aust, Handbook of International Law (2005), p. 47).
71 See Shōtaro Hamamoto, ‘Yafū! Ōkushon Jiken [Yahoo! Auction Cases]’, in Hanrei Kokusaihō,
Cases of International Law, pp. 94, 96 (Yoshirō Matsui ed., 2nd ed. 2006, in Japanese).

300 | In.Law | 6 (2006)
by the court, 72 but it did not prevent the court from affirming jurisdiction. In the
subsequent cases (1b), (2a) and (2b), the courts characterized the act of letting a
message or information be seen in France as intentional. In the Töben case, the
fact that the web pages in question were written in English 73 did not prevent the
German Federal Court from affirming jurisdiction, even though its implication
could be that the targeted audience was not the internet users in Germany. 74
When the fact of making information available on the internet is taken as a sign
of an intention to display it to the entire world, the criterion of intention of the
author or the internet service provider cannot provide much limit on the exercise
of jurisdiction.
Another possible remedy to the limitless jurisdiction in the electronic environment
is a technique developed and applied by the US courts in their application
of the effects doctrine in the anti-trust cases in 1970s. In some cases, they
tried to take into account the interests of the States concerned, balanced the US
interests against these interests, and made efforts to assess the reasonableness of
exercising jurisdiction in the given cases. 75 The technique was called a balancing
test or a principle of reasonableness. 76 Though this balancing test could be criticized
on various grounds, 77 it did give the US courts a chance to consider the impact
of the extraterritorial exercise of jurisdiction. 78 A number of commentators
of internet cases also support the approach of balancing or reasonableness. 79 In
72 See the previous citation, supra note 35.
73 This is attested both in the Töben case (LG), supra note 49, and the Töben case (BGH),
supra note 50.
74 See Uta Kohl, The Rule of Law, Jurisdiction and the Internet, 12 Int’l J.L. & Info. Tech.
(2004). p. 374.
75 Timberlane Lumber Co. v. Bank of America, 549 F.2d 597 (1976); Mannington Mills v. Congoleum
Corporation, 595 F.2d 1287 (1979).
76 See also Restatement (Third) of Foreign Relations Law of the United States (1987), in which
this was not a matter of comity, but of a legal principle of reasonableness.
77 Rosenthal & Knighton, supra note 3, pp. 26-28; Bowett, supra note 22, pp. 21-22.
78 Note, though, that the Hartford Fire Insurance case, supra note 20, is considered by many
authors to indicate the abandonment of the reasonableness/balancing approach. Harold Hongju
Koh, International Business Transactions in United States Courts, 261 Recueil des cours (1996), pp. 71-
75; Phillip R. Trimble, The Supreme Court and International Law: The Demise of Restatement Section
403, 89 Am. J. Int’l L. (1995), pp. 53-57.
79 Elizabeth Longworth, The Possibilities for a Legal Framework for Cyberspace, in The International
Dimensions of Cyberspace Law (Teresa Fuentes-Camacho ed. 2000), pp. 33-34; Ellen S.
Podgor, International Computer Fraud: A Paradigm for Limiting National Jurisdiction, 35 U.C. Davis
L. Rev. (2002), pp. 315-16.

In.Law | 6 (2006) | 301
the Yahoo! Auction cases and the Töben case, such an approach would have led the
courts of France and Germany, respectively, to examine how far the application of
their law would affect the priorities in the United States or Australia, which are
different from those of France and Germany. 80 However, neither a balancing test
as a matter of comity nor the principle of reasonableness as a legal obligation were
discussed in any of these cases. On the contrary, the Tribunal de Grande Instance
in the Yahoo! Auction case (2a) seems to reject the idea when it states that the legality
of the conduct in the United States did not matter: France had jurisdiction
over the alleged offence, “even if the alleged offence is not criminalized by the
penal legislation of the country of origin of the author of the alleged facts, or of
the country where the host of the contested site is geographically located.” 81 The
Cour d’Appel in the Yahoo! Auction case (2b) even expressed a concern that the use
of such limiting techniques of jurisdiction would promote a kind of tax-haven
phenomenon of hate speech. 82
The objective territorial principle is indistinguishable from the effects doctrine
in internet cases in that the former also seems to justify extraterritorial jurisdiction
infinitely. This reduced significance of the difference between the two
justifications of jurisdiction means a loss of meaningful limitation on extraterritorial
jurisdiction. In the cases discussed, however, the problem of finding an
appropriate limit to the exercise of jurisdiction in internet cases is not addressed.
This is arguably a new challenge in cyberspace.
5. Conclusion.
This article examined how the principles of jurisdiction are employed in cases
involving internet in municipal courts. The preliminary survey of the established
principles of jurisdiction offered two frames of reference to this examination: a
general sense of requirement that there must be a sufficient connection between the
offence and the State exercising jurisdiction; a concern for limits of extraterritorial
jurisdiction. The specific task of the article was to find out how these features, as
80 See Andreas F. Lowenfeld, Conflict, Balancing of Interests, and the Exercise of Jurisdiction to
Prescribe: Reflections on the Insurance Antitrust Case, 89 Am. J. Int’l L. (1995), p. 51.
81 Yahoo! Auction case (2a), supra note 42, at II.1.
82 Yahoo! Auction case (2b), supra note 42.

302 | In.Law | 6 (2006)
well as the concrete principles of jurisdiction, appear in the cases before the courts
when these cases involve internet and jurisdiction of a multiple States.
First, the overall tendency in internet cases examined in this article is to
affirm the established principles of jurisdiction, concretely, the objective territorial
principle, and more generally, the requirement of a sufficient connection. They also
showed the willingness of the courts to maintain a sense of territory in internet
cases, so that the well-established principles of jurisdiction could function in a
simulated environment resembling the traditional environment. The cases showed
no attempt to deviate from the established principles of jurisdiction, or to invent a
new rule of jurisdiction for internet.
Second, however, with regard to the limits of jurisdiction, the functions of
these established principles were not unaffected. In previous cases as opposed to
cases of internet, one important function of the objective territorial principle in
comparison to the effects doctrine was thought to be the limitation it placed on
the assertion of extraterritorial jurisdiction. In the internet environment, the same
objective territorial principle appears to be incapable of providing the limitation
on jurisdiction. In the cases examined in this article, there was no clear recognition
of this change in the objective territorial principle in the internet cases.
In spite of this and other theoretical challenges against the existing legal
framework produced by internet, the first step adopted by States in this particular
field has so far been the most traditional solution in international law: a treaty.
The Cybercrime Convention entered into force in 2004. 83 It remains to be
seen how successful this Convention and its Protocol 84 will be in attracting a
wide participation of States and providing practical solutions to some of the
jurisdictional issues in cyberspace.
Mika HayasHi
Associate Professor of International Law
GSICS, Kobe University
83 Convention on Cybercrime, European Treaty Series No. 185. The present author examined
the jurisdictional provisions of this Convention in Hayashi, supra note 7.
84 Protocol on the Criminalization of Acts of a Racist and Xenophobic Nature Committed
Through Computer Systems, European Treaty Series No. 189. It entered into force in March
2006.