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

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.