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

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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.
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