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  • Print publication year: 2009
  • Online publication date: June 2012

11 - Jurisdiction in cyberspace

Summary

When a radically new situation is presented to the law it is sometimes necessary to think outside the square … this involves a reflection upon the features of the Internet that are said to require a new and distinctive legal approach.

Cyberspace is an illusion. There is no such place. Many terrestrial norms do not and cannot apply to such a fictitious construct. Nevertheless cyberspace users perceive metaphorical chat rooms, folders, files, shops, libraries and so forth. They live digital lives with digital personas in ‘places’ such as Second Life and Facebook. The reality is that each step of the digital experience is rooted terrestrially. Traditional legal principles are applicable to the majority of electronic commerce disputes. Nevertheless, the operation of electronic commerce in cyberspace results in new circumstances to which legal jurists cannot readily apply established legal rules.

The borderless nature of the internet often hides or disguises the origin of particular websites and corresponding information. Questions sometimes arise as to the country or state whose courts have jurisdiction to adjudicate on a matter, and as to which law is to be applied. Courts also have to determine issues such as where conduct occurs – at the computer, the server, the place of business or residence or somewhere else? – and thus which time zone applies. This area of law is referred to as conflict of laws or private international law, and its principles are well established.

Further reading
,Anonymous, ‘A “category-specific” legislative approach to the internet personal jurisdiction problem in US law’, (2004) 117 Harv L Rev1617.
Cohen, Debra, ‘The single publication rule: One action, not one law’, (1966) 62 Brooklyn Law Review921.
Nygh, Peter and Davies, Martin, Conflict of laws in Australia, 7th edn, LexisNexis, Sydney, 2002
Kirby, M, ‘Privacy in cyberspace’, (1998) UNSWLJ 47
Williams, G, ‘Venue and the Ambit of Criminal Law’, Part 3, (1965) 81 Law Quarterly Review518