In general,
courts applying the rules of personal
jurisdiction to
cyberspace have required ‘something more’ than mere electronic
contacts to support an exercise of jurisdiction. In addition to electronic contacts, there must be some act purposefully directed towards the forum state. Thus, courts have focused on the purposeful availment prong of the due process, minimum contacts test. Though, in exceptional cases, courts have conferred jurisdiction in the absence of any connection beyond a web site, this is unlikely to be sustained in the long run. First, it is, impossible to enforce decisions of this nature in every case, considering that often the web site owner may be in a hostile country, or in a jurisdiction that simply refuses to recognize the jurisdiction of the court issuing the original decree. Second such an approach would cause considerable inconvenience to any large-scale form of e-business, and could contribute to stagnation of the Internet – which is something that should be avoided at all costs.
The issue of jurisdiction cannot be solved by any objective standard as to contact, but rather requires an analysis of both the quality and quantity of Internet contacts. This would involve the examination of several components, for example the number of hits a web site receives, and the number of forum state citizens accessing the site. However all hits are not of equal weight for jurisdictional purposes, so courts and commentators need to develop a hierarchy of different internet contacts in order to evaluate the totality of a defendant’s contacts with a forum.
Suggestions for a new system One of the suggestions that has been made towards the
resolution of this rather troublesome problem, is the evolution of a new and entirely independent rules to govern jurisdiction on the Internet.<1> The regulatory structures should treat cyberspace as a distinct for purposes of legal analysis. This suggestion originates from the conception that cyberspace has its own sovereign jurisdiction by developing a uniform law governing cyberspace transactions, it will be much easier to determine which rules regulate one’s online activities, rather than deciding which territory’s laws apply. The new question that arises from this suggested approach is who is to develop and enforce these rules. It is suggested that the Internet community can, ‘develop its own effective legal institutions.’ The proponents of such a system suggest that since the Internet was implemented through a system of self-governance, those persons can establish a system to govern themselves. Yet, they concede that determination of those who would have the ‘ultimate’ right to control the policies remain uncertain.
Another criticism of this suggestion is its sheer impracticability. Ultimately, courts must decide jurisdiction if only to regulate their sphere of influence and decision-making power. An independent set of rules, ignoring geographical factors, is unlikely to be workable in this context.
Another suggestion has been the creation of some mechanism for alternative dispute resolution.<2> In this regard, there has emerged the Virtual Magistrate Project. Like other
arbitration schemes, the Virtual Magistrate must obtain jurisdiction over parties by consent. This
consent can be obtained in at least two ways, consent by explicit agreement and implied in fact consent. Under this first method, parties may manifest consent entirely through electronic means. The implied in fact agreements would involve consenting to jurisdiction through a term of the contract between the service providers and subscribers. As a result, once an event had been noticed for Virtual Magistrate Resolution, the service provider could compel participation. If successful, the Virtual Magistrate would be a big step toward the establishment of a cyberspace jurisdiction.
The review of decisions seems to indicate that any active attempt to utilize the World Wide Web to reach itts vast audience will likely subject the publisher to a lawsuit in a distant forum. The popularity of interactive sites enabling the browsers to do business with the publisher from their desktops alone will almost certainly provide a basis for jurisdiction in the plaintiff’s chosen court. A website coupled with a toll-free number will almost certainly indicate an intention to reach the widest possible market also permitting a court to exercise jurisdiction over the defendant. The effect of this would be to force website owners to attempt to restrict access to their sites to local persons, thus affecting the global reach of the Internet.
Parties to a contract may select a preferred forum, or a preferred choice of law as a part of their agreements with each other.
<1>One problem is that physical borders can no longer function as ‘signposts’ to individuals since users are unaware of the existence of any borders in cyberspace. Analysts suggest that as regulatory schemes evolve to govern Internet activity , it will be easier for the user to know which rules apply to their activities.
<2> Recent online experiments have brought alternative dispute resolution to the Internet. In certain modes of dispute resolution, such as mediation and ombudsman processes, personal jurisdiction does not matter because coercion plays no role in the effort to resolve disputes. Arbitration is different, as arbitration awards are meant to be enforceable by coercive powers if necessary. While coercion is available at the end stage of dispute resolution, it is not available at the initial stage, when personal jurisdiction is at issue in arbitration systems. The source of jurisdiction in arbitration is consent.
More abstracts about the Applicable law in jurisdiction issues over the Internet