Communications of the ACM

Law and technology

Why Less Is More When It Comes to Internet Jurisdiction

By Michael Geist
Communications of the ACM, January 2017, Vol. 60 No. 1, Pages 26-28
10.1145/3018992
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In the days before widespread broadband, social networks, and online video, a French anti-racism group launched the Internet lawsuit heard round the world. In late 1999, the International League against Racism and Anti-Semitism—or Ligue Internationale Contre le Racisme et l'Antisémitisme (LICRA) in French—filed suit against then-Internet giant Yahoo, seeking a court order to compel the company to block French residents' access to postings displaying Nazi memorabilia. While Yahoo already blocked access to content on its local French site (http://www.yahoo.fr), the lawsuit targeted the company's primary site based in the U.S. (http://www.yahoo.com).

The case attracted immediate interest since it struck at the heart of one of the Internet's most challenging issues—how to bring the seemingly borderless Internet to a bordered world. Given that the Internet has little regard for conventional borders, the question of whose law applies, which court gets to apply it, and how it can be enforced is seemingly always a challenge.

Striking the right balance can be exceptionally difficult: if courts are unable to assert jurisdiction, the Internet becomes a proverbial "wild west" with no applicable law. Conversely, if every court asserts jurisdiction, the Internet becomes overregulated with a myriad of potentially conflicting laws vying to govern online activities.

The temptation for politicians, courts, and regulators is invariably to assert jurisdiction over online activities regardless of the impact on other countries or the potential conflict with different rules. Yet experience suggests that when it comes to Internet jurisdiction, less is often more. While few still argue the law does not apply online, exercising restraint in asserting jurisdiction is likely to increase global respect for the law and better ensure enforcement of judicial decisions.

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Where It All Began: The Yahoo France Case

The Yahoo France case sparked nearly six years of litigation, numerous legal briefs, and much hand-wringing from the Internet community. The initial French court ruling sided with LICRA and ordered Yahoo to do what it reasonably could to ensure that French users could not access content that was unlawful in France.^a The judge was persuaded at that time that Yahoo was capable of identifying when French users accessed its site (it provided targeted ads to such users) and that his order would be limited to Yahoo's activities in France.

Yahoo was unsurprisingly critical of the decision, but rather than appealing the French decision, it chose to let the decision stand and to launch a lawsuit of its own in the U.S. courts, seeking an order that the French decision could not be enforced on its home turf.

The 9^th Circuit Court of Appeals, a U.S. appellate court, ultimately issued a 99-page split decision that asserted jurisdiction over the dispute but declined to provide Yahoo with its much-desired order.^b The U.S. decision turned on the fact that Yahoo had independently removed much of the offending content, suggesting that the company was not being forced to block legal materials.

On the question of jurisdiction, the majority of the court determined that it could assert jurisdiction over the case despite minimal connections to the U.S. Indeed, in this case the contacts were limited to a cease and desist letter demanding that Yahoo comply with French law, the formal delivery of the lawsuit, and the mere existence of the French court order.

The French and U.S. courts both demonstrated that the default in most Internet jurisdiction cases is to assert jurisdiction, even if doing so is likely to lead to conflicting decisions, thorny conflict of law issues, and regulatory uncertainty.

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Is Internet Publication Anywhere or Everywhere?

The Yahoo France case may have been the first major Internet jurisdiction case to attract global attention but it was by no means the last. Several years after the Yahoo decision, the Washington Post found itself at the center of a Canadian case that combined Internet jurisdiction principles with the global availability of media publications.

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The broader implications of the ruling strike a chord with those concerned with legal overreach on the Internet.

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The case concerned a defamation suit launched against the Post by Cheickh Bangoura, a former U.N. official. Bangoura had moved to the Province of Ontario several years prior to the lawsuit, but was stationed in Kenya in 1997 in a U.N. Drug Control Program when the Washington Post featured several articles accusing him of misconduct and mismanagement.

Bangoura sued the Washington Post in the Ontario courts in 2003, claiming the articles were untrue yet remained available on the Washington Post website and therefore accessible to residents in Ontario. The newspaper sought to have the case dismissed, arguing the Ontario courts should not assert jurisdiction over the matter since there was no real and substantial connection with the province.

In a surprise decision, an Ontario judge denied the Washington Post's motion, ruling the paper "should have reasonably foreseen that the story would follow the plaintiff wherever he resided."^c

Dozens of global media organizations banded together to support the Washington Post in its appeal. The Ontario Court of Appeal sided with the newspaper, noting that "the connection between Ontario and Mr. Bangoura's claim is minimal at best. In fact, there was no connection with Ontario until more than three years after the publication of the articles in question."^d

Given that analysis, the court concluded that "it was not reasonably foreseeable in January 1997 that Mr. Bangoura would end up as a resident of Ontario three years later. To hold otherwise would mean that a defendant could be sued almost anywhere in the world based upon where a plaintiff may decide to establish his or her residence long after the publication of the defamation."

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The New Internet Jurisdiction Storm: Google

The Yahoo France and Bangoura cases provided early hints at the challenge of reconciling easy access of content from global media companies through the Internet with differing legal standards. Those cases foreshadowed an even larger legal battle: the ability for a single country or jurisdiction to limit global access to search results from Google.

Among the recent cases, perhaps the best known involves European privacy law. In 2014, the European Court of Justice ruled on the "right to be forgotten," which requires Google to remove links from its search index to certain content. The decision is grounded in European privacy law and was initially limited in application to the European Union. Yet in recent months, the global impact of the decision has become increasingly apparent.

The decision arises from a 2010 complaint by a Spanish man who was upset to find that searching his name in Google yielded links to a 1998 announcement in a newspaper on a real estate auction designed to generate proceeds to pay back social security debts. The information was both factual and readily accessible online, yet the man felt the now-outdated information was a violation of his privacy.

The court ruled that it could assert jurisdiction over the search giant, despite the fact that the processing of the data took place outside of Spain.^e In addition to asserting jurisdiction over Google, privacy authorities expanded the scope of the ruling by demanding the removal of links from all Google search indices, not just those in Europe. While Google initially resisted, the company acquiesced in early 2016, announcing that it would block search results from all Google domains where the search originated in Europe. The extension of the ruling marks an expanded Internet jurisdiction approach, with the effective application of European law to search results around the world.

A similar question sits at the heart of a Canadian case involving Google that was heard by the Supreme Court of Canada in December 2016. The case started in the Province of British Columbia, where courts were asked to consider whether they could assert jurisdiction over Google and how far to extend an order to remove links from its search index. The Canadian court orders have thus far intentionally targeted the entire Google database, requiring the company to ensure that no one, anywhere in the world, can see the search results.^f

The broader implications of the ruling strike a chord with those concerned with legal overreach on the Internet since if a Canadian court has the power to limit access to information for the globe, presumably other courts do as well. While the Canadian courts did not grapple with this possibility, what happens if a Russian court orders Google to remove gay and lesbian sites from its database? Or if a Saudi Arabian court orders it remove Israeli sites from the index? The possibilities are endless since local rules of freedom of expression often differ from country to country.

In fact, the lower court rulings provided the sense that the courts felt that their reach needed to match Google's global footprint. While there is much to be said for asserting jurisdiction over Google—if it does business in Canada, then Canadian law should apply—attempts to extend blocking orders to a global audience could lead to a run on court orders that target the company's global search results.

That would leave two possible problematic outcomes: Google would selectively decide which court orders it wishes to follow or local courts would begin deciding what the rest of the world can access online. Either way, the overreach of the courts could lead to legal conflicts online and potential suppression of freedom of speech on the Internet.

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In Search of an Internet Jurisdiction Solution

The Internet is often characterized as a "wild west" where laws cannot be easily applied. Yet the danger of extra-territorial application of court decisions such as those involving Google is that it encourages disregard for the rule of law online, placing Internet companies in the unenviable position of choosing the laws and court orders they wish to follow. Moreover, if courts or companies openly disregard foreign court orders, legal certainty in the online environment is undermined.

Years of litigation starting with the Yahoo France case suggest there are no easy answers. However, any solution likely lies in developing standards that encourage comity and mutual respect for the applicability of the law on the Internet by ensuring that national sovereignty is respected. Indeed, a recent 2^nd Circuit Court of Appeals decision denying a government demand that Microsoft disclose email messages and private information hosted on a server in Ireland points to the fact that courts may be awakening to the need to establish limits on the jurisdictional scope of their orders.

The emerging approach suggests that courts should only issue orders with substantial extra-territorial effect where it is clear that the underlying right and remedy are also available in affected foreign countries. Global takedown orders or decisions with substantial impact in other jurisdictions is likely to enhance the perception of the Internet as a wild west where disregard for the law is common.

For that reason, where there is uncertainty about the legal rights in other jurisdictions, courts should exercise restraint, recognizing that less may be more. Indeed, respect for the law online may depend as much on when not to apply it as do efforts to extend the reach of courts and court orders to a global Internet community.

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