Document Type

Article

Disciplines

International Law

Abstract

The global medium of the Internet presents global challenges. Many of the challenges emerging in cyberspace are straightforward and demand clear, noncontroversial solutions. However, an increasing number of Internet controversies implicate fundamental values, such as freedom of speech, and concern multiple sovereignties.' Internet controversies of this nature produce disagreement between the various states involved and threaten the values at issue. Disputes involving value clashes and conflicting state authority are particularly prevalent in Internet content regulation cases.

Internet activities are governed by multiple jurisdictions that have the potential to overlap and conflict.2 There is significant debate regarding the scope of a state's jurisdiction over Internet material and a state's ability to exercise authority over authors of online information. Opponents of expansive state regulatory authority argue that "under the objective territorial principle, a court cannot assert extraterritorial jurisdiction over a foreign national simply on the basis that the foreign national's website contains images or data that violate the forum state's laws and that are accessible to users within the forum state."3 Despite these contentions, exercises of extraterritorial jurisdiction in Internet content cases have already occurred, supported by assertions that "customary international law ... permits a nation to apply its law to extraterritorial behavior with substantial local effects."

Western European states were the first to exercise expansive authority over online activities by subjecting foreigners to domestic laws. Germany set the precedent for state action against foreign citizens by prosecuting Frederick Toben, an Australian national, for online Holocaust denial.' France, Italy,' and Canada followed Germany's example. Australia exercised even more expansive authority and delivered a defamation judgment against a foreign respondent whose contact with the country was limited to defamatory Internet material accessible within Australia.

While some jurisdictions endorsed and adopted Germany's approach, other states were extremely skeptical of Germany's expansive exercise of authority. For example, an American court refused to hear an online defamation controversy similar to the Australian case because it did not have jurisdiction.

Questions regarding the scope of a state's ability to regulate Internet content highlight the conflicts between applying the traditional international rules of jurisdiction and the results of applying these regimes to Internet content regulation. Antonio Cassese, an international law scholar, has noticed that "international law is a realistic legal system. It takes account of existing power relationships and endeavors to translate them into legal rules."" In discussing the application of traditional principles to the Internet, University of Chicago Law Professor Jack L. Goldsmith has noted that "there is nothing extraordinary or illegitimate about unilateral regulation of transnational activity that affects activity and regulation in other countries."' 2 While Professor Goldsmith's assertions are absolutely true, Internet content regulation raises another question, namely whether Internet jurisdiction should develop to sustain pervasive, far-reaching, extraterritorial regulation or should develop to limit such jurisdiction. This question is especially important in speech-related controversies.

This article examines cases from the international arena. The discussion is not deliberately limited to particular states, but the United States and Germany are the focus of the comparative analysis as representatives of two different legal systems. The analysis of the cases focuses on the current legal debate over jurisdiction. This article also offers suggestions on the possible limits of extraterritorial jurisdiction in Internet content cases and demonstrates the necessity for states to accept the Internet as a borderless medium. The discussion argues that states should keep their judicial activities within reasonable limits and should limit the application of the effects principle in determining jurisdiction because territorial and active nationality principles provide adequate and sufficient jurisdiction to judicially deal with objectionable Internet content.

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