Intermix Media ,  F. The connection between the forum and the defendant;.
Unfairness to the defendant in assuming jurisdiction;. Unfairness to the plaintiff in not assuming jurisdiction;. Involvement of other parties to the suit;. Whether the case is interprovincial or international in nature; and. Comity and the standards of jurisdiction, recognition and enforcement prevailing elsewhere. Looking toward the United Kingdom , Flowers Inc v. Hearing the matter, the Court of first instance and the Court of appeal both held that access to a website alone could not automatically confer jurisdiction on any Court, especially in cases related to trademarks.
Back home, the judgment first discusses the concept of jurisdiction in Intellectual Property in India in general and refers to the famous Dhodha House case and also a more recent decision of Dabur Industries pronounced by Supreme Court.
The Court briefly discussed two cases both pronounced by Single Judge Benches. Casio India Co. Ashita Tele Systems Pvt. Secondly, India TV v. India Broadcast Live , laid down that where a website is interactive the level of interaction between the user and the website being relevant and where evidence was produced to indicate that the target audience and large consumer base was India , the Court could exercise jurisdiction to adjudge the matter.
Most interestingly, the Court laments the lack of clarity on the part of the Parliament that despite knowledge evidenced through the provisions of the IT Act , fails to incorporate the dynamism of technology in the updation of laws. Since the Court found the Single Judge Bench decisions of both Casio as well as India TV disparate in its reasoning, the Court ends on a promising note, in the hope to find an answer to this issue by referring the same to the Division Bench on the following issues:.
Once again, Justice Bhat has through a thorough understanding of the evolving law, demonstrated what is required of Indian legislation- dynamism and an open mind to incorporate certain changes that may be necessary considering the trend of cases globally. One such change recommended by His Lordship is an amendment to the statute to provide for such cases. In this regard however, I would respectfully differ. I believe that provisions such as Section 20 of the CPC, Section of the Trademark Act and Section 62 of the Copyright Act act as a founfation on which the dynamism of technology and other such developments can be supplemented through case law.
Thus, through an analysis of decisions from various jurisdictions as well as a clear cut understanding of what Indian law lacks today- clarity- Justice Bhat has, in my personal opinion, has made a step in the right direction by referring the matter to a larger bench. Herein, the Court was dealing with the most basic question of jurisdiction of the Court- which when transposed into the world of global connectivity on the world wide web can and indeed has posed several problems.
Therefore, referring the matter to a larger bench will hopefully resolve the issue, with any judgment in this regard in the future serving as precedence. On a tangential note , H arold Wegne r has, as usual, pointed out another most interesting decision to us related to perosnal jurisdiction in patent infringement. The case of Medical Solutions v. Seems like the Courts across the globe have had hit to the Civil Procedure books and go back to the basics!
This case is clear isolated case, Any trade mark or copyrights act are given only to the country under which they are specified. In international copyrights specially in publications the company or the firm should have been registered independantly in each country just like in patent law. If publication occurred in Victoria then jurisdiction would be satisfied, Victorian law would apply and forum non conveniens arguments would be substantially weakened. Crucial to determining where the cause of action arose was the question of whether the law should be developed, adapted or changed to better facilitate Internet life.
Kirby J explained at a general level that the reasons why the Court might restrain from reformulating the common law in deference to legislative action were based on considerations such as certainty, economic stability, the retrospective nature of the decision, the need to consider social data further and ultimately that it is the legislature which is the primary law-making institution. Kirby J then proceeded to define the Internet and the World Wide Web and to highlight the difficulty in controlling access to information in such a distributed network.
Moving to dispose of the issues before him, Kirby J held that service had been duly executed under r 7. Kirby J then went on to hold that, because Victoria was where the tort had occurred, Victorian law was the applicable law. In concluding his judgment, Kirby J sought to further rationalise his counter-intuitive reasoning:. Ultimately, it was the international community and national legislatures that needed to usher in change in this dynamic area:. His Honour concluded by saying that Victoria was clearly an appropriate forum for this litigation.
In summary, the High Court unanimously dismissed the argument by Dow Jones that the radically new and ubiquitous nature of the Internet required the Court to overturn settled law on the publication of defamatory material. All judges agreed, according to that settled law, that publication had occurred when the material was made comprehensible; that is, at the point of downloading. Once publication in Victoria had been established, the fact that Gutnick lived in Victoria and was seeking damages for harm done in Victoria dictated the application of Victorian law as governing law and the rejection of any claim of forum non conveniens.
The essence of the decision is that publication occurs wherever the Internet can be accessed.
First, what they were deciding was limited to the scenario before them, in particular the fact that Gutnick lived in Victoria and was suing in Victoria for damage occurring in Victoria and had undertaken not to seek damages anywhere else. Second, the impact of their judgments would only be felt in a given defamation suit in jurisdictions in which the plaintiff had a reputation and would only be of value if the judgment could be enforced where the defendant held assets.
In Gutnick , reputation in Victoria was present but doubts remain about the ability to enforce any future judgment in the United States for reasons of offending the First Amendment right to free speech. The Gutnick decision provides further definition to Australian cyberlaw on jurisdictional issues and stimulates debate about the further development of defamation law. Reasonableness, Collins suggests, might be determined in light of whether the plaintiff has a substantial reputation in the forum, whether the publisher knew or ought to have known this, the steps taken by the publisher to ensure the publication was not actionable in the forum, the extent to which the publication occurred in the forum and the extent to which the plaintiff is the subject of the publication.
The exercise of court jurisdiction in the Internet age
They state that a court is competent to determine a claim in defamation arising from the content of an Internet posting if the court is in a forum which is any of the following:. The Durban Principles appear heavily weighted in favour of the publisher and may not adequately acknowledge the interests of the plaintiff. In terms of Internet jurisdiction cases more generally, the Gutnick decision suggests that the High Court of Australia and the United States superior courts of appeal are moving in different directions.
In order to better understand the diverging approaches, an appreciation of the United States approach to personal jurisdiction is required. The primary principle is that an individual should not be subject to judgment in a jurisdiction in which he or she has no meaningful contact. In Zippo , the Court explained that a finding of jurisdiction was contingent upon the nature of the website and sought to employ a sliding scale test.
A fully interactive website would found jurisdiction while a passive website used for mere advertising without more would not. In essence, this test provides that where an act is done intentionally, has an effect within the forum state and is directed or targeted at the forum state, then jurisdiction will be satisfied.
This approach was evidenced in MGM ,  where a Californian court assumed jurisdiction in a case relating to copyright infringement. One of the defendants in that case distributed, through a website, a software product known as Kazaa Media Desktop which was used to share digital entertainment such as music and film.
The Court held that jurisdiction was established on the basis that the software had an impact or effect in California as it was the movie capital of the world and that the software had been targeted at California. In Young ,  two Connecticut newspapers allegedly defamed Young, the warden of a Virginian prison, through material uploaded to a website in Connecticut.
Zippo Manufacturing Co. v. Zippo Dot Com, Inc. - Wikipedia
Young began proceedings in Virginia and the District Court refused an application to dismiss the proceedings on the basis of lack of jurisdiction. On appeal, the Court of Appeals for the Fourth Circuit held that jurisdiction could not be established, referring to its previous decision in ALS Scan. In another recent decision, Griffis v Luban ,  the Supreme Court of Minnesota refused to enforce a defamation judgment obtained in Alabama regarding material uploaded to an Internet newsgroup from Minnesota.
While the targeting approach has been popular with United States courts in recent times, the application of the Zippo sliding scale test — assessing the nature and interactivity of the website — to defamation cases is also still a possibility.
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However, the High Court did not make a great deal of the subscription nature of the website and it is doubtful whether the decision would have been different had the website been a non-subscription site. The Gutnick decision focuses our attention on regulation of the Internet and, in a broader sense, transnational space. While it is easy for us to acknowledge national and international legal and regulatory domains, conceptualising transnational space — an ever increasing ubiquitous space within, beyond and between borders — is more problematic. Who makes the law for this space and who implements it?
Transnational space is governed through an integrated network of international and national laws, entities and regimes. Conflict of laws or international litigation principles are very important in this space, as are contractually created dispute resolution mechanisms such as arbitration and mediation. When national courts engage with the transnational, the difficult question becomes whether they are acting as agents of the national or transnational.
Does a site ‘target’ a jurisdiction?
Ask any national judge and the answer would most surely be that they are acting as agents or part of a national legal system. A space known as transnational space, epitomised by life in cyberspace, is an integral part of social existence in the 21st century. While national courts will engage with this space, they may feel constrained to treat it as a consequence of national activity rather than existing in its own right. Theoretically, international treaties could be concluded to provide a constitutional structure for transnational space much like that in place in the European Union.
In order to better facilitate social and economic existence in transnational society we are challenged to conceptualise a more subtle approach to this space. To put it boldly, national judges would be seen as agents for implementing a transnational constitutionalism. If we are to negotiate American legal hegemony in transnational cyberspace, a view that completely rejects its presence seems the wrong starting point.