Jurisdiction

LW205

28 February 2011

LICRA v. Yahoo! Inc./Société Yahoo!

Ligue contre le racisme et l'antisémitisme et Union des étudiants juifs de France Tribunal de grande instance, Paris.

sale of Nazi memorabilia by auction ordered on 22 May 2000 to

take all appropriate measures to Block French access to Nazi memorabilia

Yahoo! Claimed could not comply Yahoo! contended that it was impossible to

comply with this order. The report of the court-appointed experts

noted that, as of 2000, roughly 70% of French internet users could be identified as such by the use of DNS databases.

Yahoo! Inc. must comply within three months or face a fine of 15,244.90 EUR per day. 10 Jan. 2001 Yahoo! No appeal in France

US Yahoo Jurisdictional Proceedings

Northern District of California: French ordinance not effective US, per J.Fogel: France constitution inconsistent with 1st

Amendment, inapplicable. Article 10 of European Convention permits

restriction on racist-hate speechCourt of Appeals 9th Circ., 23 Aug. 2004, reversed: no personal jurisdiction over appellants, LICRA

and UEJF.

Rule from Supreme CourtBancroft & Masters, Inc. v. Augusta National Inc.Exercise of jurisdiction requirements of "minimum

contacts" and "fair play and substantial justice" where (1) non-resident purposefully directed activities with a

resident, invoking US benefits and protections; (2) relates to defendant’s forum-related activities; and (3) exercise of jurisdiction is reasonable.BUT [LICRA] did not engage in conduct targeted at a

known US plaintiff.Dissenting opinion J.Brunetti: viewed French as

constituting "a defendant’s intentional targeting of his actions at the plaintiff in the forum state”.

Further quashing of US jurisdiction2006-01-12, remanded the case: on ripeness or

personal jurisdiction grounds. J. Fletcher : Yahoo! is necessarily arguing that it has a 1st

Amendment right to violate French criminal law and to facilitate the violation of French criminal law by others.

the very existence of such an extraterritorial right under 1st Amendment is uncertain.

30 May 2006 Supreme Court denied certiorari

Wikileaks – where is it? Servers through intermediaries

Amazon ‘cloud’ services (extra-legal) France hosting company Swedish host still stable 355 mirror servers within a week

Foundation through cash Germany/PayPal: Wau Holland Foundation http://www.wired.com/threatlevel/2010/12/paypal-wikile

aks/#seealso2d52c189190cd7ea57378e8f4259958b Individual through personal jurisdiction

Swiss post office account Note Swedish 2nd arrest warrant + Interpol Assange under house arrest on remand in England

Appealing extradition to Sweden (and then US?)

Regulation (EC) No 44/2001The Brussels I Regulation OJ L12/1Art. 2 (read with Arts. 59 & 60) general provision

that a person domiciled in a Member State normally to be sued in Member State

Art. 4 Member State courts to apply domestic law rules to determine jurisdiction in respect of persons not domiciled in a Member State

Art. 5 provisions for special jurisdiction as exceptions to the general provisions on jurisdictions

Réunion Européene v Spliethoff’s Bevrachtingskantoor [1998] ECR I-6511 

Arts 15-17 provisions relating to jurisdiction in relation to consumer contracts

Rome I Regulation EC 593/2008 Freedom of Choice/Parties Express Choice: Art 3(1) “a contract shall be governed by the law chosen by the parties. The choice shall be made expressly or clearly demonstrated by the

terms of the contract or the circumstances of the case”.Absence of Choice by Parties: applicable law shall be determined according to general rules;

Machinale Glasfabriek De Maas B.V. v. Emaillerie Alsacienne S.A. [1984] [1985] 2 C.M.L.R. 281)

When not covered by general rules or covered by more than one heading of

Art 4(1) law of characteristic performer’s country of habitual residence; Art 4(2) When manifestly more closely connected with a country other

than one indicated by general rules or of characteristic performer’s habitual residence;

Art 4(3) When applicable law cannot be determined under Art 4(1) or 4(2) – law of country with which the contract is most closely connected

Consumer Contracts Law of Consumer’s habitual residence (subject

to conditions); Art 6(1) Parties may choose but must not deprive

consumer of protection of consumer’s country of habitual residence; Art 6(2)

In absence of Art 6(1), applicable law determined under Art 3 or Art 4; Art 6(3)

Exclusion of Art 6(1)&(2); Art 6(4)

Norwich Pharmacal ordersAn effective global remedy

12 Feb 2010 New Law Journal  Vol 160, Issue 7404  Anna Caddick & Hugh Tomlinson

NP orders v. ISPs to discover the identity of anonoymous individuals

ISPs often US-based Twitter, Facebook, MySpace, Wikipedia, Google.

A Facebook first“Facebook” case— Applause Store Productions & Firsht v Raphael

[2008] EWHC 1781, [2008] All ER (D) 321 (Jul).

disclosure of the registration details, including the e-mail, IP addresses.

G & G v Wikimedia Foundation Inc [2009] EWHC 3148 (QB), [2009] All ER (D) 92 (Dec)

Identify person publishing private information

Jurisdiction: the Google problemLockton v. Persons Unknown & Google Inc

[2009] EWHC 3423 (QB).

Lockton: claimant claimed defamatory e-mails which also contained confidential information. IP addresses assigned to Google: Gmails were sent. Option: obtain subscriber details IP login from Google.

Google would provide info. on court order BUT Declined jurisdiction of the court. Holland J.:

court had jurisdiction to make an order against a US company without a place of business in England?

Jurisdiction: the solutionApplication for permission to serve Civil Procedure Rules 6.36 Grounds in para 3.1.3 of Practice Direction B met: “A claim is made against a person (the

defendant) on whom the claim form has been or will be served (otherwise than in reliance on this para) and—(a) there is between the claimant and the defendant a real issue which it is reasonable for the court to try; and(b) the claimant wishes to serve the claim form on another person who is a necessary and proper party to the claim.”

Obstacle to Google as partyGeneral rule Burstall v Beyfus (1884) 26 Ch D

35 vexatious to enjoin a party solely for obtaining

disclosure. Burstall principle was applied to decline

joinder of a foreign corporation in Unilever v Chefaro Proprietaries [1994] FSR 135.

Outcome of caseGoogle: no independent claim for relief under

Norwich Pharma suggested that special policy considerations

applied to ISPs. providers deal with customers throughout the

world. location of the offices is a matter of

convenience, relationship with their customers automatic and

electronic. It would be absurd if physical presence affected

the ability of a wronged person to obtain relief?

US alternative claim

US ‘John Doe’ proceedings v. emailer plus disclosure v. Google

more costly and time consuming US judge well placed to judge merits?

Google suffers little prejudice through the order?

indicated that it would complyEady J. held: exercises discretion to serve order on

Google exercise jurisdiction making NP order

An effective solution? Norwich Pharma order removes anonymity. Jurisdiction problem serious obstacle for relief. Eady J. enables

courts to grant such orders against foreign ISPs. English court take jurisdiction and

make an order against a foreign ISP.

How will it be done? Issue an application notice

against “Persons Unknown” with ISP as second defendant

make an application for permission to serve out of the jurisdiction at same time as Norwich Pharma application.

Policy questions Is English libel Bar creating work for itself? Is US right to refuse to impose 1st Amendment

on France? Is consumer right to ‘home decision’ practical?