Lawsuits Sans Frontiers Personal Jurisdiction Meets the World Wide Web Steven L. Baron MM450 April 18, 2006

IIPA 2006 Report on China Piracy rates of physical copyright products remain virtually the highest in the world – 85 – 90% 35 million broadband lines 250,000 Internet Cafes Despite raids, no deterrence or meaningful decrease in availability of pirate products

Estimated Trade Loss* *International Intellectual Property Alliance, 2006 Special 301 Report

Legal Issues that Emerge In International IP Who can be sued? Where? Under what law?

Important Definitions Jurisdiction = –Particular court or court system; and –Power of a court to hail a party into court and render a decision that is binding on that party

Important Definitions Venue = –Location of a particular court Service of Process = –The delivery of legal papers that initiates a law suit or legal proceeding Choice of Law = –The legal process of deciding which jurisdiction’s law applies

Who Cares About Jurisdiction? Courts Lawyers Parties

Why care about jurisdiction? Impacts where you can be sued. Impacts law that applies to your suit. Impacts who decides the outcome. Impacts the nature of the outcome. Impacts the costs of suit. Impacts how you may decide to act in the future.

Dow Jones v. Gutnick Plaintiff/Respondent = Gutnick Defendant/Appellant = Dow Jones

Dow Jones v. Gutnick Gutnick lives in Victoria, Australia Dow Jones = –Delaware Company –Offices in New York City –Web Servers located in New Jersey

Dow Jones v. Gutnick Dow Jones publishes article in Barron’s On-Line Gutnick claims he was defamed in Australia Gutnick sues Dow Jones in Australia

Dow Jones v. Gutnick Trial court finds that Victoria “was not a clearly inappropriate forum” (i.e. Gutnick could maintain his suit in Australia). Court of Appeal refuses appeal. Dow Jones appeals to High Court of Australia

Dow Jones v. Gutnick High Court of Australia dismisses appeal –Defamation law seeks a balance Free Speech v. Preservation of Reputation –Publication is “bilateral” in nature Where the publisher acts Where the publication is presented –Single Publication Rule

Dow Jones v. Gutnick “[T]hose who post information on the World Wide Web do so knowing that the information they make available is available to all and sundry without any geographic restriction.” Place where information is downloaded is where harm to reputation occurs.

Bangoura v. Washington Post Those Pesky Canadians

Bangoura v. Washington Post Plaintiff = Bangoura –Former Senior official with UN –Seeks $9 million for two allegedly libelous articles published on Post’s web-site Defendant = Washington Post –Washington based newspaper –Has on-line edition

Bangoura v. Washington Post At time of publication (1997), Post had 7 subscribers in Ontario The only individual to access the on-line articles was Bangoura’s counsel Bangoura did not move to Ontario until 2000

Bangoura v. Washington Post Post challenges jurisdiction in trial court. Trial court upholds jurisdiction: –“those who publish via the Internet are aware of the global reach of their publications, and must consider the legal consequences in the jurisdiction of the subjects of their articles” –Where is “publication”? –Where is the “effect” felt?

Bangoura v. Washington Post Court of Appeal (Ontario) reverses –Not reasonably foreseeable that Bangoura would wind up a resident of Ontario –Bangoura’s lawyer was the only person in Ontario to access the articles on the Washington Post Internet database –U.S. Courts would not enforce a Canadian judgment (failure to meet “actual malice”) –Gutnick case distinguishable

Why does the media care about where it can be sued?

Standards of Proof U.S. – Public figures must show “actual malice” –Knowledge of falsity or reckless disregard for the truth U.K. – Public figures need not show “actual malice”

Gutnick and Bangoura Impact of Cases: –Gutnick opens up specter of suit anywhere that Internet publication is available –Bangoura tempers the Gutnick decision slightly –Imposes upon web publishers the need to know the law in foreign jurisdictions What about all those poor bloggers? –Collecting judgment may still be difficult against a foreign interest without assets in the country

Quote of the Day “Man's mind, stretched by a new idea, never goes back to its original dimensions.” Oliver Wendell Holmes, Jr.