1 Introduction
Cyberspace’s virtual characteristics do not necessarily mean that its consequences in real life cannot be actual. All the actors involved in an Internet transaction have a real-world existence and are located in one or more legal jurisdictions.[1] Since the Internet is accessible from almost everywhere in the world it has the potential to create effects in every jurisdiction and so the transactions on the internet might potentially be subject to every jurisdiction in the world.”[2]
In this manner, cyberspace can be likened to an ocean or sea where cyber-sailors are overwhelmed by the authority claims of multiple countries even though the territorial waters of none of them have exact borders. There should be an answer to the question of when a country or jurisdiction can claim authority from a cyberspace actor on the grounds of being entered to its virtual territorial waters or when a cyberspace actor should conclude that he actually entered the virtual territorial waters of a jurisdiction and so should expect the authority claims of that particular jurisdiction.
However, this jurisdictional approach does not solve the problem, because cyber-sailors might decide to be pirates or just might not fancy obeying the authority claims which are all questionable in terms of having an actual enforcement power in cyberspace. By focusing on the authority perspective, this essay will discuss whether it could be possible to find an answer for an e-commerce actor about which particular law he is governed by in the cyberspace. In that manner, the next section will begin this discussion by examining the concept of jurisdiction in cyberspace first.
2 Jurisdiction in Cyberspace
The term jurisdiction basically has three meanings “the right to regulate of a state”, “the physical territory of a state” and “the right of a court to hear a transnational dispute”.[3] Jurisdiction can be exercised extra-territorially on the following grounds such as the territorial principle, the nationality principle, the protective principle, the passive personality principle, the universality principle.[4]
All these extra-territorial applications of the national law actually stems from the territorial link with either the location of the source of the activity in question(country of origin) or the locations of its effects(country of destination).[5] However, this territorial link does not work well in the cyberspace environment, because cyberspace actors are not addressed according to their territory. Any particular node on the Internet is addressed with an IP address that consists of a bunch of numbers separated with a delimiter. For example, a 32-bit v4 IP address consists of four numbers each between 0 to 255 separated by a dot. This means that the exchange of information and communication in the Internet’s networked environment is not conducted according to the parties’ geographical location, instead, the IP based addressing mechanism is used for locating the parties and enabling them to communicate on the Internet. The communications can be made “from one physical location to any other location without degradation, decay, or substantial delay, and without any physical cues or barriers.” [6] For this reason, “the Internet can be described as borderless or ubiquitous, and the location of computers on the Internet is irrelevant for both receiving/accessing and providing/sending information.”[7]
However, this location-independent addressing and ubiquitous communication mechanism should not lead one to “cyberspace fallacy” as cyberlibertarians (including Jonson and Post[8]) did by claiming that laws passed by states regulators who are sovereign only within their own borders must fail in the cyberspace because the cyberspace is a distinct borderless space floating over the real space and it does not respect the real space borders.[9] This claim can be opposed by the mere fact that all cyberspace actors has a presence in the real space and interact with each other within the territories of particular legal jurisdictions.[10] So did Lessig, by pointing out the effects doctrine as follows: “If the Net has an effect on that half of the cybercitizen that is in real space, if it has an effect on third parties who are only in real space, then the claim of a real space sovereign to regulate it will be as strong as any equivalent atom induced effect.”[11]
The cyberspace transactions are still very similar to other transnational transactions in terms of involving real world parties transacting with each other from different territorial jurisdictions in a way that sometimes causing real world harms.[12] In that case, as Goldsmith stated, “the state in which the harms are suffered has a legitimate interest in regulating the activity that produces the harms.” [13] However, because of the ubiquitous nature of the Internet, it is very difficult to determine how many jurisdictions are to be effected in advance before a real harm occurs and to decide which affected jurisdictions have a more compelling and fair claim that makes it legitimate to obey. [14]
Speaking of legitimacy, it should be noted that there has to be a legitimating community for the state to be legitimate and to exercise its authority over. Each state has a core community consisting of the residents in its territory and also an extended community who have continuous and persistent communication with this core community. Therefore, a state’s community is larger than the population of its geographical territory.[15] For example, an e-commerce business which dedicated a part of its website to the sales to a state would be part of such an extended community of that state. [16] If the e-commerce business in this example customised its website for a foreign country, present on its website all the information, advertisement and pricing in that foreign country’s language and currency, then this particular example could be resembled to the situation that the e-commerce business used the cyberspace to transport its shop to the customer’s country. [17] This is called targeting and “gives a clear evidence that the business joined the target country’s trading community, and thus that it is legitimate for the country to impose its trading laws on the business’s activities.” [18]
Apart from targeting there are also other criteria for deciding authoritative and legitimate jurisdiction in a transnational activity, such as US-based “the minimum contacts”[19] doctrine and “the interactivity doctrine”[20] or EU-based conventions like Brussels[21](for jurisdiction of courts), Rome I[22] and Rome II[23] (for contractual and non-contractual obligations) which suggest some basic tests for the connections between the dispute and the relevant state, such as place of residence , place of damage occurred or existence of a consumer relationship.
However, these criteria do not provide clarity before the disputes occur or before the states claim authorities. They only provide answers after the claims arise. In other words, if the analogy above revisited, these criteria may give an answer to the question of when a country or jurisdiction can claim authority from a cyberspace actor on the grounds of being entered to its virtual territorial waters, but they do not provide answer to a cyberspace actor for when to conclude that he is about to enter the virtual territorial waters of a jurisdiction or whether he should obey the authority claims of that particular jurisdiction. In the next section, possible answers for these questions will be discussed.
3 Law and Authority in Cyberspace
The regulatory activities in transnational legal context can be divided into three: “the right to prescribe laws, the right to adjudicate disputes and the right to enforce the rules or judgment.” [24] According to Kohl, a state can exercise all three of these activities only within its territory. States may sometimes extra-territorially exercise their law prescribing and dispute resolution authority, but they cannot exercise their enforcement authority outside their territories. In other words, states’ constitutions and laws are binding on the residents of their physical territories and in some situations it can be also applied to other parties who are present outside. However, although the adjudicative and legislative jurisdiction has an extra-territorial reach, “a state can never send its police or other agents into another state’s territory to enforce these claims.” [25]
There are two basic reasons for deference to a law’s authority: the first is the enforcement power (or in other words the deterrent effects of negative consequences of disobedience) and the second one is the normative force which is independent of the existence of a practical enforcement power of the law system. As Reed asserted “in the physical world the space over which a lawmaker has the right to assert authority, and can do so effectively, is primarily territorial.” [26] However, a foreign cyberspace actor need not have a physical presence on the claimant state’s territory. If the cyberspace actors do not reside on the claimant state’s territory, then the deterrent effects of enforcement and punishment will be very unlikely, due to the fact that the cross-border enforcement process is very costly and the possible gain from the enforcement would probably far less than the cost of conducting the enforcement. Thereby, the constitutional or internal rules of a state do not necessarily give it authority in cyberspace and in that manner, the source of the authority should be analysed from an external perspective which is the perspective of the addressed cyberspace actor.[27] Therefore the main reason for accepting the authority claim in cyberspace should be a normative force rather than the coercive force.
According to Reed and Murray, this normative force of the authority claim of a state on a cyberspace actor depends on two factors: the first is the cyberspace actor’s perception for himself to have sufficient connection with the state’s community; the second one is the decision of the cyberspace actor for his closest affiliation with all claimant rule systems and communities. [28] If the cyberspace actor does not have enough connection with a state’s community or he does not think that he shares the closest relation link with that state where multiple other states also claim authority, the cyberspace actor will not acknowledge the validity of the state’s authority. Reed named this situation as “virtual membership” and “unless the cyberspace actor perceives himself as a member of the lawmaker’s community, he will not accept the authority of that lawmaker.”[29] The lawmaker state has to convince the cyberspace actors that they are part of its community and assure the cyberspace actors that its authority claim is actually stronger than other states’ claims, to make its laws be obeyed. [30] It is also important for the cyberspace actor to feel the authority claims are actually addressing him. He would not accept the authority claims valid and reject to obey it, if he finds the authority claim not legitimately addressing him. [31]
It should be also noted that laws are not the only normative claims that affect the behaviour of people. There are also other social norms, ethic codes or institutionalised private rule-systems. In the off-line world, the legal norms have the highest hierarchy of authority between other norms. However, in cyberspace, the legal norms do not always have the highest hierarchy in cyberspace. [32] The private rule-systems in cyberspace such as ICANN[33], eBay or Amazon, might be more authoritative than the state laws. These rule-systems not only provide rules for the functioning of particular activities in cyberspace but also provide internal dispute resolution and enforcement mechanisms which eliminate the need for state’s adjudicative power. As Reed and Murray stated, “even if there is a disagreement about whether the rules of these systems are law there can be little disagreement that the systems themselves look and operate very like law systems.”[34] If the cyberspace actor has an inner perception for being more closely connected to the community of a private rule system than a nation-state’s community, then this cyberspace actor will find the private rule system’s authority more compelling for himself and prefer to obey it rather than obeying the state’s laws.
4 Conclusion
States are the ultimate lawmakers in its territorial jurisdiction, so are the ultimate authority for their geographical communities in the real world. However, in cyberspace, there is no such ultimate power for states and they are just an authority claimant whose claims wrestle with other authority claimants such as other rival states or even other private rule-systems.[35]
The question of what the applicable law is in cyberspace is not a proper one. As discussed above, there is no clear answer. Then the proper question to ask might be which of the authority claims should be obeyed.[36] Cyberspace actors feel obliged to obey the laws if either they believe there is a real possibility of enforcement against them, or if they respect the lawmaker’s authority claim.[37] Since fear of enforcement is less likely in cyberspace, the lawmaker will have the authority if the cyberspace actor decides to obey it. Therefore this is not a matter of national rules of law, indeed “it is a question of the internal state of mind of the cyberspace actor.”[38]
Cyberspace actors, respect and obey the rules of communities which they feel to be a member of and ignore the claims of other communities including state laws. “Any particular normative claim will thus have differential authority for each individual cyberspace actor.”[39] The existence of differential authorities for each individual cyberspace actor means that there is no single authority or single law for a cyberspace actor. And even if a cyberspace actor decided over which rules are binding for him, this decision is not static as the community membership of the cyberspace actor changes constantly over time. [40]
BIBLIOGRAPHY
Goldsmith JL, ‘Against Cyberanarchy’ (1998) 65 University of Chicago Law Review 1199
Hornle J, Cross-Border Internet Dispute Resolution (Cambridge University Press 2009)
‘ICANN – The Internet Council for Assigned Names and Numbers’ <https://www.icann.org/> accessed 7 March 2019
Johnson DR and Post DG, ‘Law and Borders – the Rise of Law in Cyberspace’ (1996) 48 Stanford Law Review 1367
Kohl U, Jurisdiction and the Internet: Regulatory Competence over Online Activity (Cambridge University Press 2007)
Law J (ed), A Dictionary of Law (Ninth edition, Oxford University Press 2018)
Lessig L, ‘The Zones of Cyberspace Symposium: Surveying Law and Borders’ (1995) 48 Stanford Law Review 1403
Murray AD, ‘Nodes and Gravity in Virtual Space’ (2011) 5 Legisprudence 195
Reed C, Internet Law: Text and Materials (2nd edn, Cambridge University Press 2004)
——, Making Laws for Cyberspace (1st ed, Oxford University Press 2012)
Reed C and Murray A, Rethinking the Jurisprudence of Cyberspace (Edward Elgar Publishing 2018)
Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) 2008 (OJ L 177)
Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) 2007 (OJ L 199)
Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters(Recast Brussels I Regulation) 2012 (OJ L 351)
[1] Chris Reed, Internet Law: Text and Materials (2nd edn, Cambridge University Press 2004) 1–2.
[2] ibid 1–2.
[3] Uta Kohl, Jurisdiction and the Internet: Regulatory Competence over Online Activity (Cambridge University Press 2007) 14.
[4] jurisdiction, n. Jonathan Law (ed), A Dictionary of Law (Ninth edition, Oxford University Press 2018) 382.
[5] Kohl (n 3) 24.
[6] David R Johnson and David G Post, ‘Law and Borders – the Rise of Law in Cyberspace’ (1996) 48 Stanford Law Review 1367, 1367.
[7] Julia Hornle, Cross-Border Internet Dispute Resolution (Cambridge University Press 2009) 20.
[8] ‘ Information available on the World Wide Web is available simultaneously to anyone with a connection to the global network… They exist, in effect, everywhere, nowhere in particular, and only on the Net.’ Johnson and Post (n 6) 1375.
[9] Andrew D Murray, ‘Nodes and Gravity in Virtual Space’ (2011) 5 Legisprudence 195, 198.
[10] Reed (n 1) 1–2.
[11] Lawrence Lessig, ‘The Zones of Cyberspace Symposium: Surveying Law and Borders’ (1995) 48 Stanford Law Review 1403, 1404.
[12] Jack L Goldsmith, ‘Against Cyberanarchy’ (1998) 65 University of Chicago Law Review 1199, 1200.
[13] ibid.
[14] Johnson and Post (n 6) 1376.
[15] Chris Reed and Andrew Murray, Rethinking the Jurisprudence of Cyberspace (Edward Elgar Publishing 2018) 25.
[16] ibid.
[17] ibid 24.
[18] ibid.
[19] International Shoe Co v Washington 326 US 310(1945) – This doctrine is a variation of effects doctrine where the effects caused by a cyberspace actor required to have substantial enough connection with the affected country.
[20] Zippo Mfr. Co. v. Zippo Dot Com, Inc, 952 F. Supp. 1119 (W.D. Pa. 1997) – This doctrine tries to answer whether a court have a jurisdiction or not over a extra-territorial internet dispute, the level of interactivity and of the commercial nature of the information exchange between the website and the public should be analysed.
[21] Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters(Recast Brussels I Regulation) 2012 (OJ L 351).
[22] Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) 2008 (OJ L 177).
[23] Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) 2007 (OJ L 199).
[24] Kohl (n 3) 16.
[25] ibid.
[26] Chris Reed, Making Laws for Cyberspace (1st ed, Oxford University Press 2012) 73.
[27] Reed and Murray (n 15) 67.
[28] ibid 69.
[29] Reed (n 26) 73.
[30] Reed and Murray (n 15) 76–77.
[31] ibid 69.
[32] ibid 26.
[33] ‘ICANN – The Internet Council for Assigned Names and Numbers’ <https://www.icann.org/> accessed 7 March 2019.
[34] Reed and Murray (n 15) 44–45.
[35] ibid 63.
[36] ibid 235.
[37] Reed (n 26) 96.
[38] ibid 70.
[39] Reed and Murray (n 15) 137.
[40] ibid 231.