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 speech
Court of Appeals 9th Circ., 23 Aug. 2004, reversed:
 no personal jurisdiction over appellants, LICRA and UEJF.
Rule from Supreme Court
Bancroft & 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 jurisdiction
2006-01-12, 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-wikileaks/#seealso2d5
2c189190cd7ea57378e8f4259958b
 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 44/2001
The Brussels I Regulation OJ L12/1
Art. 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 orders
An 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 problem
Lockton 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 solution
Application 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 party
General 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 case
Google: 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 comply

Eady 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?