Jurisdiction over the Internet?

AuthorSteve Coughlan, Robert J. Currie, Hugh M. Kindred, Teresa Scassa
Pages117-134
CHAPTER
5
Jurisdiction
over
the
Internet?
States
typically
regulate
matters
arising
within
their
territorial
sover
eignty,
but
that
practice
is
inadequate
to
govern
the
Internet.
Since
In
ternet-based
activities
occur
instantaneously
both
within
and
outside
of
a
state's
territory
they
are
at
once
national,
transnational,
and
global
the
boundaries
of
the
state's
jurisdiction,
whether
legislative,
executive,
or
adjudicative,
are
severely
strained.
In
this
chapter,
we
ad
dress
these
issues
of
jurisdictional
reach
by
considering
how
existing
national
laws,
often
enacted
prior
to
the
introduction
of
the
Internet,
may
be
extended
to
apply
to
Internet-based
activities.
We
also
consid
er
the
corollary
how
Internet-based
activities
are
eroding
political
sovereignty
and
state
jurisdiction.
A.
THE
REACH
OF
STATE
JURISDICTION
OVER
THE
INTERNET
When
jurisdiction
over
the
Internet
and
its
uses
is
at
issue,
states
have
to
consider
whether
the
acts
or
conduct
that
they
seek
to
control,
regulate,
or
modify
are
appropriately
linked
to
their
territory.
The
challenge
is
by
no
means
a
small
one.
In
the
early
days
of
the
Internet,
Johnson
and
Post
observed
that
the
Internet:
is
destroying
the
link
between
geographical
location
and:
(1)
the
power
of
local
governments
to
assert
control
over
online
behaviour;
(2)
the
effects
of
online
behaviour
on
individuals
and
things;
(3)
the
legitimacy
117
118
LAW
BEYOND
BORDERS
of
a
local
sovereign's
efforts
to
regulate
global
phenomena;
and
(4)
the
ability
of
physical
location
to
give
notice
of
which
sets
of
rules
apply.
1
These
challenges
remain.
Not
only
is
Internet-based
activity
diffi
cult
to
regulate,
its
effects
are
distributed
and
difficult
to
measure,
and
the
laws
of
individual
states
are
unlikely
to
have
much
effect
without
some
form
of
global
co-operation.
Internet-based
activities
raise
deep
concerns
for
states
since
they
affect
important
matters
of
local
and
national
governance,
such
as
cultural
and
linguistic
policy,
economic
policy,
social
policy,
criminal
law,
and
morality.
2
1)
Culture,
Language,
and
Expression
Cultural
and
linguistic
policies
are
being
increasingly
disrupted
by
the
Internet.
For
example,
the
Quebec
government's
legislation
requir
ing
businesses
operating
in
Quebec
to
offer
a
French
language
option
to
consumers
encountered
significant
hurdles
with
the
rise
of
e-com-
merce.
3
Businesses
with
premises
in
Quebec
must
ensure
that
they
have
a
French
language
version
of
their
website
in
order
to
comply
with
the
law.
However,
there
is
no
way
to
stop
businesses
anywhere
else
in
the
world
from
selling
their
wares
or
services
to
Quebeckers
over
the
Inter
net
in
any
language
they
choose.
4
Cultural
policies
might
also
be
at
risk.
Federal
Canadian
content
regulations
5
have
long
required
radio
and
television
undertakings
to
meet
certain
quotas
for
Canadian
broadcast
content.
The
federal
regulator
has
so
far
hesitated
to
apply
such
rules
1
David
R
Johnson
&
David
Post,
"Law
and
Borders:
The
Rise
of
Law
in
Cyberspace"
(1996)48
Stan
L
Rev
1367
at
1370
[emphasis
in
the
original].
2
Thomas
Schultz,
"Carving
up
the
Internet:
Jurisdiction,
Legal
Orders,
and
the
Pri-
vate/Public
International
Law
Interface"
(2008)19:4
EJIL
799
at
801,
argues
that
it
is
the
area
of
protection
of
local
values
in
which
one
sees
the
strongest
assertion
of
state
jurisdiction
over
Internet
activity
[Schultz],
3
The
legislation
is
known
as
the
Charter
of
the
French
Language,
RSQc
C-11.
It
pro
vides
that
the
language
of
business
in
Quebec
is
French.
Section
58
of
the
law
re
quires
all
public
signs
and
advertising
to
be
in
French.
4
This
is
effectively
conceded
by
the
fact
that
the
Office
québécois
de
la
langue
frangaise
indicates
that
only
those
businesses
with
an
address
in
Quebec
must
have
a
French
version
of
their
website.
See
Office
québécois
de
la
langue
frangaise,
Infor
mation
and
Communication
Technologies
in
French,
online:
Gouvernment
du
Québec
www.oqlf.gouv.qc.ca/ressources/bibliotheque/depliants/2oioo212_depliant6fva
.
pdf
at
4.
5
See,
for
example,
Radio
Regulations,
1986,
SOR/86-982
[Radio
Regulations].

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