Private International Law

• Author: Robert G. Howell
• Profession: Professor. Faculty of Law University of Victoria British Columbia
• Pages: 274-314

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CHAPTER 6

PRIVATE

INTERNATIONAL LAW

A. INTRODUCTION

The global dimensions of telecommunications media present signif‌i-

cant issues of jurisdiction, enforcement of extraterritorial judgments,

and choice of law. The hemispheric footprint of a transmission signal

from a broadcast satellite presents signif‌icant transborder dimensions,

but the decentralized and largely anonymous operation of Internet

transmissions is even more demanding in the context of private inter-

national law. In most contexts, effective control of Internet content

rests with the provider of the server hosting a site or user. That pro-

vider is jurisdictionally situated, yet rights and liabilities arising from

the transmission are multijurisdictional. An example, given in Chapter

5, is the 2004 decision of the Supreme Court of Canada enabling a

Canadian copyright tariff to be levied on musical works transmitted on

the Internet, even with respect to a transmission from a server hosted

outside Canada. The transmission need only have a “real and substan-

tial connection” with Canada.1 This meets the primary requirement for

a Canadian court to take jurisdiction. However, the effectiveness of any

resulting order, particularly if injunctive or otherwise non-monetary,

1 Society of Composers, A uthors and Music Publishers of Cana da v. Canadian Asso-

ciation of Inter netProviders, [2004] 2 S.C.R. 427, 2004 SCC 45 [Tariff 22]. Noted

in Chapter 5, text accomp anying note 375, but discussed below i n this chapter,

text accompany ing notes 139–45.

Private Inter national Law275

will depend on the ability to enforce the order in the jurisdiction host-

ing the server. That jurisdiction will apply its own principles of private

international law and may decline to recognize or enforce the Can-

adian order.

In addition, the principles of Canadian private international law are

under considerable judicial development after landmark decisions over

recent years by the Supreme Court in Morguard Investments Ltd. v. De

Savoye,2Hunt v. T&N, plc,3Tolofson v. Jensen,4Beals v. Saldanha,5 and Pro

Swing Inc. v. ELTA Golf Inc..6 Two further decisions by the Court in 2009

need also to be considered.7 The ultimate scope and impact of these de-

cisions is continuing to evolve, but the consequences are considerable

and will continue to be so. Morguard and Hunt imposed constitutional

requirements in interprovincial private international law. Without any

constitutional element, Beals and Pro Swing have applied, or have set

the stage to apply, these principles internationally, moving Canadian

law well beyond the traditional common law position ref‌lected in the

Commonwealth. The Canadian common law position is today more

ref‌lective of features prevailing in the United States.8

An extraterritorial element of telecommunications has always

existed. Radio and television signals do not respect jurisdictional

boundaries. Radio or microwave transmissions and connections by

telegraph and telephone demonstrated an early recognition of the need

for some international cooperation and organization, such as the al-

2 Morguard Investments Lt d. v. De Savoye,[1990] 3 S.C.R. 1077, 76 D.L.R. (4th) 256

[Morguard].

3 Hunt v. T&N, plc,[1993] 4 S.C.R. 289 [Hunt].

4 Tolofson v. Jensen,[1994] 3 S.C.R. 1022 [Tolofson].

5 Beals v. Saldanha, [2003] 3 S.C.R. 416, 2003 SCC 72 [Beals].

6 Pro Swing Inc. v. ELTA Golf Inc., 2006 SCC 52, [2006] 2 S.C.R. 612 [Pro Swing].

7 Teck Cominco Metals Ltd. v. Lloyds Underw riters, [2009] 1 S.C.R. 321, 2009 SCC

11 [Teck Cominco]; and Canada Post Corporation v. Lépine, [2009] 1 S.C.R. 549,

2009 SCC 16 [Canada Post Corporation].

8 See Restatem ent of the Law Third, Foreign Relations Law of the Unite d States (St.

Paul, MN: American L aw Institute, 1987) § 481, Recognition and Enforce ment

of Foreign Judgments. S ee also Wanda Ellen Wakef‌ield,Annotation, Judgement

of Court of Foreign Country as En titled to Enforcement or Extraterr itorial Effect in

State Court, Amer ican Law Reports, 13 A.L.R. (4th) 1109 (1982), discuss ing the

recognition and e nforcement of foreign judgments acros s the United States. It

is clear from t his provision that the US p osition, although ref‌lecting d iversity

between state ju risdictions, include s the enforcement of foreign non-monetary

judgments in ce rtain circumst ances; see, for example, Siko Ventures Limited v.

Argull Equities, LLC, 20 05 U.S. Dist. LEXIS 21257 at paras. 4 and 7 (W.D. Tex.),

concerning a Hong Kong ord er in the nature of an injunction “to enjoi n the sell-

ing of furthe r shares of corporate stock” bei ng enforced by the Texas court.

TELECOMMUNICATIONS LAW

276

location of the radio frequencies, and led to the early determination

of exclusive federal constitutional jurisdiction for telecommunications

media.9Since then, national jurisdiction has coped for the most part

with the relatively contained international or transborder elements of

radio and television microwave signals.

The hemispheric footprint of satellite broadcasting brought change,

not only by providing a greater range in the actual signal communica-

tion but by diminishing regulatory control. The grey market for satellite

broadcast decoders of unlicensed signals in Canada was litigated by the

Canadian licence holders ex juris against US providers of decoders to

Canadian viewers.10 However, the multifarious scope and decentraliza-

tion afforded by the Internet, together with its inf‌luence in so many as-

pects of human existence, present even greater international elements

and create demands of such magnitude that they may overwhelm pri-

vate international law, in the absence of an international accord stipu-

lating an infrastructure. Writing in 2006, a US commentator, relying

on US business survey evidence, found a primary business concern to

be the divergence of national laws over the illegality of content of web-

sites and the corresponding likelihood of states claiming jurisdiction

for a tort “committed in” that state from simple accessibility.11

International agreement, however, has been elusive,12though

still a matter for possible future discussion.13 The European Union

has internal regulation with respect to “information society services”

9 Chapter 1, text accompa nying notes 46–52 and 75– 93.

10United States Satellite Broad casting Co. v. WIC Premium Television Ltd., 2000

ABCA 233.

11Holger P. Hestermeyer, “Personal Juri sdiction for Internet Torts: Towards an

Internation al Solution?” (2006) 26 Nw. J. Int’l L. & Bus. 267 at 267–68.

12Hague Conference on Priv ate International Law, Preliminary Draft Conve ntion

on Jurisdiction a nd Foreign Judgments in Civil and Commercial Mat ters, Prelimin-

ary Docume nt No. 11 (August 2000), online: www.hcch.net/upload/wop/jdg-

mpd11.pdf. Not being respons ive to Internet communications (the negoti ations

had taken pl ace while the Internet was in it s relative infancy) the proposa ls

collapsed, de spite attempts to coordinate t he recommended terms to the new

media. See Avr il D. Haines, The Impact of the Intern et on the Judgments Project:

Thoughts for the Future, Preli minary Document No. 17 (February 20 02), submit-

ted by the Perma nent Bureau for the attention of the Speci al Commission of

April 2002 on genera l affairs and policy of t he Conference, online: www.cptech.

org/ecom/hague/hague17feb2002-ah-internet.rtf. See Hestermeyer, ibid. at

287–88.

13 See Hague Conference on Pr ivate International Law, Annual R eport 2007 at 27,

para. 7(a), retaining on the Conference’s agend a: “questions of private inter-

national la w raised by the inform ation society . . . ,” online: www.hcch.net/

upload/annualreport2007.pdf.