Private International Law

AuthorRobert G. Howell
ProfessionProfessor. Faculty of Law University of Victoria British Columbia
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 tran sborder 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 net Providers, [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 Law 275
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,2 Hunt v. T&N, plc,3 Tolofson v. Jensen,4 Beals 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. Mo rgu ard and Hunt imposed constitutional
requirements in interprovincial private inter national law. Without any
constitutional element, Beals and Pro Swing have applied, or have set
the st age 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
[Morgua rd].
3 Hunt v. T&N, plc, [1993] 4 S.C.R. 289 [Hunt].
4 Tolofson v. Jensen, [1994] 3 S.C.R. 1022 [Tolo fs on].
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.
location of the radio frequencies, and led to the early determination
of exclusive federal constitutional jurisdiction for telecommunications
media.9 Since 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 infrastr ucture. Writing in 2006, a US commentator, relying
on US business survey ev idence, 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,12 though
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.
10 United States Satellite Broad casting Co. v. WIC Premium Television Ltd., 2000
11 Holger 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.
12 Hague 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: ww load/wo p/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: /
upload/annu alreport 2007.pdf.

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