THE INTERNET AND JURISDICTION: LESSONS FROM THE AMERICAN EXPERIENCE

Abstract

Global computer-based communications cut across territorial borders, creating a new realm of activity and undermining the feasibility and legitimacy of applying laws based on geographic boundaries. Territorial borders, in general, delineate areas within which different sets of legal rules apply. The Internet has no territorially-based boundaries, because the cost and speed of message transmission on the Internet is almost entirely independent of physical location. Messages can be transmitted from any physical location to any other location without any physical cues or barriers that might separate certain geographically remote places and people. Location remains vitally important, but only location within a virtual space consisting of “addresses” of the workstations (computers) between which messages and information are routed. What complicates matters, however, is the fact that the Internet is indifferent to the physical location of those computers and there is no necessary connection between an Internet address and physical location. No single entity owns the Internet and its global reach and internal complexity continue to frustrate efforts to control its use and its users. Furthermore, the Internet’s diversity complicates jurisdictional analysis because its uses and its users differ greatly. There are multiple ways to access the network, multiple owners of its component parts and a myriad of methods to transmit and receive information across the Internet. The variety of potential users and potential Internet contacts makes it difficult to draw an analogy between different cases and in the absence of legislation, requires courts to look at the circumstances of each case. This creates jurisdictional concerns that will cut across all electronic transactions that take place over the Internet. The explosive growth of online business has, therefore, raised concerns about applying existing substantive and procedural doctrine, both largely defined by geography, to a world without physical borders. The law of personal jurisdiction, which emerged from territorial principles, presents difficult and challenging problems. Although some commentators propose new regimes to solve these problems, others believe that existing doctrine can adequately accommodate Internet jurisdiction disputes. The aim of this note is to explore how these problems are dealt with in the
United States of America (USA) and to draw some lessons for South Africa from the American experience.