|
Old Problems, New Technology
Even with the stock falling of companies even remotely associated
with the Internet, businesses nonetheless continue to transact and
individuals continue to communicate via this global super-network.
This will not change, and presents lawyers with unique and fascinating
challenges when representing clients involved in Internet related
litigation.
It is not the technology itself that troubles the legal system;
it is the legal system that in its traditional form struggles
to adapt to a fundamental change in the way people communicate.
Young lawyers, having great familiarity with the underlying technology
and its use, are in a unique position to further propel the development
of Internet law.
An example of one area where significant common law adaptation
has taken place is personal jurisdiction. Everything was quite
simple prior to the Web. "Minimum contacts" and "stream
of commerce" doctrines were learned early in law school and
argued with confidence before the judiciary. Judges too, had a
good handle on the issues and the applicable standards.
But there was a primary analytical assumption that left lawyers
and judges alike searching for answers when faced with Internet
jurisdictional questions - purposeful availment. The gravitas
of jurisdictional analysis relied on the ability of a person to
avoid subjecting themselves to the laws of a certain state simply
by avoiding contact with it, and thus not availing themselves
from the laws of that state. They had, even if nominal, a choice.
The Internet, by nature, did not afford this option. A person
can conduct business and allow access to their site throughout
the world entirely from a desktop. It is not feasible to publish
a website and then restrict its accessibility to those in friendly
jurisdictions. Neither can the operator of adult-oriented site
prevent viewers from the state with the most severe obscenity
standards. Imagine the annoyance of the 18-year-old college freshman
who receives a summons to appear from a Mobile, Alabama court
related to content posted on a general access website. Notwithstanding
choice of law concerns, the mere requirement to appear in a jurisdiction
across the country, in for example a defamation suit brought by
a large company for a message posted in a discussion group, creates
a high burden on Internet commerce and significant restraints
on Free Speech.
Courts are creating new doctrines attempting to apply to Internet
issues to traditional jurisdiction notions like "fairness"
and "comity." One example is the categorizing of sites
based on their use, defining as "active" those sites
that engage in commercial transactions. At the other end of the
spectrum are "passive," or information only sites. The
latter are generally not grounds for the exercise of personal
jurisdiction. In between are sites where there is an exchange
of information, but no commercial transactions. In these cases,
courts have been troubled, attempting to evaluate the level of
activity in determining if jurisdiction is present. Presumably,
the greater the activity, the more likely to a court will find
personal jurisdiction.
In reviewing related court opinions it is certain that inventive
solutions proposed by courts and counsel are necessary in addressing
the array of legal problems the Internet presents. A prospective
student of mine once inquired, "What is Internet law?"
It is, in effect, every subject of the law applied to a new, structurally
different medium. A medium ignorant to all the federalist principles
on which our legal system rests.
In representing such clients, be mindful and creative in proposing
to courts novel remedies to the tough problems that the Internet
creates.
For detailed discussion see Zippo Manufacturing
Co. v. Zippo Dot Com, Inc. 952 F. Supp. 1119 (W.D.Pa.
1997).
Donald W. Wruck, III, is a 1999 graduate of Valparaiso University
School of Law. He is in private practice in Dyer, Indiana, and
teaches Internet Law at Valparaiso University. www.wrucklaw.com
|
