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II. CYBER-TORTS AND PERSONAL JURISDICTION: THE PARIS COURT OF APPEAL MAKES A STAND

Published online by Cambridge University Press:  24 April 2009

Natalie Joubert
Natalie Joubert
Affiliation:
Maître de conférences University of Bourgogne, member of the Centre de recherche sur le droit des marchés et des investissements internationaux (CREDIMI).
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Type
Current Developments: Private International Law
Information
International & Comparative Law Quarterly , Volume 58 , Issue 2 , April 2009, pp. 476 - 484
Copyright
Copyright © 2009 British Institute of International and Comparative Law

In matters of tort (such as infringement) committed on the internet, the question of whether a court is competent in respect of website activity and may therefore exercise jurisdiction over a defendant with no physical presence in the forum State is currently a widely debated issue.

Under EU lawFootnote 1 priority is afforded to the place ‘where the harmful event occurred or may occur’Footnote 2 a ground equally available under certain domestic laws.Footnote 3 Of course jurisdiction could also be based on the defendant's domicile, a basis recognized in many legal systems. However, none of these rules specifically addresses the issue of internet-related cases, so it is not obvious which court should have jurisdiction over a dispute involving a tortious act committed on the internet. The question is whether the mere fact a website can be accessed from the forum State should constitute a basis of jurisdiction or whether it is necessary to find further elements evidencing a closer connection to the forum.

The first solution could lead to the unlimited jurisdiction of each forum over all disputes involving tortious acts committed on the Web, since websites can be accessed from anywhere. For example, the infringement of a French patent on the Web would automatically lead the French courts to exercise jurisdiction over the resulting dispute simply because the website can be accessed in France.

Yet this is the solution chosen by a number of national courts, the Cour de cassation among them, and it is this very excessive solution that first and second instance courts in France and abroad are attempting to fight. After presenting the latter jurisprudence and how it sets out a reasonable approach to the issue of jurisdiction (I), consideration will be given to the issue of the contacts between dispute and forum that give jurisdiction its proper basis (II).

A. A Reasonable Approach to the Issue of Jurisdiction

While some courts will exercise jurisdiction where a website can simply be accessed from the forum State (A), others require further contacts between dispute and forum State, thus leading to a reasonable limitation of jurisdiction based on such essential principles as the right to a fair trial embodied in the European Convention on Human Rights (B).

1. The mere fact that a website can be accessed from the forum state should not constitute a basis for jurisdiction

The jurisprudence of the Cour de cassation, can easily be criticised, as it concerns the mere fact that a person in the forum State can access the website as a sufficient basis of jurisdiction over the website owner.Footnote 4 However, it does not follow from this very extensive solution that the claim will necessarily succeed on the merits, as the analysis of whether infringement or unfair competition has in fact been committed will often lead the court to dismiss it on the grounds that the website was not directing its activity towards the forum State.

This jurisprudence, insofar as jurisdiction is concerned, was also applied in Australia in the leading Gutnick case,Footnote 5 in which the High Court of Australia allowed an action against a foreign defendant on the sole basis of an Internet download in that country. However, this was a case of libel and jurisdiction was therefore based on the mere fact the libellous article had been downloaded by a paying subscriber residing in Australia. An Australian court might likely declare itself forum non conveniens if the claim brought before it concerned a tort committed on a totally passive Website, ie a website with no effect in the forum State. In other words, even if jurisdiction existed, it may not be exercised. In civil law countries there is no such safeguard as the plea of forum non conveniens,Footnote 6 so basing jurisdiction on the mere fact that the website can be accessed from the forum State seems all the more exorbitant as it means basing it on a very tenuous contact between dispute and forum State.

2. The justification of the minimum contacts requirement

The legitimacy and appropriateness of a jurisdictional basis that leads to universal—and often exorbitant—jurisdiction and encourages forum shopping should be questioned in light of the principles of reasonableness and the right to fair trial.Footnote 7

Indeed, a jurisprudence based on the minimum contacts standard could result in less aggressive exercising of jurisdiction—provided it were applied objectively. This minimum contacts test is an application of the test of sufficient contact to the forum State widely found in comparative law,Footnote 8 which requires the court to check whether it in fact has jurisdiction, ie if there are sufficient contacts between the defendant or the dispute and the forum State to constitute the basis of its jurisdiction. This requirement, which leads the courts to restrict their jurisdiction to cases in which such jurisdiction seems reasonable, can be found for example in the German legal system.Footnote 9 Although jurisdiction there is in principle based on strict, compulsory jurisdiction rules, in certain instancesFootnote 10 a German court will subsequently confirm (where a sufficient contact exists) or deny (where no such contact exists) that it has jurisdiction. This solution is to be distinguished from forum non conveniens because the court will not search for the most appropriate forum but only check whether there are sufficient contacts (such as could arise from the relationship of the defendant to the forum State or from the dispute itself) to justify the exercise of jurisdiction to which it is prima facie entitled. Therefore, this sufficient contact requirement seems necessary in light of the right to a fair trial protected by Article 6 of the European Convention on Human Rights.Footnote 11

In fact, a jurisprudence basing jurisdiction on more than the mere fact that the website can be accessed from the forum State is wholly in line with this principle. One should nevertheless address the issue of whether such a flexible approach to jurisdiction based on the minimum contacts standard is possible within the scope of the Brussels I Regulation, since this text actually aims at making jurisdiction matters more predictable through the strict implementation of pre-established jurisdiction rules.

Nevertheless, this flexible approach does not seem totally in contradiction with the principles evolved by the European Court of Justice. In fact, according to the ECJ, jurisdiction should be based on a sufficient contact on the one handFootnote 12 and should be predictable for both defendant and plaintiff on the other hand, yet without giving the plaintiff too much of an advantage and especially without encouraging forum shopping.Footnote 13

According to this theory, the position of the French Cour de cassation in the Cristal case,Footnote 14 while applying the Shevill jurisprudence, does not seem to lead to sufficient predictability regarding jurisdiction, as the defendant might be sued in any country whatsoever. On the contrary, the solution based on the requirement of a sufficient contact to the forum State, though it leads to a case-by-case approach to the minimum contacts requirement, seems to ensure a more predictable outcome from the defendant's point of view—without being too unfavourable to the plaintiff.

Moreover, the Brussels I Regulation itself contains a similar solution. In fact, Articles 15 and 16 relating to jurisdiction over consumer contracts provide that the person who pursues commercial or professional activities (the professional) must direct such activities to the consumer's Member State or to several States including the consumer's Member State on the one hand and that the contract must fall within the scope of such activities on the other hand for the consumer to be able to bring proceedings in that Member State. Consequently, if a consumer, deemed to be in a weak position, cannot sue a defendant before the courts of his (the consumer's) domicile if the defendant's activity is not directed towards the consumer's country, it would be very strange indeed if any plaintiff (ie not necessarily in a weak position) were allowed to sue a defendant there because of the mere fact that his website could be accessed in that country. A solution would therefore be to interpret Article 5.3 of the Brussels I Regulation in a similar way to article 15 with respect to tortious acts committed on the Internet.

B. The Definition of Minimum Contracts

Comparative case law provides many examples of courts requiring more than the mere fact that a website can be accessed from the forum State in order for jurisdiction to be exercised over the defendant's activities on the Internet (A). This solution is to be recommended, provided the minimum contacts between dispute and forum State are assessed objectively (B).

1. Comparative case law

In the US the principle governing jurisdiction rules is that of due process which, embodied in the Fifth and Fourteenth Amendments, limits the exercise of jurisdiction over a person who cannot be served with process in the forum State (ie who is not present in the forum) by requiring minimum contacts between defendant and forum State. The purpose of the minimum contacts test is to ascertain that there are sufficient contacts between defendant and forum State ‘such that maintenance of the suit does not offend traditional notions of fair play and substantial justice’.Footnote 15 Minimum contacts can be found for example in continuous but limited business relationships, but courts will only have jurisdiction if the lawsuit arises in connection with that business relationship (specific jurisdiction).Footnote 16

For this test to be applied, defendants must have purposefully availed themselves of the forum and it must have been foreseeable that they might be sued in the forum State.Footnote 17 Moreover, the exercise of jurisdiction must be reasonableFootnote 18—a highly subjective criterion.

American case law has also evolved specific solutions for Internet cases. Following the Zippo case that introduced the ‘sliding scale’, the courts have to examine the ‘level of interactivity and the commercial nature of the exchange of information that occurs on the web site’.Footnote 19 Consequently, if the website is entirely passive in that it only makes information available, there is not a sufficient basis for jurisdiction.Footnote 20

All of this can be summarized in the subjective concept of targeting. US courts will in fact exercise jurisdiction over a defendant not present in the forum if their web-based activity is targeted at the internal market.Footnote 21 Therefore, the minimum contacts test is mainly based on the defendant's behaviour and the fact that they are voluntarily aiming their activity at the market of the forum State.

In Germany the Bundesgerichtshof has not yet taken a definitive position on the issue of whether the mere fact a website can be accessed from the forum State constitutes a basis for jurisdiction. Nevertheless, some first and second instance courts require more than this single contactFootnote 22. In a leading case, the BGH ruled that the question did not need answering because there existed other contacts showing the website clearly directed its activity towards the German public by using German as its language and offering an online hotel room reservation service. Above all however, the BGH held in a kind of obiter dictum that many elements spoke in favour of a reasonable limitation of jurisdiction in that case in order to avoid universal jurisdiction. Generally speaking, the BGH listed the contacts that showed that the website was targeting the forum State, without setting them as a condition of jurisdiction.Footnote 23

Austrian courts follow a similar logic and systematically point out the contacts between a website and the forum State, such as the use of German and the targeting of the Austrian public, in particular when goods are offered for sale to consumers in Austria.Footnote 24 The OGH even had at times a very case-specific approach, once ruling that the court did have jurisdiction because the website was in German and even though the goods could not be delivered in Austria, they could be delivered in the neighbouring State of Slovenia.Footnote 25

In France the first decisions on the issue were rendered prior to the Cristal judgment and pointed out a number of contacts liable to justify French jurisdiction. In several patent infringement cases the Tribunal de grande instance in Paris ruled in favour of its own jurisdiction on the grounds that the website could be accessed in French, which it construed as evidence that it targeted French clients. Conversely, in a case where the website was in German, the TGI ruled out its own jurisdiction on the grounds that the website could not have been targeting the French public.Footnote 26 The Court of Appeal in Orléans too, in an unfair competition action brought against a defendant domiciled outside the European Union, noticed that not only the website of the Indian defendant could be accessed from France, access was also particularly easy and the website offered purchase orders for downloading.Footnote 27 However, even after the Cristal case decision by the Court of cassation, first and second instance courts, the Paris Court of Appeal first and foremost among them, have continued to require more than the mere fact that the website can be accessed in France as a basis for jurisdiction, thereby sometimes ruling out their own jurisdiction for lack of sufficient contacts. This jurisprudence applies as much to provisional and protective measures, according to the Van Uden doctrine of the ECJFootnote 28 the granting of such measures requires a real connecting link between the subject-matter of the measures sought and the forum State,Footnote 29 as to the merits of the case.Footnote 30

Therefore, the Paris Court of Appeal expressly requires, as set out in decisions within the framework of disputes all arising outside the scope of the Brussels I Regulation, that in each case the courts look for a sufficient, substantial, or significant contact between the facts or acts and the alleged harm so that French courts do not systematically accept their own jurisdiction. Although not all other French courts expressly require the existence of minimum contacts, they point out the elements evidencing that a website was targeted at the forum State, notably through the use of French language.

2. The objectivity requirement

The solution described above could increase the predictability of the jurisdiction issue in cybertort matters, even for disputes arising within the scope of the Brussels I Regulation, provided it is sanctioned by an ECJ decision.

Furthermore, such a position assumes that these contacts focus on objective elements only, leaving no room for the defendant's intent to target activity at the forum State, because the search for the subjective intent of the defendant would on the contrary render the issue of jurisdiction unpredictable (the subjective intent will be scrutinized later, namely within the framework of the proceedings on the merits when ascertaining the existence or not of infringement or unfair competition). This, it is submitted, is the main weakness of the US jurisprudence: not only does it focus on the intent of the website owner to target the market of a country and the foreseeability of the said website owner being sued there,Footnote 31 it also does not really take the contacts between dispute and forum into account. Even Articles 15 and 16 of the Brussels I Regulation do not focus on subjective criteria but on whether it is possible for consumers to order goods.

Possible contacts include such simple criteria as the language of the website, its level of indexing by a search engine, the possibility of buying online and having the goods delivered in or downloading the data from the forum State. Any measures taken by the defendant in order to prevent potential customers from using the website, eg by limiting the number of accepted payment cards, by not delivering the goods in certain states, or by preventing the downloading of data (if technically possible), must also be taken into account.

The French first and second instance courts tend to accept as sufficient contact the sole fact that a website is in French. However, where this is not the case, they will usually look for further contacts because the website is a priori not targeted at French customers.Footnote 32 Therefore, language cannot be the only criterion, even if it is a wholly valuable one:Footnote 33 the courts should also examine whether the activity has a measurable economic impact on the targeted market,Footnote 34 failing which it cannot be considered that damage was suffered there.

Not only are such contacts material, evidence of a causal link between activity and harm, they also serve to locate the harm suffered as a connecting factor for jurisdictional purposes.Footnote 35 Lastly, where the damage is suffered may differ depending on the type of tort.Footnote 36 In matters of unfair competition, it will be necessary to prove some form of active exploitation of the marketplace in the forum State, eg through the sale of goods there, while matters of infringement will require offers to commercialise goods or download data.Footnote 37 In both cases, the website must have objectively targeted the forum State by offering something to the customer; the mere fact that the website could be accessed from the forum State will not suffice. In libel cases on the other hand, the harm occurs where the libelled person is known and alleges to have been libelled—ie often wherever the website can be accessed.

In conclusion, although a case is not made for the general use of a flexible jurisdiction criterion such as Inlandsbeziehung within legal systems where it is not widespread, a more flexible approach to jurisdiction would be particularly suited to cybertorts in that it would prevent the exorbitant exercise of jurisdiction.

References

1 Article 5(3) Brussels I Regulation 44/2001.

2 Thus also allowing preventive legal action to be taken, Case C-167/00 Henkel [2002] ECJ I 8111. This has been interpreted by the European Court of Justice as meaning either the place where the harm was suffered or the place where the tortious act was committed, Case 21/76 Mines de potasse d'Alsace [1976] ECJ and Case C-68/93 Shevill [1995] ECJ I.415, in which the Court restricted jurisdiction based on the place where the harm was suffered to rule solely in respect of the harm caused in the forum State.

3 Such as, in France, Article 46 of the Code of Civil Procedure.

4 Court of Cassation, 1st Civil Division, 9 December 2003, Cristal—a patent infringement case—Bull. I, no 245, D 2004, AJ 276, obs C Manara, RTD Com 2004.281, comment by Pollaud-Dulian, Rev Crit DIP 2004.632, comment by Cachard, JDI 2004. 873, comment by Huet, JCP 2004.II.10055, comment by Chabert; Court of Cassation, Commercial Division, 20 March 2007,—an unfair competition case where jurisdiction was exercised on the mere allegation that marketing was carried out in France-Bull. IV no 91, JCP 2007.II.10088, comment by M-E Ancel, Rev Crit DIP 2008.322, comment by Treppoz. The Cour de Cassation firmly reasserted its position in its annual report: Rapport annuel 2005 de la Cour de cassation, La documentation française, 63 f; see also H Gaudemet-Tallon ‘Droit international privé de la contrefaçon’ D 2008, Dossier 735.

5 Dow Jones & Company, Inc v Gutnick [2002] HCA 56.

6 For a general analysis of the mechanism in French law, see C Chalas, L'exercice discrétionnaire de la compétence juridictionnelle en droit international privé, foreword by H. Muir Watt, PUAM, 2000; A Nuyts, L'exception de forum non conveniens (étude de droit international privé comparé) Bruylant/LGDJ, 2003.

7 C Chalas, cited above; N Joubert, La notion de liens suffisants avec l'ordre juridique (Inlandsbeziehung) en droit international privé, foreword P. Lagarde, Travaux du Credimi 29, Litec, 2007; L Usunier, La régulation de la compétence juridictionnelle en droit international privé, Etude de droit comparé en matière civile et commerciale, Economica, 2007, foreword H Muir Watt: D Bureau and H Muir Watt, Droit international privé, tome II, PUF, 2007, no. 1016 ff; American Law Institute, Intellectual Property, Principles Governing Jurisdiction, Choice of Law, and Judgments in Transnational Disputes, Proposed Final Draft, http://www.ali.org/doc/2007_intellectualproperty.pdf

8 See N Joubert, La notion de liens suffisants avec l'ordre juridique (Inlandsbeziehung) en droit international privé, cited above.

9 N Joubert, cited above, no 35 f.

10 S 23 ZPO, property jurisdiction.

11 P Hammje, La contribution des principes généraux du droit à la formation du droit international privé, PhD dissertation Paris I, 1994, no 685 f; N Joubert, cited above, nos 77 ff.; L Sinopoli, Le droit au procès équitable dans les rapports privés internationaux, PhD dissertation Paris I, 2000, no 8; regarding the issue of whether a sufficient contact as jurisdictional basis—and more generally the reasonableness of jurisdiction—is required by public international law, see N. Joubert, cited above, nos. 17 f.

12 Case C-167/00 Henkel [1 October 2002] 2002, ECJ I p 8111.

13 Case C-168/02 Kronhofer, [10 June 2004] ECJ I 6009; Case C-539/03 Roche Nederland, [13 July 2006] ECJ, M-E Ancel, ‘Contrefaçon de marque sur un site web: quelle compétence intracommunautaire pour les tribunaux français?’, Mélanges Linant de Bellefonds, 2007, Litec, 1–24, specifically nos 16 f.

14 Court of Cassation, 1st Civil Division, 9 December 2003, cited above.

15 International Shoe v Washington, 326 US 310 (1945).

16 On the contrary, general jurisdiction is given when there are substantial and continuous contacts between the defendant and the forum State. The courts will then have jurisdiction over any lawsuit against the defendant.

17 Hanson v Denckla, 357 US 235, 253 (1958).

18 World wide Volkswagen Cor. v Woodson, 444 US286 (1980); Burger King v Rudzewicz, 471 US 462 (1985); Asahi Metal Industry, 480 US 102 (1987); for a more detailed study of the American approach: Tray, ‘Minimum Contacts in Cyberspace: The Classic Jurisdiction Analysis in a New Setting’, (2002) Journal of High Technology Law, 85Google Scholar; Rustad and Koenig, ‘Harmonizing Cybertort Law for Europe and America’ (2005) 5 J High Tech L 13, 20; N Joubert, cited above, nos 406 f, C Chalas, cited above, no 42 f; A Mirandes, La compétence inter-étatique et internationale des tribunaux en droit des Etats-Unis, Paris, Economica, 2002; O Cachard, La régulation internationale du marché électronique, LGDJ Paris, 2002.

19 Zippo Zippo Mfg Co v Zippo Dot Com, Inc, 952 F Supp 1119 (WD Pa 1997); same solution in Cybersell, Inc v Cybersell, Inc, 130 F.3d 414 (9th Cir 1997).

20 Bensusan Restaurant Corp v King, 937 F Supp 295 (SDNY 1996). In other more recent cases, the courts examined whether the defendant had ‘targeted’ the forum state with its business—which means more than just placing its products in the stream of commerce (Asahi)—a test very similar to the effect test developed in Calder v Jones (465 US 783 (1984).

21 This theory was systematized by O Cachard, cited above nos 645 f, under the name ‘théorie de la focalisation’.

22 LG Köln, 20 April 2001, 81 O 160/99, http://www.jurpc.de/rechtspr/20010148.htm; OLG Köln, 24 April 2006, 6 U 145/05; OLG Köln, 30 October 2007, 6W161/07; contra OLG Karlsruhe, 10 July 2002 (Intel Fall) MMR 12/2002, 814.

23 BGH 13 October 2004, Hotel Maritime, IZR 163/02; BGH, 30 March 2006, I ZR 24/03; BGH 15 February 2007, I ZR 114/04; regarding the application of article 15 of the Brussels I Regulation: BGH, 17 September 2008, III ZR 71/08.

24 OGH, 29 May 2001, 4 Ob 110/01g, BOSS, ÖJZ 2001, 848; OGH, 11 August 2005, 4 Ob 98/05y; Czernich, Tiefenthaler and Kodek, Kurzkommentar Europäisches Gerichtsstands- und Vollstreckungsrecht. EuGVVO und Lugano Übereinkommen, (2nd ed, 2004); regarding the old Austrian jurisprudence that required minimum contacts to justify the exercising of jurisdiction (Indikationentheorie), see N Joubert, cited above, nos 466 f.

25 OGH, 29.5.2001, BOSS, cited above.

26 TGI Paris, 11 February and 11 March 2003, Journal du Droit International (2004) 491, comment by JS Bergé.

27 Court of Appeal in Orléans, 6 May 2003, SA les jolies céramiques sans kaolin c/ Sté Mridul Entreprises, Sté Trademark Tiles LTD, Journal du Droit International 2004, 193, comment by A Huet, Revue critique de droit international privé (2004) 139, comment by H Gaudemet-Tallon.

28 Case C-911/95 [17 November 1998] ECJ I, 7091; see M-E Ancel, ‘Un an de droit international privé du commerce électronique’, Communication Commerce Electronique (2007) no 1, no 6; O Cachard, cited above, nos 683 f.

29 On this question, see M-E Ancel, ‘Un an de droit international privé du commerce électronique’, Communication Commerce Electronique (2007) no 1, no 6 who shows that French courts are then looking for a sufficient contact between the claim and the forum to grant provisional or protective measures in the same way as for exercising jurisdiction on the merits because they are in fact looking for jurisdiction on the merits in such cases; TGI Paris, ord. Réf., 2 November 2005, Court of Appeal in Paris, 14 June 2006; TGI Paris, ord. Réf. 11 October 2006.

30 Court of Appeal in Paris, 4th division, Section A, 26 April 2006, SA Normalu c/ SARL Acet, CCE 2006, comm. 106, obs. C. Caron; Court of Appeal in Paris, 4th division, Section A, 6 June 2007, JCP 2007.II.10151, comment by M-E. Ancel, LPA 2007, no 224, comment by Mendoza-Caminade, CCE 2007, Comm no 119, obs Caron; Court of Appeal in Paris, 4th division, Section B, 9 November 2007, D. 2008. AJ 8 obs. Manara, M-E Ancel, CCE 2008, no 1, chron. 1; Court of Appeal in Versailles, 2 November 2006, M-E Ancel, CCE 2008, no 1, chron 1, spec no 14; Court of Appeal in Paris, 4th division, Section A, 18 June 2008, JCP 2008.II.10180, comment by Chabert.

31 O Cachard, cited above, no 661; for a more general criticism of the American jurisprudence, see N Joubert, cited above, nos 424 f.

32 See C Chabert, JCP 2008.II.10180, cited above.

33 JS Bergé, JDI 2004.491.

34 M-E Ancel, CCE 2006, étude 23.

35 E Treppoz, Rev Crit DIP 2008.336.

36 H Gaudemet-Tallon, Dalloz 2008, cited above, specifically no. 8; M-E Ancel, ‘Contrefaçon de marque sur un site web: quelle compétence intracommunautaire pour les tribunaux français ?’, spec n 22.

37 Court of Appeal in Paris, 26 April 2006, cited above.