Internet Jurisdiction – Based on Location of Server?

A recent English court case, Football Dataco Ltd et al. v Sportradar GmbH [2010] EWHC 2911 (Ch), has held that at least for some purposes, the jurisdiction of a court over Internet content should be based on where the server was located, and not where the information online was read or used.

This seems to me to be half right. Jurisdiction should not be based on where the information was read or received, unless there is some separate activity going on there. But the location of the server should be irrelevant too. It is the location of the business that transmits the disputed information, or the controlling minds of the transmitter, that counts.

The court went on about the parallel to jurisdiction over satellite broadcasts, which have been the subject of an EU directive. The directive does not make the jurisdiction outer space, however… The point is to get at the people responsible for the bad activity, where they actually are.

Canadian law is largely consistent with the idea that the location of the server is not important. The Canadian Human Rights Commission decided it could hear a case against Ernst Zundel based on his web site, though the site was hosted in the United States. The Alberta Securities Commission decided it could hear a case against the World Stock Exchange though it was hosted in Antigua. The Supreme Court of Canada (I suppose I should start with them!) decided in a copyright case that one had to look at a real and substantial connection between the defendants and the jurisdiction of the court – or administrative tribunal – but not at where the server happened to be.

So it was fair enough for the English court not to take jurisdiction over some of the disputed activities of the Swiss and German defendants. IMHO it should have declined to hear the case not because the server was not in England, but because the defendants were not. (The court did allow some of the claims to proceed in England.) Servers are too mobile, and in any case are irrelevant to the activities. No one interested in the content of the Internet cares where the servers are.

Two qualifications:

  1. Tax law may care where the servers are in deciding if a business has a permanent establishment in a country. Physical assets – like a server – count as such assets for this purpose. But that is not a matter of the content that is distributed by, or even held in, the server.
  2. One may be interested in finding the server to enforce a judgment, if one could stop propagation of content by seizing or ordering the alteration of the server. (The server may be an asset to be seized and sold, for that matter.) But servers and content distribution systems are so readily moved that enforcement of content restrictions against them is unlikely to be very effective.

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Comments

  1. A third factor may complicate jurisdictional factors. Since expiration of copyright varies from country to country, the physical location of a work of art may be of importance. Suppose that I, a Canadian resident, personally photograph a work of art painted and published by Paul Klee in 1924; I do this while visiting an American museum, which is the painting’s current owner. I decide to publish the photo on my commercial internet site, which is hosted on a server located in the UK.

    I agree that the server location should not be considered relevant. Because Klee died in 1940, his work is no longer copyrighted in Canada, which imposes a year of death + 50 rule. However, the American museum might claim that since the painting was published after 1923, by American law I am not free to post my photo on my website. Which national copyright law would be considered legally binding on me?