Sour Grapes
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The Internet: Phase III

Micheal Geist's BNA Internet Law News (ILN) points today to a report titled "Global Internet Jurisdiction" and to his regular column in the Toronto Star about this report. It was prepared by a jointly by the by the Cyberspace Law Committee of the American Bar Association and the Internationl Chamber of Commerce. It is the result of a survey of 277 companies in 45 different countries. Geist chaired the project. N.B. I have not read the report, only the column, from which the quotes below are taken.

The survey distribution was designed to encompass small, medium, and multinational companies and cut across all business sectors including media companies, IT and financial service companies, and retailers.

The 277 responses suggested that there is considerable concern over the challenges presented by Internet jurisdiction, though a divide is emerging on the issue between North America on one side and Europe and Asia on the other.

By a ratio of six to one, North American companies said that the Internet jurisdiction issue has become worse over the past two years and four of every five companies said they feel that matters will worsen by 2005.

In contrast, responding Asian and European companies thought that the risk associated with the issue has improved since 2001 and will improve further by 2005....

...[W]hen companies were asked which jurisdictional issues posed the greatest concern, first on the list was actually litigation risk.

This suggests that the risk of being pulled into court is the biggest fear of companies operating online, exceeding concerns associated with conflicting legal frameworks. Other notable concerns included industrial and consumer regulations, e-commerce regulation, taxation, and privacy....

...[I]t is the media sector that was clearly the most affected by Internet jurisdiction....

...The survey also revealed that some companies, particularly those situated in North America, now seek to influence jurisdictional outcomes by using both technological and legal approaches to mitigate risk.

The most common methods to achieve this include the insertion of legal terms on Web sites, the use of a local server, the use of a national (country-code) top domain name, or the posting of local content.

North American companies are also more likely to attempt to identify the geographic location of their users or refrain from interacting with people in certain jurisdictions....

...Companies are increasingly refraining from interacting with certain "higher risk" jurisdictions citing fears of liability in the target jurisdiction, liability in the home jurisdiction, and user fraud as the primary reasons for doing so.

They attempt to achieve this by employing technical measures to block access to their site or by establishing registration requirements. The use of geo-locational technologies, which purport to identify the location of Internet users, is still relatively rare....

...As the roller coaster ride of Internet law rules continues, it is becoming increasingly apparent that business approaches to the Internet are also changing. This new survey suggests that businesses are starting to proactively respond to Internet jurisdiction risk by adapting their approach to e-commerce. If the dust ever settles, the online businesses of tomorrow may be quite different from what exists today.

(Was I not issued the Internet style manual that seems to require most paragraphs in a news report to be a single sentence?)

When I first started using the Internet, it was wild and wooly and lots of fun—most sites were the work of highly motivated individuals. Then commercial exploitation became the prime mover of the Internet. Not that they weren't motivated; just that I wasn't motivated to join them or assist them in any way. Just the opposite. It seems to me that we are now headed toward a third era when government—be it governments of nations or trans-national governments such as ICANN [supposedly], the World Trade Organization or the United Nations—is likely to become the biggest influence on what the Internet is. This will not usurp commercial exploitation, but will rather enhance it, since commercial entities have the most influence on governments. But it will certainly reduce freedom of expression and the voice of the individual. Not a Good Thing™, IMNSHO.

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