AUSTRALIA -- Mallesons Stephen Jaques
American Bar Association

Transnational Jurisdiction In Cyberspace Project

Comments - Australia
prepared by
Mallesons Stephen Jaques
Solicitors
Sydney, Melbourne, Brisbane, Perth, Canberra, Hong Kong, London
November 30, 1999

Abridged by Devashish Bharuka
For the full version of the excerpt of the Report, click here




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Question 1. What is the jurisdictional relevance of the presence on a stateís territory of the Internet network infrastructure, such as a server?

There are no decided cases or national legislation dealing with this exact issue in Australia. Where a defendant is located outside of Australia, the existence of a server in Australia may be sufficient to provide the Australian court with personal (adjunctive) jurisdiction. Many Australian laws explicitly require a nexus with Australia, but this nexus is often described generally in the legislation. The legislation in question must be considered to determine whether network infrastructure provides sufficient jurisdictional nexus.

Electronic Transactions Act 1999 (ETA):
The ETA is designed to facilitate the development of electronic commerce in Australia. Section 14 of the ETA sets out default rules governing, among other things, the place of dispatch, and receipt of electronic communications in the absence of agreement to the contrary by the parties. Under this section, an electonic communication is taken to have been dispatched at the place where the originator has its place of business; and received at the place where teh addressee as its place of business. In case of more than place of business, one with a closer relationship to the underlying transaction is relevant. In case none of those places have a closer connection, the party's principal place of business is taken into consideration. If there is no place of business, the plae where that party ordinarily resides is taken as the place of business. These default rules reflect the fact that "the physical location of information systems is often irrelevant to the use and purpose of the electronic communication. Reasons include that an information system can be in a different place to where the parties to that communication are located; and it is often easier to determine the place of business or residence than to determine the location of an information system from which that communication was set or received.

Copyright Amendment (Digital Agenda) Bill 1999 (CAB):
CAB states that the mere provision of Internet network infrastructure alone in Australian territory irrelevant in relation to copyright infringement cases. However, if a carrier or ISP becomes aware of acts of copyright infringement in Australia facilitated by use of their Internet network infrastructure, then that carrier or ISP may, under the CAB, be taken to have authorised those infringing acts if they have power but fail to take reasonable steps to prevent the continuance of those acts. In these circumstances, the provision of Internet network infrastructure in Australia may become relevant to the exercise of prescriptive jurisdiction by the Australian government over foreign carriers and ISPs.

We are not aware of any Australian case law which discusses the jurisdictional relevance or otherwise of the presence of Internet network infrastructure on a Stateís territory. It appears to us that a general principle has emerged from the US authorities, namely, that the presence on a stateís territory of Internet network infrastructure is not a conclusive factor in determining the appropriate jurisdiction in relation to activities conducted over the Internet.

Commentators have stated that there may be confusion and injustice if a court attempted to exercise jurisdiction in Internet cases over persons based on the physical location of the Internet network infrastructure. For example: If the location of the Internet network infrastructure was determinative of jurisdiction, Internet users could use that fact to manipulate the jurisdiction in which an activity is deemed to occur to circumvent laws and to choose the jurisdiction most favourable to them.
 

Question 2. What is the jurisdictional relevance of maintaining a web site?

As in relation to many other issues regarding jurisdiction and the Internet, there is currently little guidance either in Australian legislation or in Australian case law regarding the jurisdictional relevance of maintaining a web site. The Australian position on the jurisdictional relevance of maintaining a web site remains largely untested.

The sole Australian decision regarding jurisdiction on the Internet is Macquarie Bank & Anor v Berg, handed down by Simpson J of the New South Wales Supreme Court on 2 June 1999.

This case relates to the alleged defamation of Macquarie Bank ("MBL") and Andrew Downes by the publication of certain material on a web site thought to be operated by the defendant. Since May 1999, material containing defamatory imputations about the plaintiffs had been published on a web site. The plaintiffs sought an injunction to prevent the defendant from publishing the defamatory material on the web site in question. On the available evidence, the defendant was believed to be in the US, and any acts done by him that resulted in the publication of the defamatory material on the web site were done outside of New South Wales.  refusing to grant the injunction sought, Simpson J held that it would "exceed the proper limits of the use of the injunctive power of the (New South Wales) court." The Judge found that the consequence of granting an injunction in the terms sought would restrain the defendant from publishing the relevant material anywhere in the world via the Internet. It would interfere with any rights that the defendant may have to publish that material in another jurisdiction. Simpson J also found that it would be difficult to enforce the injunction while the defendant remained outside of New South Wales.

Simpson Jís decision asserts that maintenance of a web site that is accessible in a particular jurisdiction does not of itself give the courts jurisdiction over the defendant in that jurisdiction. However, Simpson J did not apply the sliding scale test that has been proposed in some US cases in analysing the jurisdictional issue.  Simpson Jís decision relied in part on the assumption that the prohibition on publication and dissemination of the defamatory material could not be limited to New South Wales.

Macquarie Bank is the decision of a single judge of a New South Wales court, and is not binding on higher courts or courts in other Australian States or Territories. Accordingly, the Australian position on the jurisdictional relevance of maintaining a web site remains uncertain.

Question 3. If a web site author cannot prevent access to its site from any country, what is the jurisdictional effect of a geographic disclaimer on the site?

We are not aware of any law dealing with this topic in Australia. A geographic disclaimer may show an intent to deal only with Internet users in a particular country. However, if other circumstances exist, a geographic disclaimer may be given little weight by Australian courts when considering jurisdictional questions. For example, if a Canadian website stated "Intended for Canadian residents only", but the website owner sent email advertisements for the site to Australian users, or sold goods across the website to Australian consumers, or in other ways targeted Australian residents, the geographic disclaimer is likely to be of little effect. A number of Australian websites have jurisdictional disclaimers, which suggest that legal advisers in Australia are recommending their use.

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