U. Kohl (UK)
Jurisdiction, Internet, Rule of Law, Foreseeability
This paper examines the argument about the illegitimacy of transplanting territorially based regulation to cyberspace based on the fact that online actors do not and cannot know when they cross national borders. This makes it unfair to expect them to comply with national laws and to impose sanctions for disobedience. The paper argues that the ability of individuals to predict the legal consequences of their actions, ie. being on constructive notice of applicable legal rules, is an essential requirement for any legal system which purports to uphold the rule of law. It further argues that far from ignoring this requirement, courts have been conscious of it and generally made the legal accountability of online actors contingent upon the foreseeability of the relevant legal rules. While this is most clearly apparent in the US ‘online’ case law on personal jurisdiction, it also underlies, albeit less explicitly, the reasoning of the controversial French Yahoo judgment and the German Toben case. The latter cases highlight that it is not the absence of constructive notice but the burden arising from having to have actual notice of, and complying with, the laws of multiple States which is the real problem regulators face in respect of the online world.
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