European Union Claims of Jurisdiction over the Internet

• Author: Dan Jerker B. Svantesson
• Position: Professor and Co-Director, Centre for Commercial Law, Faculty of Law, Bond University (Australia). Researcher, Swedish Law & Informatics Research Institute, Stockholm University (Sweden)
• Pages: 113-125

European Union Claims of Jurisdiction over the Internet

2018

113

2

European Union Claims of

Jurisdiction over the Internet

An Analysis of Three Recent Key Developments

by Dan Jerker B. Svantesson*

© 2018 Dan Jerker B. Svantesson

Everybody may disseminate this ar ticle by electronic m eans and make it available for downloa d under the terms and

conditions of the Digital P eer Publishing Licence (DPPL). A copy of the license text may be obtain ed at http://nbn-resolving.

de/urn:nbn:de:0009-dppl-v3-en8.

Recommended citation: Dan Je rker B. Svantesson, European Union Claims of Jurisdiction over the Int ernet – an Analysis of

Three Recent Key Development s, 9 (2018) JIPITEC 113 para 1.

law contribute to hyper-regulation. Those three de-

velopments are: (1) Article 3 of the General Data Pro-

tection Regulation (GDPR) which outlines the Regu-

lations “territorial scope”; (2) The combined effect of

the proposed e-evidence Directive and the proposed

e-evidence Regulation; and (3) the Court of Justice of

the European Union (CJEU) decision in Bolagsupplys-

ningen OÜ. The article also provides an analysis of re-

cent trends and draws some conclusions as to how

we may best move forward in this field.

Abstract: The topic of Internet jurisdiction is

gaining a considerable amount of attention at the

moment. Yet, we are seemingly still a long way from

solutions. This article builds on the notion that we are

presently in an era of jurisdictional “hyper-regulation”

characterised by complexity and a real risk of Inter-

net users being exposed to laws in relation to which

they have no realistic means of ensuring compliance.

Drawing upon a framework consisting of three juris-

dictional core principles, the article seeks to exam-

ine whether three recent key developments in EU

A. Introduction

1

When we engage in activities online, we are bound by

law. While this may have been a controversial claim

in the mid-90s, it is today little more than a truism.

But the details of this truism remain contentious;

that is, while it is clear that we typically must abide

by the laws of the state in which we are located when

engaging in the relevant online activity, to what

extent do we also – at the same time – need to abide

by other states’ laws? This is by no means a novel

issue. I have myself written about it for almost 20

years, others have considered this matter for an even

longer time,

1

and there are numerous interesting,

* Professor and Co-Director, Centre for Commercial Law,

Faculty of Law, Bond University (Australia). Researcher,

Swedish Law & Informatics Research Institute, Stockholm

University (Sweden).

new approaches being advocated.2 Despite the

frustratingly many hours people have devoted to

thinking about and debating this matter, it remains

a “live” issue today.

2

To understand the complications involved, we must

rst realize that the number of laws a person is

expected to comply with when engaging in online

1 Consider, for example, the important works of Johnson and

Post, “Law and Borders - The Rise of Law in Cyberspace”,

48 Stan. L. Rev. (1996), 1367; Reidenberg, “Lex Informatica”,

76(3) Tx. L. Rev. (1998), 553; Menthe, “Jurisdiction in

Cyberspace: A Theory of International Spaces”, 4 Mich.

Telecom. & Tech. L. Rev. (1998), 69; Goldsmith, “Against

Cyberanarchy”, 65 U. Chicago L. Rev. (1998), 1250; Geist,

“Is There a There There? Towards Greater Certainty for

Internet Jurisdiction”, 16 Berkeley Tech. L.J. (2001), 1345.

2 See, e.g., Lutzi, “Internet Cases in EU Private International

Law— Developing a Coherent Approach”, 66 ICLQ (July

2017), 687–721, and Taylor, “Transatlantic Jurisdictional

Conicts in Data Protection Law” (forthcoming).

Keywords: Internet jurisdiction; GDPR; hyper-regulation; law enforcement; CJEU; scope of jurisdiction;

e-evidence; substantial connection; legitimate interest; interest balancing