No longer do you have to travel to another country to be at risk of breaking that country’s laws. These days we can sit at home or at work and travel from country to country through cyberspace only to find out later we may have committed a crime or civil wrong in any number of lands.
Each country has the right to apply its laws over any action that takes place within its borders. Any action in cyberspace has a corresponding action in the real world. If someone in Guatemala accesses your web site then you may be found to have published a document on that person’s computer in Guatemala. Similarly, if you gain access to a company’s computer system which is located in China, then you have accessed a physical computer in China.
The reason why there is a real risk of being found liable in another country is because of the ease with which people can publish over the internet. Cyberspace offers many different forms of publishing, such as email, websites, bulletin boards and newsgroups. As long as your website is accessible to the rest of the world, then your liability could potentially extend that far.
In Playboy Enterprises v Chuckleberry Publishing, a US Court ordered Tattilo Editrice to take steps to ensure that its Playmen websites were inaccessible to US residents. Fourteen years earlier, in 1981, Tattilo had been restrained from selling a magazine called Playmen in the US.
Tattilo had argued it was not distributing its product in the US but merely posting pictures on a computer server in Italy. However, the court found that, as the website allowed pictures to be downloaded, then Tattilo was in fact distributing its pictures in the US.
This notion of publishing was also recently explored when Joseph Gutnick, a Melbourne entrepreneur, sporting and religious icon, brought proceedings against the US company Dow Jones for allegedly publishing defamatory statements on its website.
Counsel in this case likened publication over a website to an 1848 case when the court had ruled that publication of a newspaper had taken place when the Duke of Brunswick’s servant took delivery of the newspaper.
Being found liable in another country is one issue but having that judgement enforced on you is another.
One of the most well-known cases on the issue of enforcement is the “Four Pillars” case. A Taiwanese businessman, Pin Yen Yang, and his daughter Sally Yang negotiated with an employee of Avery Dennison, a company that produced labelling and adhesive products, to obtain trade secrets. Unfortunately for the Yang’s, that employee was cooperating with the FBI in an undercover capacity.
The case was brought under the US Economic Espionage Act 1996. The Yangs and Mr Yang’s company, Four Pillars Enterprise Company, of Taiwan were convicted on charges of mail fraud, wire fraud, money laundering, receipt of stolen property and theft of trade secrets.
The Yangs were arrested by FBI agents on arriving in the US on the way to New York to see the US Tennis Open.
This case also illustrates what is known as “long arm jurisdiction” where a country asserts jurisdiction over actions that occur within its borders, regardless of where the person committing the action resides.
Parkinson is a partner and Fuller is a senior solicitor in Clendon Feeney’s technology law team. Email Averill Parkinson.