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Showing posts with label jurisdiction. Show all posts
Showing posts with label jurisdiction. Show all posts

Is Facebook carrying on business in Australia

 A recent decision in Australia, concerning whether Facebook could be served in California, was decided by the Federal Court of Australia.  This case arises out of a privacy action brought against Facebook by ACMA in relation to the Cambridge Analytics issues.

"It might be added that the means by which entities carry on business are constantly evolving. Much of the case law in which the concept has been discussed was decided long before the technological advances which underpin many modern forms of commerce. Ultimately, the question whether a particular entity carries on business, and does so in a particular place, is determined by reference to the particular facts. 

The Commissioner submitted that she had established a prima facie case that Facebook Inc carried on business in Australia through a combination of two matters: first, through the agency of Facebook Ireland; and secondly, through certain activities for which Facebook Inc was directly responsible in Australia. ...

Rather, the evidence on this application suggests that, to the extent Facebook Ireland carried on business in Australia, it was carrying on its own businessThe evidence adduced on this application and the inferences available to be drawn do not sufficiently allow for a possible conclusion that Facebook Ireland was also carrying on Facebook Inc’s business to warrant permitting service out of the jurisdiction.

However, for the reasons given next, the Commissioner has established a sufficient prima facie case to warrant exposing Facebook Inc to litigation in Australia on the basis that Facebook Inc directly carried on business in Australia. On its case, a part of Facebook Inc’s business was to provide services to Facebook Ireland, including the processing activities referred to earlier. I am satisfied that there is a prima facie case that Facebook Inc carried out sufficient activity in Australia in its business of providing services to Facebook Ireland for a conclusion to be available that Facebook Inc carried on business in Australia within the meaning of s 5B(3)(b) of the Privacy Act. ...

I am satisfied that the Commissioner has established a prima facie case, in the required sense, that Facebook Inc carried on business in Australia within the meaning of s 5B(3)(b). In summary, the Commissioner has established a sufficient prima facie case that Facebook Inc carried on business in Australia which included providing services to Facebook Ireland."

Australian Information Commissioner v Facebook Inc (No 2) [2020] FCA 1307

Facebook in Court over Cambridge Analytics

This recent Australian judgment concerns substituted service on Facebook.  It relates to Cambridge Analytics breach.  Interestingly, it discusses COVID-19.  Facebook did not appear in court.
Australian Information Commission v Facebook Inc [2020] FCA 531

Jurisdiction over Google

In Canada, on June 13, 2014, a Canadian court issued an injunction requiring Google to remove certain websites from its internet search results worldwide. Those websites were operating in violation of previous court orders and were being used to market a product that the plaintiffs say was developed through theft of their trade secrets.  The injunction granted was on a worldwide basis.

The injunction was upheld by both the Court of Appeal and the Supreme Court of Canada, but Google then obtained an order from a California court making it unenforceable in the United States. Google now applies to set aside or vary the injunction.  Google was unsuccessful.

See Equustek Solutions Inc. v. Jack, 2018 BCSC 610 https://www.bccourts.ca/jdb-txt/sc/18/06/2018BCSC0610.htm

Comments in this Canadian Blog

X v. Twitter


A case in NSW requiring Twitter to remove posts on a worldwide basis that contained confidential information.


Comment in this blog post.

Privacy Guidelines in Australia

The Privacy Guidelines are no longer consultation drafts – the final version was released today (link below).

They have reversed their view on the application of the Privacy Act to foreign website operators.  So much so that the guidelines now conclude that “Where an entity merely has a website that can be accessed from Australia, this is generally not sufficient to establish that the website operator is ‘carrying on a business’ in Australia

Lessig v. Liberation over takedown notice

Professor Lessig has sued Australian music label Liberation in the U.S. in relation to a computer generated take down notice sent to YouTube, to take down video of Lessig giving a seminar in Asia that included music licensed exclusively to Liberation in Australia.

If this case proceeds, there are interesting jurisdictional and fair use / fair dealing points that arise.  If the use of the music was fair use in the U.S., but not fair dealing in Australia, and the video is available in Australia, one would assume that there is copyright infringement in Australia.

Brisbane Times article
The video in question
EFF press release

Google and Defamation and Jursidiction

Google Australia has a defamation case against it tossed out, on the basis that it is Google Inc. that is operating the search engine and Blogger.

See SMH

Google Australia does not control the Google search engine

Google Australia Pty Ltd does not like being sued in Australia.  In a recent Australian lawsuit, Google said:

  • Google Australia is a wholly owned subsidiary of Google International LLC and Google Inc is the ultimate holding company 
  • Google Australia is not authorised to, and has no ability to, control or direct the conduct of Google Inc and is not responsible for the day-to-day operations of Google Inc 
  • Google Inc owns and operates the domains google.com.au and google.com. The search engines at the domains mentioned are exclusively provided by, operated by, and controlled by Google Inc 
  • Google Australia does not have any ability to control or direct action in respect of blocking URLs from google.com.au

The Australian court found: "There is no reasonable prospect of Mr Rana proving that Google Australia owns the domains in question, or that it has the ability to control or direct the conduct of Google Inc."  Thus, the claims against Google Australia were dismissed.

The Court also stated:
"In short, whether or not a search engine could be considered a publisher of defamatory material is not settled in Australia, and accordingly, it would not be appropriate to refuse to give leave to serve the proceedings and on that basis effectively dismiss Mr Rana’s claim against Google Inc: A v Google New Zealand Ltd"

See Rana v Google Australia Pty Ltd [2013] FCA 60 

You Can't Say That on The Internet

A BASTION of openness and counterculture, Silicon Valley imagines itself as the un-Chick-fil-A. But its hyper-tolerant facade often masks deeply conservative, outdated norms that digital culture discreetly imposes on billions of technology users worldwide.

See NY Times

Google Sued in New Zealand, and wins

Google NZ was sued for defamation.  The lawsuit was dismissed on summary judgment, because it was decided that the Google NZ entity was not carrying on business in New Zealand and had no control over the search engine.  The court left open the question of whether Google is responsible for defamatory material that it produces from its search engine.
See NZ Court Decision (A v. Google New Zealand Ltd) and comment.

International Online Shopping

U.S. stores are shipping to customers in Australia.

"International visitors are coming to American sites because of lower prices and the availability of products they cannot get in their own countries, according to Forrester. Macy’s has found that Australian shoppers are particularly interested in its trendy clothes, while Canadians want basics like coats, shoes and underwear."  See NYT

What legal issues could arise for the U.S. sellers and the Australian buyers?

Week 3 - Internet Jurisdiction

The next class is Internet jurisdiction. 
Presentation from class is here.
Please read the following:
The relevant chapter in the assigned class text.





Sliding Scale Test:

Zippo case

Effects Test:

Calder v. Jones (US Supreme Court)

Application of Effects Test:


Weather Underground case (and complete court file for this case if interested)

Penguin Group v. American Buddha


Australian approach:

Dow Jones v. Gutnick (High Court of Australia)

[Defamation - including Internet cases - background information if interested]


What happens if the Defendant does not show up?

Bell v Steele (No 2) [2012] FCA 62 (7 February 2012) - a case that involves a film made in NY and Australia by Richard Bell from Brisbane, that was uploaded to Vimeo from Australia, and where a person in NY had the film removed from Vimeo.


Could two courts come to an inconsistent result in the same case?
See The Secret litigation:
Background: The Australian


  • Australian Trial Judge Decision
  • Full Court of Federal Court Decision
  • Note regarding US decision on jurisdiction
  • Jurisdiction: Penguin v. American Buddha

    See this decision from the highest court in NY: Penguin Group v. American Buddha

    The case concerns whether NY courts have jurisdiction in a copyright case, involving a website controlled and located out of NY State. The Court decided that the situs of the injury was the location of the copyright holder -- i.e., in New York.

    Class 3 - Internet Jurisdiction

    The next class is Internet jurisdiction. In addition to the notes in the Study Guide, please read the following:


    Sliding Scale Test:

    Zippo case

    Effects Test:

    Calder v. Jones (US Supreme Court)

    Application of Effects Test:


    Weather Underground case (and complete court file for this case if interested)



    Australian approach:

    Dow Jones v. Gutnick (High Court of Australia)

    [Defamation - including Internet cases - background information if interested]


    Queensland Police information

    Could two courts come to an inconsistent result in the same case:
    See The Secret litigation
    See also prior posts if interested, for example.

    Internet Jurisdiction

    The next class is Internet jurisdiction. In addition to the notes in the Study Guide, please read the following:

    Sliding Scale Test:

    Zippo case

    Effects Test:

    Calder v. Jones (US Supreme Court)

    Application of Effects Test:


    Weather Underground case (and complete court file for this case if interested)


    Australian approach:

    Dow Jones v. Gutnick (High Court of Australia)

    [Defamation - including Internet cases - background information if interested]


    Queensland Police information

    Could two courts come to an inconsistent result in the same case:
    See The Secret litigation
    See also prior posts if interested, for example.

    Penguin Jurisdiction Case

    Penguin IP Suit V. Web Site Can't Fly In NY: Judge
    A federal judge has tossed a copyright case brought by Penguin Group USA Inc. against a Web site that posted Upton Sinclair's "Oil!" and several other Penguin works online, citing a lack of personal jurisdiction in New York.

    Jurisdiction

    The class on Tuesday will focus on jurisdiction issues.

    If you want to do some extra background reading, a recent case concerning The Secret documentary and book has both Interent and jurisdictional issues. It is more important for copyright law, but is an interesting diversion for Cyberlaw.

    Background: The Australian

    Australian Trial Judge Decision
    Full Court of Federal Court Decision

    US Lawsuit
    Note regarding US decision on jurisdiction
    Motion Judgment

    Dan Hollings Case.

    The Secret Litigation

    There is currently a copyright litigation regarding the DVD and best selling book, The Secret.

    The Director, Drew Heriot, is suing Rhonda Byrne in Federal Court in Chicago. Byrne's Eastern European company, TS Productions, is suing Drew in Federal Court in Melbourne, Australia.

    Although these cases do not directly concern the Internet, they raise interesting questions regarding jurisdiction and appropriate forum.

    I am representing Drew Heriot.

    See: http://www.nytimes.com/2008/04/26/arts/26secr.html
    and
    http://www.theaustralian.news.com.au/story/0,25197,24223394-5012694,00.html

    Jurisdiction: Maryland v. Carefirst Pregnancy

    Carefirst of Maryland v. Carefirst Pregnancy, a 4th Circuit Court of Appeals decision involves issues of Internet jurisdiction. The court ruled that absent a manifest intent to target residents of the forum, a semi-interactive website with a localized focus based in a foreign state is not sufficient to confer personal jurisdiction. The fact that web hosting services occurred within the forum state was not seen as relevant.
    Decision at http://laws.findlaw.com/4th/021137p.html

    Hacktivist raided

    Swiss Hacktivist was raided at the request of U.S. authorities for data theft and then publishing what was hacked. https://amp.9news.com.au/...