United States' and Australian principles on internet jurisdiction: A case for Australia to consider United States' hegemony on jurisdiction

The United States and Australia have been facing the issue of internet jurisdiction. The United States is an epitome of a country that has considered the challenges posed by the internet to the traditional law. It has developed its own tests to help resolve the issue, which have evolved over time and in comparison with other jurisdictions, and it has been successful. Conversely, the Australian legal system is in a stage of infancy regarding such challenges and has developed its own approach. This paper focuses on the anomalies between the United States' and Australian principles or approaches to internet jurisdiction by analysing and discussing the three leading cases that are benchmarks in the respective jurisdictions. Finding the fundamental difference between the two approaches, the paper elucidates the United States hegemony on internet jurisdiction by comparing the shortcomings of the respective cases. Finally, this paper makes a case for the Australian courts to consider an approach based on the one practised by the United States courts to tackle the ever-evolving issue of internet jurisdiction.     

Defining Defamation: Community in the Age of the Internet

The ability to instantly communicate with a global audience has created numerous legal uncertainties as jurists struggle to adapt age-old jurisprudence to modern-day technologies —and defamation jurisprudence is no exception. The definition of a plaintiff's community is critical to his or her ability to succeed in a defamation lawsuit, often determining whether the plaintiff is a public figure or whether the plaintiff's reputation has been injured in his or her community. This article examines federal and state defamation jurisprudence to compare the factors courts have used to define community in both traditional print and broadcast cases with the factors used in more recent Internet defamation cases. It then suggests three possible rubrics courts could employ to more uniformly define community in Internet defamation cases.     

Cybercrimes v. Cyberliberties

The broad topic of 'crime and cyberliberties' encompasses two major subtopics: firstly, the extent to which online expression may be punished under new criminal laws, even if it would be lawful in the traditional print media; and secondly, the extent to which online privacy may be restricted to facilitate enforcement of existing criminal laws. In both contexts, many law enforcement officials argue that we have to make trade-offs between, on the one hand, individual rights and, on the other hand, public safety. In fact, though, the alleged dichotomy is oversimplified and misleading. Claims about the alleged unique dangers of online expression are exaggerated, and the types of criminal laws and law enforcement strategies that have worked effectively in other media are also effective in cyberspace. For example, children should be protected from exploitation in the production of child pornography through the same measures, regardless of whether the material is distributed through postal mail or e-mail. Indeed, individuals and organizations who are devoted to protecting children from exploitation and abuse-whether for the production of child pornography or any other purpose-have expressed frustration that resources that should be used to enforce existing laws are being diverted toward efforts to create new cyberspeech crimes, such as the two US laws criminalizing online material that is 'indecent,' 'patently offensive', or 'harmful to minors'. The many judges who have ruled on these laws-including the entire US Supreme Court-have agreed that they violate free expression rights and are not necessary for their stated purpose of protecting children. The battle to preserve online privacy has not been as successful in the US, where the government restricts strong encryption despite the vigorous objections of not only cyberlibertarians, but also the business community. Moreover, even some law enforcement and other government officials have concluded that, on balance, security concerns are aided, not undermined, by strong encryption, since it protects innocent individuals and legitimate businesses from cybercriminals, and it also protects governments and vital infrastructures from cyberterrorism. Most governments apparently recognize these facts since they have not joined the US in restricting encryption technology.     

In-house or in court? Legal challenges to university decisions

Every day, decisions are made in universities that affect students. When a decision adversely affects a particular student, what means of redress does that student have? The circumstances in which a student has a legal claim against their university are generally unclear. Courts have traditionally tended to draw a distinction between ‘purely academic’ decisions and disciplinary decisions. There has been reluctance on the part of courts to intervene in non-disciplinary decisions which involve academic judgment, for example, the grade to be given to a student's work. On the other hand, where the decisions are purely disciplinary, for example, in relation to a student's behaviour towards others or towards university property, the courts have made it clear that there is essentially no difference between this and disciplinary matters within any other public institution or organization. However, disciplinary decisions that are connected with allegations of academic misconduct, for example, cheating and/or plagiarism, have been more problematic for the courts. Historically, the debate was whether any such decision was justiciable in public law. Recently the question has also been whether an aggrieved student may succeed in a private law action against a university. The legal issues raised by university decisions affecting students have not yet been clearly resolved in all jurisdictions. Indeed, in some cases, judges have raised many more questions than they have answered. This article will review the framework for legal challenges to university decisions against a background of recent judicial attitudes in Australia, New Zealand, the UK and the US.     

互联网法院的程序法困境及出路

互联网法院借助互联网技术审理特定类型的涉互联网案件,以全流程在线办理为原则,改变了诉讼行为发生的时空条件.互联网法院在现阶段面临的程序法困境主要包括设立依据有违法定法官原则、管辖范围的界定不够妥当、在线庭审的规则创新冲击民事司法之基本原则、诉讼规则忽视对当事人处分权和平等权的保障等方面.从立法上明确互联网法院的试点法院...     

Legal Pluralism and the Adjudication of Internet Disputes

No single entity-academic, corporate, governmental or non-profit-administers the Internet. (American Civil Liberties Union v Reno \[E.D. Pa. 1996] 929 F. Supp. 824, 832) The problems of regulation on the Internet are simply stated. First, it allows novel activities: e-mail, electronic discussion groups, simple transfer or viewing of text, images, sound and video. These activities may fall foul of laws of obscenity or defamation in some or all of the jurisdictions in which it is available. Second, the Internet is a distributed system that straddles geographical and jurisdictional boundaries; the regulation of such activities is likely to fall within two or more national 'legal' jurisdictions. It may therefore be difficult to choose an appropriate jurisdiction. Third, the inevitable need to choose a jurisdiction will mean that the values to be imposed upon the dispute will be the values of that jurisdiction, values that may be different from the values of those involved in the dispute. Much has been written on the first two problems and significant developments have been made in the formulation of principles to be applied to the problem of choosing a jurisdiction. In this paper, I will begin to focus on the third problem, the problem of inappropriate values being imposed upon Internet behaviour. The paper will develop the theme that the need for a single jurisdiction and, in consequence, the need for a single set of values to be imposed upon Internet activities is a fiction born out of centralist systems of western jurisprudence. The paper will review how courts have turned against pluralistic approaches in the past when dealing with clashes in cultural and religious values, particularly the clash in the English courts in the case of Salman Rushdie's 'The Satanic Verses'. Western courts have been dismissive of cultural and religious claims either treating them as 'repugnant' or contrary to public policy, or else questioning the validity of the motives of the applicants. It is evident from recent cases in the US, that judges will use similar techniques to impose their own value values upon Internet activity. The concept of legal pluralism is not recognised within westernised systems of law. The paper will then consider whether a more pluralistic strategy would provide a more satisfactory approach to dealing with such disputes on the Internet: an approach that would enable the resolution of the conflict between different cultural and religious values.     

Unique Role of the Court

The court is a unique and vital institution within the American system of government. The court's fundamental responsibility is to assure that all members of society are protected under law from harm by others. Juvenile and family courts have, within this system, the equally important responsibility to protect the best interests of children, families, and communities. These responsibilities convey to the courts a role vital to our anti-substance abuse efforts on behalf of society and especially on behalf of children and their families. Such efforts must recognize the existence of non-traditional, as well as traditional, family units within today's society.     

网络案件中美国法院的长臂管辖权

在分析研究了美国法院将传统长臂管辖权理论运用于网络案件的有关实践后 ,作者指出 :尽管网络案件有其特殊之处 ,对传统的管辖权提出了一定的挑战 ,但不应夸大其对传统管辖权的冲击 ,传统的管辖权规则仍可适用于网络案件 ;就网络案件管辖权模式而言 ,强调物理联系因素的欧洲模式难堪重任 ,而强调被告是否与法院地间形成了某种程度的联系 ,根据企业所使用的语言、货币、法律选择、拒绝交易声明以及实施特定交易等 ,考察被告的活动是否针对法院地 ,是否与法院地形成了某种“有意利用”关系的美国模式更符合管辖权模式的未来发展趋势。     

Re-Defining Defamation: Psychological Sense of Community in the Age of the Internet

In the era of traditional media, courts typically relied upon geographic constraints, including where a plaintiff lived or worked, to determine the appropriate community in defamation cases. The rise of the Internet has dramatically changed society – easily and immediately linking users across geography while allowing the rapid spread of information through a variety of channels that pose a challenge to the traditional media model centered around editorial judgment and professional ethics. Thanks in part to its global reach, the Internet has allowed users to engage in both business and social relationships around the world. Because of this, a person's need for a good reputation can no longer be confined solely to location. As a result, this article argues that courts must begin to evaluate other factors when determining relevant community in online defamation cases, positing that courts should utilize factors associated with psychological sense of community theory.     

Trade Secrecy Injunctions,Disclosure Risks,and eBay's Influence

Historically, intellectual property (IP) owners could rely on injunctive remedies to prevent continued infringement. The Supreme Court's eBay v. MercExchange decision changed this, however. After eBay, patent courts no longer apply presumptions that push the deliberative scales in favor of injunctions (or “property rule” protection). Instead, patent injunctions require a careful four‐factor analysis, where plaintiffs must demonstrate irreparable injury (i.e., that money damages cannot compensate). Without question, eBay has made it harder for patent plaintiffs to secure injunctions, and has led many district courts to consider innovation policy concerns (e.g., the strategic behavior of patent “troll” plaintiffs) in the injunction calculus. By and large, courts’ more deliberative approach to patent injunctions post‐eBay has been viewed as beneficial for the patent system. Over the past decade, eBay’s influence has migrated to other areas of IP. This article offers the first account of eBay’s impact on federal trade secrecy injunctions. Important differences between trade secret law and other areas of IP—for example, the hard‐to‐quantify risk that disclosure poses to trade secret owners—has lessened eBay’s influence on trade secrecy injunctions. This article argues that disclosure risks justify a bifurcated approach to trade secrecy injunctions. That is, in cases involving the dissemination of trade secrets, courts should presume irreparable injury in the injunction calculus. However, in cases involving the unauthorized use of a trade secret—that is, where a defendant builds upon a plaintiff's trade secret but does not disseminate it—courts should not presume irreparable harm and, instead, should apply the eBay framework. As part of this assessment, courts should consider policy concerns related to cumulative innovation and employee mobility.     

December dilemmas: The celebration of Christmas in American Public Schools

As contentious as Americans are about prayer 1 and other forms of religious expression in public education, 2 it is amazing to consider the dearth of litigation over a related, complex issue, the celebration of religious holidays, most notably Christmas, in public schools. In fact, while the Supreme Court has addressed Christmas holiday displays on two occasions, and lower courts have examined the appropriateness of Easter as a school or public holiday, there has been no direct litigation on the place, if any, of Christmas in public schools. The question is all the more complex due to the important place that religion has played, and continues to occupy, in American life as educators seek ways to teach students to appreciate diversity in all of its manifestations, including religion. This article briefly reviews the litigation in this area, little of which admittedly involves education, and reflects on the 'December Dilemma' that confronts educators in American public schools.     

The Rule of Law in Fragile States: Dictatorship,Collapse, and the Politics of Religion in Post-Colonial Somalia

The fate of the rule of law in fragile states rests in religious politics. Three defining periods of Somali politics illustrate this argument. First is the authoritarian regime of Mohamed Siad Barre in Somalia (1969–1991). This dictatorship used religion to rule by law. The regime executed religious leaders for disagreeing with the government's interpretation of Islam. Second is the rise of Islamic courts in Mogadishu, Somalia's capital city (1991–2007). The Islamic courts apprehended criminals, expelled warlords, and provided spaces for Somalis to resolve disputes peacefully. Third is the breakaway of Somaliland (1991–present). Somaliland has advanced Islamic legal principles to build peace and constitutional law. Taken together, these three periods demonstrate how religious politics transform law and society.     

人民法庭地位与功能的重构

近十余年来,在法院现代化、正规化、规范化建设过程中,人民法庭的角色在一定程度上被边缘化。然而,我国基层社会纠纷的有效解决正逐步凸显出对人民法庭功能的需求,人民法庭自身的条件也发生了重要变化。在新的历史条件下,应当重新审视人民法庭的地位与功能,把适当增加人民法庭的设置,合理调整人民法庭的区域布局,充实人民法庭的审判力量,强化人民法庭的功能,作为我国基层法院当下发展与改革的重要内容和路径。这既可以从S省P县法院相关实践中部分得到证明,更可以从司法辖域的相对限缩、人民法院发展的主导思路以及基层法院审判工作主要特性等三个维度得到理论阐释。     

Night Vision Electro-Optics technology transfer: A decade of activity

The US Army’s Night Vision and Electro-Optics Laboratory, Fort Belvoir, Virginia, has for the past decade encouraged the transfer of its unique technology into the non-military community. Our scientists and engineers have developed a wide spectrum of devices that provide the military forces with such benefits as being able to “see” at night without being detected, the ability to accurately determine ranges and to designate targets. Although our objective has been to develop devices to enhance the combat effectiveness of the US Army, many of these night vision and electro-optical devices have a great potential for serving useful functions in the non-military community. Therefore, the technology behind these devices which are not classified may, as the need dictates, be transitioned into the private sector through technology transfer. It is the intent of this paper to provide an introduction to the nature of this technology and to illustrate by high-lighting selected spinoffs, the many uses of night vision and electro-optics which have been adapted by the non-military community.     

四级两审制的发生和演化

司法体制改革的一个重要举措是设立最高人民法院巡回法庭,这一改革举措可能意味着我国法院层级或审级变化的新动向.从建国以来的历史经验看,法院层级和审级变化并非彼此孤立,且都从属于国家政治形态设计.1954年中共中央取消大区分院,促动了法院审级由三审制改为两审制.两审制带来的法院功能和案负变化,导致中级人民法院层级的设立.为了保障四级两审制平滑运作,民事调解制度扩大,基层法院派出法庭普遍设立.这一法院层级和审级制度的设立,契合了扩大省级地方权力的政治目标.1983年以来“地改市”运动、民事调解制度的萎缩以及撤销部分派出法庭,使得四级两审制的基础发生松动,法院层级和审级方面的新变化由此产生.     

Digital technology: its impact on copyright law and practice in North America

Legal context. The effect of rapid technological change on copyrightlaw in Canada and the United States, and in particular on thebalance between creators' rights and users' rights. Key points. Copyright law involves a balance between the rightsof both creators and users. When initially faced with fast-evolvingdigital technology, the courts struggled with the balancingact and tipped it in favour of users' rights. The Supreme Courtof Canada elevated various exceptions to infringement to userrights, and cautioned against a low standard of originalitywhich would favour creators' rights. The US Court of Appealsremarked that introduction of new technology is disruptive tocopyright owners whose works are sold through traditional mechanisms;and others suggested that a bias in favour of owners rightsmay have well impeded the development of digital culture. Despitethe initial struggles, legislative changes, market forces andrecent deference by the courts to the balancing of various interests,have slowly restored the copyright balance, even when facedwith rapid technological change. Practical significance. Copyright litigants must give carefulconsideration to the balance between creators' and users' rights,and be prepared to justify traditional copyright protectionin fields of new technology.     

RESPONSE TO TROXEL v. GRANVILLE

In today's world, children grow up in families that take many different forms, and society can no longer consider the traditional nuclear family the normal or optimal family structure. As a result, in cases of divorce, courts are increasingly relying on the results of psychological research when awarding custody and visitation privileges. In contrast to recent trends, however, the U.S. Supreme Court's majority decision in Troxel v. Granville favors biological parents' rights over the psychological interests of children. This article discusses the potential contributions of attachment theory to the contest between biology and psychology in America's divorce courts.     

BUILDING AN ADMINISTRATIVE COURT AS A GOAL OF ADMINISTRATIVE JUDICIAL SYSTEM REFORM

With rapid social and economic development, nowadays there are an increasing number of social conflicts, especially administrative disputes between the government and individual citizens. However, many of the conflicts cannot be effectively solved through administrative litigation, which continuously leads to a high rate of appeals and complaints, making it ever more difficult to resolve administrative disputes. Often susceptible to interference from local party committees and governments, courts face difficulties to accept complaints, conduct trials, make decisions and enforce judgments, which make courts dysfunctional in supervising administrative organs. All the issues above are caused by problems in the court administration system. The control of the court’s personnel, expenses and property is decentralized, with courts divided by administrative regions, income provided through local finance and personnel controlled by local party committees. However, administrative organs are defendants in administrative litigations and courts are to review the legality of administrative acts. It is neither realistic nor logical to have courts in the de facto control of local governments to supervise the governments. Therefore, it is of necessity to build a vertical administrative court system subordinated to the Supreme People’s Court. This vertical system shall free courts from the control of local governments, overcome localization of the judiciary, and would be able to effectively solve administrative conflicts and ensure that government decisions/orders are smoothly carried out.     

The FDA and genetic testing: improper tools for a difficult problem

The US Food and Drug Administration (FDA) has recently issued draft guidance on how it intends to regulate laboratory-developed tests, including genetic tests. This article argues that genetic tests differ from traditional targets of FDA regulation in both product as well as industry landscape, and that the FDA''s traditional tools are ill-suited for regulating this space. While existing regulatory gaps do create risks in genetic testing, the regulatory burden of the FDA''s proposal introduces new risks for both test providers and patients that may offset the benefits. Incremental expansion of current oversight outside of the FDA can mitigate many of the risks necessitating increased oversight while avoiding the creation of new ones that could undermine this industry.