Zwischenstaatliche Kompetenzabgrenzung im Cyberspace

Which state has or should have the competence to regulate and to adjudicate internet activities? Or, should the cyberspace be treated as a distinct and independent place for regulatory purposes? The argument of the article is conservative. It is based upon a rejection of models creating a separate cyberspace law or cyberspace governance and defends the idea that it is not the technical processes per se which are legally decisive but their effects. As all online activities have noticeable effects on states' territories, current internet problems have to be evaluated relying on traditional concepts and legal structures. Or to put it in other words: traditional jurisdictional rules based on geographic location are transferable, or at least adjustable, to the transnational internet. At international level, the first decision in respect of the territoriality principle came in 1927 with the Lotus case, in which the Permanent Court of International Justice decided that a state may try to punish a person whose foreign acts cause injury within its territory. The next expansion of the territoriality principle came in the form of regulatory claims based on non-physical effects of the foreign activity felt in the state's territory. Particularly the US courts enforced its antitrust law against foreign companies in relation to activities which took place in foreign states on the basis that the effects of those activities were felt in the US. This so-called effects doctrine was soon accepted by the international community as a valid model of delimiting states' competences and jurisdictions. But this acceptance went hand in hand with support for restrictions on its application. Today, there is almost unanimity between academics and practitioners that the assumption of extra-territorial jurisdiction has to be reasonable, which means that the effect upon the territory must be of a substantial, direct and foreseeable nature, and that, at the same time, the interest of other states in regulating the activity in question must be equally taken into account. Against this background, the article analyses recent internet decisions of different jurisdictions. It asserts that in all judicial authorities, what is conspicuous by its absence is any reference to the laws of other states and the potential for conflicting regulation. Nevertheless, all decisions make considerable efforts to find a »genuine link« between the online activities in question and the jurisdiction of the forum. In the US, it was already held in Zippo Manufacturing Co. v. Zippo Dot Com Inc. (1997) that the likelihood that personal jurisdiction will be exercised depends on the level of interactivity and the commercial nature of the online exchange of information. The greater the level of interactivity with forum residents and the more the defendant profited from those interactions, the more likely it would be that personal jurisdiction over the foreign defendant will be asserted. This approach was also defended in People v. World Interactive Gaming Corp. (1999), where the US Supreme Court stated that the defendant actively targeted New York as the location where it conducted many of its allegedly illegal gambling activities. Similar arguments were stressed in Twentieth Century Fox v. iCrave TV (2000) and in Metro-Goldwyn-Meyer Studios, Inc. v. Grokster (2003). France and Germany have been concerned particularly by the easy online accessibility of Nazi memorabilia, contrary to the criminal laws of both states. The judicial authorities in both countries did not require an end to the provision of Nazi item or propaganda everywhere, but just on their territory. In the famous Yahoo! case (2000), the French court stressed that yahoo.com had aimed at a French audience since it responded to a connection to its auction site from a computer located in France by dispatching advertising banners in French. The German Federal High Court, in its Töben judgment (2000), also made an attem