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Braintech, Inc. v. Kostiuk
March 18, 1999
Which jurisdiction has jurisdiction over internet communications?
According to the British Columbia Court of Appeal, that may depend
on which one has a real and substantial connection to the defendant:
"Enter the Internet, a global "'super-network' of over 15,000
computer networks used by over 30 million individuals, corporations,
organizations, and educational institutions worldwide." ... The
Internet makes it possible to conduct business throughout the
world entirely from a desktop. With this global revolution
looming on the horizon, the development of the law concerning
the permissible scope of personal jurisdiction based on Internet
use is in its infant stages. The cases are scant.
Nevertheless, our review of the available cases and materials
reveals that the likelihood that personal jurisdiction can be
constitutionally exercised is directly proportionate to the nature
and quality of commercial activity that an entity conducts over
the Internet. This sliding scale is consistent with well
developed personal jurisdiction principles. At one end of
the spectrum are situations where a defendant clearly does business
over the Internet. If the defendant enters into contracts
with residents of a foreign jurisdiction that involve the knowing
and repeated transmission of computer files over the Internet,
personal jurisdiction is proper. ... At the opposite end are situations
where a defendant has simply posted information on an Internet
Web site which is accessible to users in foreign jurisdictions.
A passive Web site that does little more than make information
available to those who are interested in it is not grounds for
the exercise personal jurisdiction. ... The middle ground is occupied
by interactive Web sites where a user can exchange information
with the host computer. In these cases, the exercise of
jurisdiction is determined by examining the level of interactivity
and commercial nature of the exchange of information that occurs
on the Web site...
It would create a crippling effect on freedom of expression if,
in every jurisdiction the world over in which access to Internet
could be achieved, a person who posts fair comment on a bulletin
board could be haled before the courts of each of those countries
where access to this bulletin could be obtained. --- Goldie J.A.
for the court
See highlights of Braintech, Inc.
v. Kostiuk, or the entire
judgment
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