Research Handbooks in International Law series
Edited by Nicholas Tsagourias and Russell Buchan
Chapter 2: Jurisdiction in cyberspace
On a formal level, the rules of jurisdiction under customary international law deal with the question of which State (vis-à-vis other States) has the right to regulate which transnational event, that is, to make, apply and enforce their laws. This issue has become hotly disputed in the online environment which affects a wide of spectrum of laws – from defamation, privacy, contract and intellectual property law to criminal and regulatory law on e.g. obscenity, pharmaceutical licencing and gambling laws – and appears to defy the traditional location-centric allocation of regulatory control. The reason for this high level of contentiousness is that, on a substantive level, jurisdictional rules go to the heart of statehood and sovereignty by providing each State with the legal authority to protect the ‘rule of law’ within their territorial boundaries. Against this background, it is perhaps to be expected that the internet’s transnationality has been ‘resolved’ rather aggressively in favour of preserving each State’s territorial dominion at the expense of the coherence of the overall allocation framework. Yet, what are the costs of squeezing transnational online communications into the national law straitjacket, for the future of the internet and for freedom of transnational expression; and what, if any, are the alternatives?
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