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Article Loi sans frontier – where does the internet stop?

31.07.17

The Canadian Supreme Court’s decision in Google Inc vs. Equustek Solutions, which upheld the global injunction forcing Google to remove certain websites, has reopened the ongoing tension between the pace and universality of the internet vs. the territorial and arguably slow moving legal systems of the planet’s courts.

The World Wide Web

The web has always been frontier territory, and the internet’s great benefit - and one of its greatest problems - is that it has neither borders nor boundaries. Both are problems for legal systems; the ability to publish, copy, broadcast, defame in an uncontrolled manner - and in ways that practically didn’t exist before the internet - have caused massive legal headaches, and the lack of geographical borders is also tricky.

In particular, the problem is that jurisdictions are generally national or at best regional. Barring a few specialist areas, there is no such thing as an international court - and to create such a jurisdiction typically requires an international agreement.  Now the likelihood of introducing new international agreements seems low unfortunately. We’ve seen alternative proposals over the last decade, where courts within the EU began issuing pan-EU injunctions. However, the legal structure was not in place and other national courts basically ignored them; which they were perfectly within their rights to do.

International IP matters

So, the problem isn’t going to go away in a hurry, and whilst it isn’t just an IP problem, IP does seem to figure reasonably highly. The Google case was about the de-indexing of infringing sales globally, which at least arguably is a data issue. More generally, online sales of infringing goods are a huge problem, facilitated by the internet and complicated by the fact that infringing acts such as “offer for sale” are performed at indeterminate locations geographically, which most laws aren’t properly set up to deal with. In the world of “hard” IP, the growth of patents relating to telecoms and internet related solutions has introduced problems because - unlike most inventions - the technology can be distributed across multiple countries, such as where a client is in one continent and a server in another. Again, this has given rise to complex cases.

IP is not, of course, the only problem. Again, there are many boundaries that the internet crosses other than geographical borders. But IP is likely to be at the forefront for the simple reason that the internet is pure information, and IP - copyright, trademarks, and even patents are also essentially all about information and controlling it. It is therefore unsurprising that some of the most important law that has developed is in this arena.

A solution?

Solutions are not currently leaping out. The long-term solution would be some form of international mutual recognition agreement, but unfortunately we seem to be in a time where long standing international agreements are being torn down. In the short term, it seems more relevant that the lawyers and the courts get their heads around how to deal with this issue. To the extent that rights or agreements are created, they need to be written with a very strong eye towards the impact of the internet upon enforceability. We see this already in copyright, licencing and distribution agreements, and the major telecoms players certainly understand how to use the patent system to their best advantage - not only writing patents directed to infringements in a single territory, but choosing those territories very carefully.

It may take decades to control the disruptive effect of the internet, and decades more to look back and understand just how much is changing at the moment that we don’t even recognise. There is no doubt that the legal system is not rapid enough to keep up fully, though in any event, a little reflection time is probably required. For now, however, the internet - with its lack of borders and lack of boundaries - continues to push the law, the lawyers and the law makers to find innovative solutions to a continuing challenge.

This was authored by Gwilym Roberts. View his professional profile here.