Re: The Macquarie Bank Case thrown out

Yes and no ....

On Wed, 16 Jun 1999, Michael do Rozario <mdr[_at_]abkj.com.au> wrote:
>
> On Fri, Jun 11, 1999, Paul Geller <pgeller[_at_]law.usc.edu> wrote:
> >
> > On Wed, 9 Jun 1999, Michael Lean <m.lean[_at_]qut.edu.au> wrote:
> > >
> > > The Sydney Morning Herald reported that the judge said the most
> > > significant factor was the nature of the Internet itself. Here
> > > is some of the judgement:
> > >
> > > "It is reasonably plain, I think that once published on the
> > > Internet, material is tranmitted anywhere in the world that
> > > has an Internet connection. It may be received by anybody,
> > > anywhere, having the appropriate facilities.
> > >
> > [snip]
> > >
> > > "It may well be that [in another country] the defendant has an
> > > unfettered right to publish the material. To make an order
> > > interfering with such a right would exceed the proper limits of
> > > the use of the injunctive power of this court."
> >
> > Should the court have at least taken a sampling of laws in
> > the major countries in which the alleged defamation would
> > have been likely to reach significant audiences? If these
> > laws would have allowed for relief under the facts of the
> > case, and assuming personal jurisdiction over the defendant,
> > should the judge have then considered dealing with the case?
> > If all judges acted with the arguably excessive restraint
> > of this one, where would claimants obtain relief against
> > global cyber-torts, including copyright infringement?
>
> With respect, I think this misses the point. Injunctions are
> traditionally an equitable remedy, and therefore, (paraphrasing a
> couple of hundred years of case law into a few words) must be fair
> in all the circumstances. Not only would the Plaintiff have to
> show that there was a cause of action, and that damages were
> inadequate, but that there was some substantial reason why the
> court should exercise its discretion to grant the injunction. If,
> for whatever reason it appears to the judge that any injunction
> issued, would either not fair, or more likely be unenforceable
> the Plaintiff is going to have a hard time convincing a judge to
> grant one.
>
> There is no doubt that the courts are being cautious in
> extending the reach of laws into the net, but really its not their
> job to regulate the Internet, and they should be loathe to do it -
> especially where to do so would be contrary to precedent.

     I disagree and agree. Courts do have to protect rights, in geographical or cyber-space. (I leave aside such larger questions: What transnational legal frameworks should eventually be set up for cyberspace? What relations should prevail between these frameworks and national judicial systems?) In the here and now, courts do issue injunctions across borders -- hence the question: on what conditions? "Should" and "can" issues have to be distinguished here.

     With regard to "should", my point was simply that the court make some threshold inquiry into possibly applicable laws across the space in question before assessing one out of many equitable factors: possible success on the merits. Of course, it should consider other factors, for example, balancing impacts of enjoining or not on the parties, prospects of final remedies, public policy, etc.

     With regard to "can", one could question, however, whether enforceability enters into equitable considerations bearing on the injunction itself or into jurisdictional considerations. But if the plaintiff has a strong case for the injunction, and if the defendant resides in the forum jurisdiction, thus leaving it vulnerable to sanctions for disobeying the injunction, the court has the power to impose the injunction relative to the defendant's acts even abroad, beyond the borders of the forum jurisdiction.

     Cordially, Paul Geller
http://www-rcf.usc.edu/~pgeller/
<pgeller[_at_]law.usc.edu> Received on Wed Jun 16 1999 - 16:11:56 GMT