At the first Global Internet and Jurisdiction Conference 2016 in Paris, former Swedish Prime Minister Carl Bildt explained that ‘how the jurisdiction challenges on the Internet are addressed will define our digital future’. Shortly thereafter, Dan Svantesson argued in Solving the Internet Jurisdiction Puzzle (Oxford University Press 2017) that the only way to achieve the necessary degree of international coordination in this area would be ‘to generate a common understanding of jurisdiction’ (ibid p 227). To that end, Julia Hörnle now makes a significant contribution with this impressive book.
The book contains ten studies of specific problems of internet jurisdiction (Chapters 3–12), which are bookended by two additional chapters engaging with the overarching challenge of how to establish prescriptive, adjudicative, and enforcement jurisdiction with regard to a medium that often lacks any significant connection to the territory of a particular country (Chapters 2 and 13).
The fields covered in the chapters dedicated to specific problems range from the enforcement of public law through internet gatekeepers (Chapter 3) and jurisdiction for cybercrime (Chapters 4–6) to data protection (Chapter 7) and jurisdiction for private law disputes (Chapters 8–12). The breadth of coverage found in these chapters makes their respective depth all the more impressive. Indeed, there are few scholars, if any, who are able to cover such a wide range of topics in such detail (noting that the chapters on criminal jurisdiction and civil and commercial jurisdiction in the EU have been co-authored by Elif Mendos Kuskonmaz and Ioannis Revolidis, respectively).
It is surprising, though, that many of these chapters are of somewhat varied scopes. While some offer a relatively broad perspective on a whole area of law (such as Chapter 4 on criminal jurisdiction, focusing on the interplay with public international law), others consider answers found in different legal systems to more specific problems (such as Chapter 3 on the problem of gatekeeper liability or Chapter 6 on criminal enforcement cooperation). Some focus on two legal systems (such as Chapter 5 on jurisdiction in cybercrime cases, comparing German and English law, or Chapter 10 on consumer protection, comparing the EU to the US approach), whilst others look at just one (such as Chapters 8 and 9, discussing a slightly different set of questions of private international law with regard to EU instruments and US law, respectively). Some of the chapters on private international law (such as Chapters 8 and 11) also discuss conflict-of-laws rules, whilst others (such as Chapters 9 and 10) are limited to questions of international jurisdiction.
One of the reasons for this can presumably be found in the author's aim of identifying recurrent themes across different fields and legal systems. Indeed, the book reveals an urgent need for further international cooperation in virtually every area it discusses. It highlights the importance of private international law as a means of international coordination in the internet age, especially when contrasted to the lack of a similarly recognised set of rules in other areas of law. The book repeatedly raises the question of the extent to which the mere accessibility of online content provides a viable basis for jurisdiction. And it emphasises how closely linked many questions of internet jurisdiction are to the protection of fundamental rights.
Still, the discussion of some of those themes would arguably have profited from a more consistent structure across the various chapters. The role of private intermediaries as the de facto gatekeepers of the internet, for instance, is discussed in Chapters 3 and 6 with regard to the ability of States and public authorities to harness their power for the enforcement of public law. However, they are arguably just as important with regard to the effective enforcement of private law—as demonstrated by the debate about the new EU Copyright Directive (No 2019/790), which carves out a significant exception from the privileges previously enjoyed by online platforms under Article 14(1) of the e-Commerce Directive (No 2000/31). Similarly, the problem of national courts issuing injunctions with worldwide effects is discussed in Chapter 3 with regard to the obligations of hosting providers, but barely features in the more general chapters on international jurisdiction.
Even discussions of questions that feature more consistently across chapters—such as the mosaic approach to online torts developed by the CJEU in Case C-68/93 Fiona Shevill and the potential of targeting as a more nuanced alternative (see pp 284–6, 308, 328–30, 370–8, 403–5, 412–20)—remain somewhat self-contained. For example, the author proposes (at pp 404–5) combining a targeting test with both a centre-of-interests approach and an ‘objective foreseeability’ criterion in order to identify the law applicable to infringements of personality rights. The centre-of-interests criterion is clearly taken from the CJEU's decision in Joined Cases C-509/09 and C-161/10 eDate and Martinez, while the ‘objective foreseeability’ criterion appears to be inspired by the Opinions of AGs Cruz Villalón and Bobek on eDate and Martinez and on Case C-800/19 Mittelbayerischer Verlag, respectively (an approach which the CJEU regrettably rejected on both occasions). Yet the proposal is neither linked to the parallel problem of adjudicative jurisdiction (from which all three criteria originate) nor is it mentioned in any of the other chapters.
Interestingly, the proposal is also not picked up in the book's final chapter, which draws together the previous chapters and identifies some overarching trends and challenges (including the targeting criterion at pp 443–6) in the broader context of establishing jurisdiction over online content. Still, this chapter arguably provides the most intriguing part of the book. Its cautious style is testimony to the evolving nature of the quest to generate the ‘common understanding’ of internet jurisdiction mentioned earlier. Julia Hörnle has brought a veritable treasure trove of extensive case study and astute observation to this endeavour, reminding the reader of both the many unresolved questions and the importance of continuing to work towards their resolution.
