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Who has the right to govern online activity? A criminal and civil point of view

Who has the right to govern online activity? A criminal and civil point of view
Who has the right to govern online activity? A criminal and civil point of view
This paper compares how the Australian defamation case of Dow Jones & Co. Inc. v. Gutnick [2002] HCA 56 and the English obscenity case of R. v. Perrin [2002] EWCA 747 dealt with the legal concept of publication in the transnational online context or, more specifically, with the issue as to how to treat a foreign online publication. Despite the different nature of the causes of action, with the former being a civil case and the latter being a criminal case, the article shows that, not only were the underlying jurisdictional issues the same, but that there were also significant similarities in the approaches taken to them. Both courts firmly rejected arguments in favour of an exclusive country‐of‐origin approach and stuck with the traditional country‐of‐destination orthodoxy. Nevertheless, it is argued that, given the different nature of and rationales behind civil and criminal law, as well as the less cooperative transnational criminal law regime, the same jurisdictional approach taken to both civil and criminal transnational activity may in fact yield substantially very different outcomes. Thus, the approach appropriate in the criminal law context may lead to undesirable over‐regulation in the civil law context.
1360-0869
387-410
Kohl, Uta
813ff335-441f-4027-801b-4e6fc48409c3
Kohl, Uta
813ff335-441f-4027-801b-4e6fc48409c3

Kohl, Uta (2004) Who has the right to govern online activity? A criminal and civil point of view. Internation Review of Law, Computers and Technology, 18 (3), 387-410. (doi:10.1080/1360086042000276807).

Record type: Article

Abstract

This paper compares how the Australian defamation case of Dow Jones & Co. Inc. v. Gutnick [2002] HCA 56 and the English obscenity case of R. v. Perrin [2002] EWCA 747 dealt with the legal concept of publication in the transnational online context or, more specifically, with the issue as to how to treat a foreign online publication. Despite the different nature of the causes of action, with the former being a civil case and the latter being a criminal case, the article shows that, not only were the underlying jurisdictional issues the same, but that there were also significant similarities in the approaches taken to them. Both courts firmly rejected arguments in favour of an exclusive country‐of‐origin approach and stuck with the traditional country‐of‐destination orthodoxy. Nevertheless, it is argued that, given the different nature of and rationales behind civil and criminal law, as well as the less cooperative transnational criminal law regime, the same jurisdictional approach taken to both civil and criminal transnational activity may in fact yield substantially very different outcomes. Thus, the approach appropriate in the criminal law context may lead to undesirable over‐regulation in the civil law context.

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Published date: 1 November 2004

Identifiers

Local EPrints ID: 427432
URI: http://eprints.soton.ac.uk/id/eprint/427432
ISSN: 1360-0869
PURE UUID: 296c80cd-cd9e-42a2-8fd6-c4555a8c5ed6
ORCID for Uta Kohl: ORCID iD orcid.org/0000-0002-8616-9469

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Date deposited: 16 Jan 2019 17:30
Last modified: 09 May 2020 00:44

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