A Geneva Look At Jurisdiction, Dispute Resolution And The Internet

A conference on jurisdiction and dispute resolution in the age of the internet examined current issues of concern to internet-based public policy, such as the notion of how jurisdiction and internet governance is a question of power, and an update on an International Law Association guidelines project. In addition, a debate arose as to the state of the patent system.

The University of Geneva, in collaboration with the Geneva Internet Platform and the Geneva Center for International Dispute Settlement (CIDS), held a conference on Jurisdiction and Dispute Resolution in the Internet Era on 17-18 June. The conference was part of the Internet Law Summer School.

The conference documents are available on the conference website: www.internet-disputes.ch

Internet Governance

Prof. Yves Flückiger, vice-rector of the University of Geneva, in his opening remarks, said the conference is an important event for the university. He mentioned that the event was organised in cooperation with the Geneva Internet Platform and that this platform is important in the positioning of the Geneva region in the field of internet governance.

The “main challenges of our society need to be faced in an cross-disciplinary way,” he said, and the university is “well placed” to address these different questions related to internet governance, which need to be addressed with the help of researchers and professors from different faculties of the university and strategy partners.

Jurisdiction: A Question of Power and Issues of Concern

Prof. Jacques de Werra, Faculty of Law, University of Geneva, in his opening remarks described why jurisdiction is an important topic for discussion.

Jurisdiction and how it relates to internet governance is a “tricky issue,” he said. Jurisdiction is a key element of internet governance, he added, noting that when it comes to deciding who has the power to decide internet-related disputes, and how it should be structured and organised, “we are talking about power.”

He said it is important to analyse under what conditions ordinary courts can claim jurisdiction and under what circumstances courts can have the power to decide on internet-related disputes.

In addition, de Werra mentioned minimum contacts, which is “particularly reflected in US case law” and outlined that in order for US courts to claim jurisdiction over a global internet-related issue there must be a relationship of minimum contacts.

“What shall be minimum contacts?” he asked. Is it possible to come up with “common guidelines” and rules which would potentially make it possible to assess this issue in a cross-disciplinary manner? Examples are privacy, defamation, and intellectual property.

In certain circumstances, he stated, “we may consider that courts should not have any jurisdictional power,” adding that one reason is because of immunity.

He asked, what are positive conditions for admitting jurisdictional circumstances and in what circumstances should we refuse?

Additionally, disputes must be explored beyond the court’s adjudication and this leads to considerations of alternative dispute resolution, he said.

Also mentioned by de Werra, was that one area of disputes is those over standard essential patents in information and communication technologies.

He discussed the ability of internet users to use mobile devices. The point of discussion, he said, is to realise there is a tension between the strong protection of patents and the availability of technologies to be used for the benefit of internet users.

“This has crystallized” in disputes about the conditions of use of standard essential patents, de Werra remarked, and what has developed is to say that patent holders must grant licences according to “fair, reasonable and non-discriminatory terms.” However, these terms may not be necessarily clear, which “gives rise to very intensive disputes.”

Jurisdiction: A Major Issue?

Prof. Edouard Treppoz, University of Lyon III, asked in his presentation why jurisdiction in internet-related IP disputes has evolved into a major issue.

This has become an issue, he said, due to multiple infringers and “countless possible localization for a cyber-infringement.”

Treppoz said in his paper on Jurisdiction in Internet-related disputes that “when it comes to the tricky question of the cyber infringement, it seems that the place of the establishment of the owner of the website is an accepted solution as to the point of departure of the cyber infringement.”

ILA Guidelines Update

Eun-Joo Min, senior legal counsellor, policy and cooperation, Building Respect for IP Division, World Intellectual Property Organization, discussed the work of WIPO in addressing the interface between intellectual property and private international law.

Min told Intellectual Property Watch that the WIPO project on “National Approaches to Private International Law Issues in Online IP Infringement Disputes with Cross-Border Elements,” which concerns the collection of empirical data in the form of court judgments relevant in this area, is due to be published this summer.

Intellectual Property Watch previously reported (IPW, WIPO, 23 January 2015) on the work carried out in the preparation of ILA Committee guidelines on jurisdiction, applicable law, recognition and enforcement of foreign judgments and the arbitrability of IP disputes, which can be used for national and international lawmakers, as well as in international dispute resolution.

The Right to Be Forgotten: A Right to Be De-Linked?

Prof. Alain Strowel, Université Catholique de Louvain/Université Saint-Louis, Brussels, Belgium, discussed the implementation of the right to be forgotten by Google and other search engines.

He said that there is no right to be forgotten as such, rather it is a “right to be de-linked.” The ground breaking decision emerged in CJEU, 13 May 2014, Google Spain (C-131/12) where it was held that a search engine has to delink the personal information which is inadequate, irrelevant or excessive in relation to the purposes of the processing.

This translates in the obligation to remove the link from the list of organic results following a search on a personal name. Google and other search engines have implemented the decision by delisting hundreds of thousands of links.

This raises the question whether the search engine should be the sole judge of what should be delinked. The speaker advocated the establishment of an alternative, but simple, system for adjudicating those massive online micro-cases.

The Patent System: Prone to Abuse?

A member of the Pirate Party, a political party in Switzerland, which is the domain owner of wikileaks.ch, raised several issues during the question and answer period.

The party member stated that in his view the patent system is “seriously broken.” There are too many “fake and bogus software patents” and in addition he asked, why do we have 250 patents in a phone? This is “not sensible.”

He brought up the issue of patent trolls, and the trend of where a person obtains a lot of patents, in order to prevent people from using a device, unless they give you “a lot of money”.

The Pirate Party member mentioned the vicious cycle of patents, in which he said patents are used to prevent competition, and to “lock things in.”

Nicolas Schifano, director, standards and interoperability policy, Europe, Middle East and Africa (EMEA), Microsoft, said that in relation to the abuse of patents or patents being prone to abuse, patents are a “tool” which can be extremely useful to “structure the exchange of ideas” or disclosure of ideas either through patents or other mechanisms in exchange for the protection of patents.

It is the case, he said, with any tool, that there will be some positive use and some negative use.