International Journal of Law and Information Technology Advance Access published online on April 16, 2008
International Journal of Law and Information Technology, doi:10.1093/ijlit/ean002
Addressing the "Cyberspace Fallacy": Targeting the Jurisdiction of an Electronic Consumer Contract
1 Dr Lorna E Gillies, Lecturer in Law, Faculty of Law, University of Leicester, LE1 7RH. Email lorna.e.gillies{at}le.ac.uk. Research leave granted by the University of Leicester is gratefully acknowledged. This article is an adapted and revised version of sections from L.E. Gillies, "An Analysis of Jurisdiction Rules for Electronic Consumer Contracts: United Kingdom, United States and Global Perspectives," PhD Thesis, University of Strathclyde, 2005, (hereafter Gillies, 2005) and from L.E. Gillies, "Addressing The "Cyberspace Fallacy" : The Efficacy of Targeting in Establishing The Jurisdiction of an Online Contract," Conference paper delivered to the SLS Cyberlaw subsection, SLS Conference, Keele University, 6 September 2006
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Abstract |
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There are widely held views of how the jurisdiction of an online contract should be established. Cyber-liberterians favour a separate cyberspace jurisdiction, maintaining that online activities should be regulated entirely separately without recourse to national courts and laws. Traditionalists maintain that the existing paradigms of location and activity are capable of determining the jurisdiction of an online contract. What is agreed is that the dematerialised nature of online activity renders the location of the parties and the place where their commercial activities take place difficult to determine. Whilst Reed's "Cyberspace Fallacy" acknowledges the challenges in determining the jurisdiction of an online contract, that author also reminds us that such challenges are not new. A variety of connecting factors have been used to establish jurisdiction of a contract conducted by electronic means. As Zekos suggested recently in an article in this Journal, 2 consideration must be given to a new means of determining the jurisdiction of an online contract. It is the purpose of this article firstly, to highlight the difficulties with the operation of existing connecting factors in establishing the jurisdiction of an electronic contract and secondly to propose how "intentional targeting" – if properly defined - can provide an efficient and adaptive connecting factor to determine the jurisdiction of an electronic consumer contract.