A Jurisdição na Internet segundo o Regulamento 44/2001 (e as alternativas extrajudiciais e tecnológicas)

• Autor(a) principal: Pereira, Alexandre Libório Dias
• Data de Publicação: 2001
• Tipo de documento: Artigo
• Idioma: por
• Título da fonte: Repositório Científico de Acesso Aberto de Portugal (Repositórios Cientìficos)
• Texto Completo: http://hdl.handle.net/10316/28775
• topic: Direito; Internet; Tribunal competente; Lei aplicável; Ciberespaço

Jurisdiction in Internet according to EU Regulation 44/2001 (and the extrajudicial and technological alternatives). What will be the role of Law in the configuration of normative patterns of the Internet? Are jurists competent to deal with e-businesses or are they condemned to extinction in this new environment? Does the traditional legal normative arsenal fit the new requirements of the digital economy and the information society? Do States have sovereignty over cyberspace or is it a “territory” free and independent of State Law as the revolutionary “technologies” have argued? This paper, which evolved from a communication presented to the International Conference on Cyber Law organized by the Luso-American Foundation in June 2001, addresses these issues, beginning with the idea that the “revolutionary prophecy” is far from true, and that in this apparent vacuum of State Law a new entity clearly stands affirming its sovereignty over many zones of cyberspace: the European Union. In particular, this essay analyses how the new EU Regulation on jurisdiction on civil and commercial matters (44/2001) provides criteria to the determination of the competent national courts in situations of contractual and extra-contractual liability, and provides exclusive competencies for certain situations. The problem of jurisdiction is informed by a requirement of equilibrium among the parties in order to guarantee access to justice. In this sense, the principle of fairness of the court is provided by the existence of a reasonable connection between the forum and the case. Provisions of the Regulation concerning extra-contractual liability (forum delicti commissi) need special concretization by the courts in order to prevent not only “legal e-heavens” but also the dilution of the territoriality principle that inform many rights affected by e-communications, in special intellectual property rights. Having in consideration the “doing business” US case-law, as well as the Fiona Shevill precedent of the EU Court of Justice and the German Bogsch Theory, it is argued that the court of the country of accessibility of the message shall deny competence if there is no substantial interactivity with that country and the law of the country of origin assures adequate protection at least according to legal standards set up by international instruments. Then, concerning the provisions on contractual liability provided by the Regulation, several questions are also raised. To begin with, it is difficult to determine the place of accomplishment in situations of direct e-commerce, in particular due to the open discussion concerning the distinction between provision of services and delivery of digital goods. Moreover, the principle of freedom of contract is limited in order to protect the weakest party (i.e. the consumer). However, literally it seems that the EU Regulation will turn out such protection of the weakest party in a mere “legal risk”, having in mind the possibilities afforded to the parties. Furthermore, the principle of good administration of justice sets up specific rules of competence concerning rights that are granted upon registration or deposit, such as patent and trademark rights. An open issue is the status of domain names rights; it is argued however that they shall be treated as rights that are granted upon public registration. Another dimension of jurisdiction in Internet addressed in this work is the mechanisms of alternative dispute resolution (ADR) and the so-called “technical jurisdiction”. The e-commerce directive promotes ADR, including by electronic means (e-arbitrage). However, it is not clear how the rights of parties and other issues shall be addressed. On the other hand, ADR seems also to mean “Administrative” Dispute Resolution, since a clear tendency is being affirmed in order to set up dispute resolution by administrative bodies instead of by the courts. Finally, “technical jurisdiction” is applied to protect copyright and related rights, as well as conditional access services, in terms that technology is called to prevent what technology makes possible (i.e. electronic reproductions of copyrighted works), and law is called to reinforce such technical protection. However, this “technical jurisdiction” place a number of public policy concerns, namely the promotion of interoperable computer systems and free access to public information.