Dongsheng Zang, Revolt against the U.S. Hegemony: Judicial Divergence in Cyberspace, 39 Wis. Int'l L.J. 1 (2022), https://digitalcommons.law.uw.edu/faculty-articles/834
personal jurisdiction, cyberspace, EU, Japan, China, U.S., Commonwealth countries, tort liability, intellectual property, digital platforms
This Article contributes to our understanding of the current state of cyber law. The global perspective demonstrates an almost uniform response to the U.S. law in cyberspace from all of America's major trading partners. In the past, comparative studies tended to focus on a single jurisdiction-typically, the European Union-and compared it with the United States. This approach, informative as it was, significantly understated the gravity of the differences between that jurisdiction and the United States. Fundamentally, it was based on an American-centric outlook with primary interests in building convergence models. In cyberspace, however, this is simply not helpful. In recent years, scholars of the European Union have argued for the "Brussels effect," which contended that EU's more strict regulatory approach in cyberspace not only persists but is now followed by many countries outside Europe. The global perspective adopted in this Article follows the direction of the regulatory theories and pushes the logic to its end. By examining cases from five jurisdictions, this Article demonstrates not only that there is divergence in cyberspace regulation but that the United States is a lone outlier in its regulatory approach to the internet, while the other four jurisdictions-the European Union, the Commonwealth countries, Japan, and China-have all adopted a more rigorous regulatory approach. It is a revolt.
Part I lays the foundation for the comparison by describing the legal frameworks in the United States. It tracks the development of legal doctrines in two critical areas. First, this Article examines personal jurisdiction over nonresident defendants in defamation and intellectual property cases. Second, it analyzes the jurisprudence of Section 230 of Communications Decency Act (CDA), which provides immunity to digital platforms. Part II then provides a comparison of personal jurisdiction issues in laws and judicial cases in four jurisdictions: the Commonwealth countries, the European Union, Japan, and China. In contrast with the more limited personal jurisdiction doctrines in the United States, the other four jurisdictions made it easier for victims to establish personal jurisdiction and thus have access to courts. Part III tracks legal doctrines on liability of digital platforms in the four jurisdictions. In contrast with the general immunity in the United States under Section 230 of the CDA, all four jurisdictions adopted tort liability for digital platforms. Part IV tracks legal doctrines in global injunctions by courts in the four jurisdictions to show a general move toward more willingness to extend remedy beyond their borders. The global revolt in cyberspace described in this Article is a significant development in the twenty-first century, with critical policy ramifications. Some final thoughts will be discussed in the conclusion.