In times of digitalisation, ‘servitisation’ of products, delocalisation of data and fierce competition in global markets, a good command of private international law issues becomes essential to adequately advise businesses in the digital economy.
Take the following case study as an example: a Spanish provider of online audiovisual services has contracted the hosting of its contents and services with Amazon, the US company. The servers where Amazon hosts those contents are physically located in India, Canada and the US. The Spanish company provides its services to consumers in Spain, Portugal and Latin America.
Any lawyer advising the Spanish provider should be ready to answer at least the following questions: if there is a dispute with Amazon, where can a complaint be filed and in accordance with what law? Are choice of law and choice of jurisdiction clauses valid in the contract with Amazon? Are these clauses valid in the relationships of the provider with their consumers? Which legislation(s) should the company take into account when designing the advertising/promotion campaigns of its services? Must the Spanish company comply with the European legislation on personal data protection even concerning consumers residing in Latin America? In case of the illegal use or theft of the company’s software, contents or data, where can a complaint be filed and under which law(s)? Which law(s) decides the company’s liability of any illegal activity carried out by its users?
Pedro de Miguel Asensio’s Conflict of Laws and the Internet provides clear and detailed answers to these questions and many more. This is an indispensable book for practitioners and scholars in this area of European Union Law.
Conflict of Laws and the Internet is divided into six chapters:
- Foundations includes a brief but necessary explanation of general concepts of private international law such as jurisdiction, applicable law, and recognition and enforcement. The book elegantly explains their increasing relevance in the regulation of internet activities.
- Information Society Services, Internal Market and Illegal Content provides a broad explanation of the legal regime of ISP in Europe, including the intermediary liability regime, the recent Geo-blocking Regulation and the country of origin principle in the e-Commerce Directive. In relation to the latter, a reference is made to recent judgments of the Court of Justice of the European Union (CJEU) in cases AirBnB and Uber.
- Data Protection and Personality Rights including Defamation. This chapter opens with an explanation of the territorial scope of application of the GDPR, and the regulation of international transfers of personal data; it continues with the analysis of the jurisdiction and applicable law in civil liability claims against controllers and processors; and closes with an analysis of international claims for infringement of personality rights. Professor De Miguel offers an interesting reading to the eDate advertising and Bolagsupplysningen judgments of the CJEU and of the different proposals that exist to adopt a uniform conflict of laws rule in this field.
- Copyright and Related Rights. The special features of these rights justify a separate analysis of them from the rest of the aspects of intellectual property. When analysing jurisdiction issues, the distinction between grounds with limited and potentially unlimited jurisdiction is appropriate. The same goes for the dissection of all the different particular problems that the applicable law to this category or rights entail. In particular, Professor De Miguel’s opinion on the alternatives to the mosaic principle and to the future role for the country of origin principle are very useful for future research in the field.
- Unfair Competition, Trademarks and other Industrial Property Rights. This chapter opens with a section on domain name dispute resolution systems. Afterwards, a distinction is made between national industrial property rights and EU unitary rights. It should be recalled that while the drafting of the rules on jurisdiction and applicable law on these two categories of rights is similar, the interpretation of the Court of Justice differs. The chapter ends with a section on unfair competition and acts restricting free competition.
- Contracts. This chapter covers private international law (PIL) issues of traditional B2B and B2C transactions and of new categories of P2P relationships taking place in online platforms. It also includes an interesting section on smart contract and cryptocurrencies. I fully agree with the author that the former is not a category of agreements that raise specific issues for the purpose of PIL. In addition to the sections on jurisdiction and applicable law to all of these transactions, the chapter closes with an analysis on the use of alternative dispute resolution systems.
Besides the particular aspects of the book that have been already highlighted, I would like to make two additional considerations of a general character.
First, this book reflects that in this field of law, private international law has become mostly European. The ‘Europeanisation’ of PIL has implications from a dogmatic and practical point of view. Dogmatic because it means that scholars need to revisit the idea of PIL as a branch of national legal systems that is built in accordance with national objectives and values. As Professor De Miguel’s book shows, the answers to the questions of the case study of the Spanish provider are mostly established in European instruments, and they reflect European values and objectives. This is not only relevant for scholars. The ‘Europeanisation’ of PIL enables legal practitioners to advise on the legal compliance of digital business in a truly European market (the Digital Single Market). Reference to national PIL rules or even national laws are residual. These are also good news for the true creation of a Digital Single Market as well. The fact that certain regulatory aspects are still governed by national conflict of laws rules (see in this regard, chapter 3 in relation to infringement of personality rights and civil liability claims against controllers and processors) is actually an anomaly that should be progressively eliminated to increase legal certainty.
Second, Professor De Miguel has chosen an ‘Anglo-saxon-oriented’ title for his work by referring to Conflict of Laws. However, Continental lawyers will soon discover that the book does not only refer to conflict of laws (applicable law) but covers all sectors of PIL as conceived of in most European countries. Therefore, the reader will also find a detailed explanation of the rules on international jurisdiction and recognition and enforcement of foreign judgments. Furthermore, many of the solutions within the applicable law sector are not provided by traditional conflict of laws rules, but by substantive norms. This is a key feature of EU PIL: the legal certainty that companies require to make cross-border digital business is ensured with harmonised or unified norms such as the GDPR, the consumer protection directives, the directives in the field of intellectual property and unfair competition, the regulations establishing European industrial property rights or the Platform-to-Business Regulation. In relation with these bodies of legislation, the basic question for internet relationships consists of determining their territorial scope of application. As shown for example in chapter 3 with the GDPR, in chapter 2 in relation with the Geo-Blocking Regulation, or in chapter 6 on consumer contracts the ‘directing activities’ or targeting criterion plays a relevant role for that purpose.
To sum up, Conflict of Law and the Internet will not only allow the reader to obtain a clear understanding of private international law issues of digital business, but also to understand how this field of law is mutating to fulfil its traditional aims: substantive regulations are increasing in relevance vis-a-vis traditional conflict of laws rules as the mechanism to ensure legal certainty in the Digital Single Market.
Aurelio Lopez-Tarruella is an Associate Professor of Private International Law at the University of Alicante.