Category: international

Will the OpenAI case put pressure on US courts to resolve internet jurisdiction?

Artificial intelligence behemoth OpenAI is currently defending a lawsuit in India, brought by that country’s domestic news agency ANI. The primary allegation is that OpenAI improperly used ANI’s copyrighted material to train its generative AI programs.

Open AI has raised a number of defenses, including that the courts of India have no personal jurisdiction over it. As every first-year law student learns, courts must have personal jurisdiction over a defendant before they can issue any binding order. For centuries, personal jurisdiction required that the defendant be physically present where the court was located. However, as 20th-century advances in transportation and communciation made it easier for people to cross state and national boundaries, courts adjusted the doctrine. It is now widely recognized that someone who enters a state or foreign country (even virtually) and causes mischief can be subject to that state or country’s jurisdiction, even if the defendant is not physically located there.

But there are still limits. The United States Supreme Court has insisted that a defendant must “purposefully avail” itself of the state where the lawsuit is filed, meaning that it must engage with the state in some intentional and deliberate way. An accidental or unforeseen connection to the forum will not do.

And thus human interaction through the internet–so wide-ranging and ubiquitous in modern life–poses a problem. An e-commerce giant like Amazon or eBay might be said to purposefully avail itself of a forum by offering goods for sale in that forum through the internet. The interaction is knowing, willful, and intentional, and the case for jurisdiction is easy. But what about a third-party seller who puts a product on eBay without thinking about a particular market or location? Is that purposeful availment? Or what if someone posts allegedly infringing or defamatory material on social media or a blog? Is that person subject to personal jurisdiction anywhere the site can be accessed?

The U.S. Supreme Court has never answered that question, at least not directly. It seems to want to answer the question, if the Justices’ questions during oral argument for other personal jurisdiction cases are any indication. But the Court seems unable to articulate a coherent and workable set of jurisdictional rules for the internet, and instead keeps deferring the issue. (Meanwhile, lower courts in the United States are doing the best they can to articulate meaningful principles of internet jurisdiction, with a common approach being to allow the exercise of jurisdiction when the defendant “directed electronic activity into a forum” with the “manifest intent of engaging with persons in that forum.” That captures the Amazons of the world who know where they are selling and shipping products, but probably not the ordinary Instagrammer who just posts something online.)

But the Supreme Court may not be able to wait much longer. The outcome of the OpenAI case in India may force its hand, or at least put greater pressure on it to reach a resolution applicable to American courts.

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Bolivia’s move to judicial elections is not going well

Today Bolivians go to the polls to elect their judges, making the country the first (and so far only) nation in the world that chooses its highest judges at the ballot box. Reports suggest that the lead-up to the election is not going well, with widespread voter apathy and resignation, and lots of behind-the-scenes politicization of the process:

In Bolivia, even senior judicial officials struggle to sound positive when asked to defend the election.

“It should be a calm, easy and simple process, but it has become very litigious, very controversial,” Francisco Vargas, the vice president of Bolivia’s electoral tribunal, told The Associated Press from the court in central La Paz.

This year in Bolivia, experts find it even harder than usual to praise the system. With the posts up for grabs every six years, Sunday’s vote was supposed to take place in late 2023.

But as the deadline approached last year, the Constitutional Court — packed with allies of President Luis Arce — suddenly intervened to push the vote back a year, escalating his power struggle with his former mentor and current rival, Morales, over who will lead their long-dominant leftist party into Bolivia’s 2025 presidential election.

Both understand that whoever wins over the Constitutional Court ensures their own political survival.

Mexico elects new chief justice amid intrigue

The eleven justices of Mexico’s supreme court have elected Norma Lucia Piña as their new chief justice. Chief Justice Piña will be the first woman to lead the court in its history.

The 6-5 vote carried a fair bit of intrigue. Mexico’s President, Andrés Manuel López Obrador, had backed Justice Yasmín Esquivel for the position, and apparently had pressured the other judges to support her candidacy. But Justice Esquivel was also battling under allegations that she had plaigiarized her senior thesis while an undergraduate in the 1980s. Lopez Obrador subsequently demounced the result of the election, arguing that “the judicial branch has been kidnapped … has been eclipsed by money, by economic power.”

Piña stressed the importance of judicial independence in her first remarks as chief justice. It sounds like there will be some turbulent times ahead.

The administrative responsibilities of chief judges

This is an interesting primer on the administrative and public-facing roles that are expected of chief justices in Australia. As in the United States and other common law countries, the chief justice not only has ordinary adjudicative responsibilities, but also a wide range of administrative duties and an obligation to speak publicly in support of (and sometimes defense of) the court system.

None of this is particularly new or earth-shattering, but it is an excellent reminder of the organizational nature of a court system, and the organizational responsibilities that fall upon court leaders above and beyond their ordinary roles.

Tunisian president clamps down on independent judiciary

This past weekend, Tunisian President Kais Saied issued a decree dissolving the country’s High Judicial Council and replacing it with a handpicked “Temporary Supreme Judicial Council.” The move gives Saied the power to remove any judge for “failing to do his professional duties” — i.e., any reason Saied comes up with — and further prohibits the judiciary from going on strike in protest of the changes.

Middle East Eye explains:

Saied’s relations with the judiciary have been on edge since he consolidated power last summer.

In July 2021, Saied, who won the presidential election in 2019 as an independent candidate, suspended parliament, dismissed the prime minister and assumed vast executive powers. He has been ruling the country by decree for months, bypassing the powers granted to him in the constitution. His power grab measures were labelled as a coup by critics and opposition groups, a charge that Saied rejects.  

The CSM – a body meant to remain free from political interference – was one of the last institutions in the country to remain outside his control. The council was established in 2016, after independent members were elected to it; their role is to oversee the appointment of judges, promotions, and disciplinary proceedings.

But over the past few months they have come under increasing scrutiny from the president. 

On multiple occasions, Saied has accused the council of failing to resolve high-profile cases, including the political assassination of left-wing leaders in 2013.

Saied accused the council of appeasing political forces within the country, namely Islamist-leaning factions like Ennahda, the biggest party in the suspended parliament.

In December, the Tunisian Association of Judges raised the alarm, saying the president’s ongoing campaign against the judiciary was turning the public against them. At the same time, cases accusing judges of wrongdoing started to emerge. At least a dozen judges were placed under house arrest as a result. 

Among them is Bechir Akremi, former general prosecutor of the Tunis Court of First Instance, who was placed under house arrest days after Saied announced his power grab in July. 

Akremi was accused of deliberately concealing important files regarding the 2013 assassinations of Tunisian leftist leaders Chokri Belaid and Mohamed Brahmi. He was also accused of being heavily influenced by the Ennahda party. In January, Akremi’s case was dropped on appeal, over technicalities, much to the displeasure of Saied.

“Unfortunately, some judges in the courts have manipulated this case,” Saied said last week. “This is not the first trial where they have tried to hide the truth for years.”

Judge Akremi’s case has become emblematic of the clash of power between Saied and the judiciary. Opposition groups warned Saied was trying to use the high-profile cases of political assassination as a guise to expand his powers and crush opponents. 

The move in Tunisia is reminiscent of the recent attacks on judicial independence by authoritarian regimes in Poland and Romania. And the moves are drawing thousands to protest in favor of judicial independence. Many fear the decree will open the door to sacking judges for purely political reasons.

This does not look good. It will be worth watching carefully.

Judges from around the world work to evacuate their female colleagues from Afghanistan

The safety of female judges in Afghanistan was precarious even before the botched American pullout left the Afghani people at the mercy of the Taliban and ISIS. Now the situation is far worse. Immeasurably, sickeningly worse.

One small point of light has been the efforts of private individuals and entities to protect Afghanis and, to the degree possible, get them and their families out of the country and on to safer ground. This Washington Post story highlights one such effort, by judges across the globe, to secure safe passage for their female Afghani colleagues. Their limited success in no way eradicates the catastrophe that is unfolding, but it does give one a certain degree of faith in the human spirit.

Indian state rolls out mobile “e-court” vans to service rural areas

Uttarakhand, a state in northern India, is planning to introduce wifi-equipped “e-court” vans in five remote hill communities. The vans will have videoconferencing capability and will be administered by the district judges of the state.

The initial story provides few specifics about how the mobile courts will operate, what types of cases will be eligible, and exactly how the vans will be able to accommodate the presentation of evidence and the opportunity for transparent proceedings. What seems clear is that the effort is designed to chip away at a shocking large — and growing — backlog of cases in the state. 

India has an unfortunate history of extensive case backlogs, and this creative effort to improve that circumstance should be applauded. I hope it is successful.

India develops rules for live-streaming court proceedings

The E-Committee of the Supreme Court of India has developed a set of draft rules for live-streaming and recording court proceedings. The draft rules are open for public comment through June 30.

The draft rules exclude a number of case types, including many related to family law, gender-based violence, and cases which “in the opinion of the Bench may provoke enmity amongst communities likely to result in a breach of law and order.” Parties will also have a chance to object to livestreaming in advance.

El Salvador’s authoritarian regime ousts country’s top judges

Disturbing news over the weekend from El Salvador, where authoritarian president Nayib Bukele and the ruling Nuevas Ideas party removed five judges from the country’s supreme court. The judges were immediately replaced with new judges loyal to the regime.

The move drew significant international criticism, including a warning from U.S. Secretary of State Antony Blinken about the necessity of an independent judiciary in a democracy. On Twitter, Bukule responded, “We are cleaning house … and this doesn’t concern you.”

When autocrats seek to consolidate their power, their first move is often to undermine or replace the judiciary. Just as the citizens of Venezuela or Poland.

EU sues Poland over 2019 judicial law

Poland’s ruling Law and Justice Party (PiS) has been working assiduously to forge a politically subservient judiciary since 2017, when it first passed legislation to purge certain judges and install others favorable to its policies. These policies have been regularly condemned by Poland’s neighbors, and have already led to lawsuits. Now the EU is taking the next step: suing the Polish state in the European Court of Justice, arguing that the most recent round of changes to the Polish legal system undermine judicial independence.

Deutsche Welle explains:

At issue is the Polish law affecting the judiciary that came into force in February last year.

It prevents judges from referring questions of law to the ECJ. It also created a body that rules on judges’ independence without regard to EU law.

The bill also oversaw the creation of a “disciplinary chamber” to oversee Polish supreme court judges. This chamber — criticized for its close ties to the government — has the power to lift their immunity, allowing for judges to face criminal proceedings or cuts to their salaries.

One judge, Igor Tuleya, faced suspension and a 25% salary cut in November. He was among the justices to resist the changes to the legal system.

The Commission wants the ECJ to suspend the 2019 law as well as the disciplinary chamber and the decisions it has made concerning judges’ immunity, “to prevent the aggravation of serious and irreparable harm inflicted to judicial independence and the EU legal order.”

Poland has denied any breach of judicial independence, and challenges the EU’s power to regulate its internal judicial affairs.

Another chapter in a distressing saga.