Recently, a court in the UK (Football Dataco Ltd et al. v.
Sportradar GmbH) found that the location of a
server determined the appropriate jurisdiction to regulate internet
content. This is not entirely consistent with the Canadian
Sportradar tried to argue that the court did not have
jurisdiction to hear the claim that Football Dataco's copyright
and database rights had been infringed by Sportradar's alleged
reproduction of Football Dataco's live scores and statistics.
The content from Sportradar was stored on webservers in Germany and
Austria, but was made available to users in the UK by
Sportradar's online betting sites. To determine what law should
apply, the court focused on where the act of "making
available" occurred. The court held that such an act occurs
where the transmission takes place, and more specifically, where
the server is located. Since Sportradar's servers were located
outside of the UK, the court found that it could not assert
jurisdiction over certain of the claims.
When it comes to online jurisdiction, according to the Supreme Court, the
Canadian approach is to use the "real and substantial
connection" test, which requires that a significant portion of
the offence has taken place in Canada. However, server location is
not entirely irrelevant. The Supreme Court identified server
location, along with the location of the content provider, the
intermediaries and the end users as potential connecting factors,
although it did state that the weight to be given to any of these
factors will vary with the circumstances and nature of the
To date, Canadian courts have been reluctant to give much, if
any, weight to server location, recognizing the nature of servers
as being mobile and effectively irrelevant to a jurisdiction's
regulation of internet content.
For instance, in Citron v.
Zundel, the Canadian Human Rights Tribunal
asserted jurisdiction because the content provider and a
significant portion of the target audience for his anti-Semitic
website were located in Canada, despite the fact that the server
for his website was in California. Similarly, in World Stock
Exchange, the Alberta Securities Commission
(ASC) asserted jurisdiction based on facts that the World Stock
Exchange was established, run and promoted in Alberta, and it was
deemed insignificant that the World Stock Exchange itself was
hosted in Antigua. Further, the ASC acknowledged the risk of
emphasizing the location of the technology, storage or host
facility as leading to a "flag-of-convenience approach"
allowing a party to simply move its server to various states to
avoid restrictive regulations or liability. More recently, in eBay Canada Ltd. v. Canada
(Minister of National Revenue) the court
acknowledged that online information cannot be seen to
"reside" only in one place since it is readily available
to the users located in a variety of places. According to the
court, this makes it "irrelevant where the
electronically-stored information is located."
In contrast then to the UK court's recent decision, the
Canadian jurisprudence requires a connection that is real and
substantial, rather than what some might argue is artificial and
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