Legal Risk Management in Electronic Commerce
- Managing the risk of cross-border law enforcement

Author: Jan Trzaskowski
Webdesign: MERE.INFO

Ex Tuto Publishing, October 2005 (ISBN 87-991018-0-7)
www.legalriskmanagement.net

Preface
1. Introduction
2. The Internal Market
3. Public Law Enforcement
4. Private Law Enforcement
5. Risk Mitigation

6. Conclusions
6.1. Summary
6.2. Hypotheses
6.2.1. First Hypothesis
6.2.2. Second Hypothesis
6.2.3. Third Hypothesis
6.2.4. Fourth Hypothesis
6.2.5. Fifth Hypothesis
6.2.6. Sixth Hypothesis
6.3. Danish Summary (Dansk Resumé)

7. Literature and References

6. Conclusions

The purpose of this chapter is to sum up on the findings of this thesis and to discuss the hypotheses of this thesis in the light of the research carried out.

6.1. Summary

States are sovereign to prescribe, adjudicate and enforce, as long as this sovereignty is exercised with due respect to the sovereignty of other states. This means that traditional law enforcement requires some kind of involvement of and cooperation by the court of the state in which the Business is established. Traditional law enforcement may be carried out either if the Business is sued in its home court and foreign law is applied, or if the Business is sued in a foreign court and foreign law is applied. Substantial inconvenience and costs may also occur in situations where the Business is sued in a foreign court, even though the law of the Business is applied.

In situations where the Business is sued in its home court, foreign law may in particular be applied in connection to tort and certain consumer contracts. Foreign law may also be applied in other contracts if the parties have made a valid agreement on applicable law or if the case is closer connected to a foreign state. The applicable law in tort is determined in accordance with national law, which has not been examined in this thesis. Most states apply the principle lex loci delicti, and it is likely that foreign law may be applied to the extent it does not conflict with the public policy in the state of the court. Under public law enforcement, foreign law is not likely to be applied.

The Business may be sued in many courts, but in order to have judgments enforced against the Business, the rendering state relies on the forthcoming of the state of the Business, possibly based on a particular agreement or other kinds of legal relations. There are a number of agreements concerning recognition of foreign judgment both within public and private law enforcement.

All agreements within public law enforcement, but the 2005 Framework Decision of Financial Penalties and the cooperation between the Nordic states, are based on the principle of dual criminality. This means that the activity must be considered a crime under the law of both the foreign state and the state in which the Business is established. The Business is assumed to comply with the law of the state in which it is established, and the requirement of dual criminality is thus not satisfied. The 2005 Framework Decision on Financial Penalties departs from the principle of dual criminality for certain offences and concerning recognition within the European Union. Recognition may, however, be refused if the executing state (the state of the Business) finds the activity to be committed entirely or partially within its territory. This requirement is likely to be satisfied in the situations dealt with in this thesis. It is notably not an obligation to refuse recognition in such situations, and the situation thus depends on national law including the implementation of the framework decision.

Recognition and enforcement of foreign judgments within private law enforcement is secured through the Brussels/Lugano System, which provides a principle of free movement of judgments within civil and commercial matters between, and with some limitations, the EU Member States, Iceland, Norway and Switzerland. Foreign law is, as accounted for immediately above, likely to be applied in connection to tort and consumer contracts. In these situations, the Business may also be sued in a foreign court. Due to the generally observed homeward trend, a foreign court may be more likely to apply foreign law, and the state where the Business is established cannot refuse recognition on the ground that the foreign court has applied another state's law than the law which would have been applied if the Business was sued in its home court.

As an objection to cross-border law enforcement, the Business may invoke that the action, taken by a law enforcer within the Internal Market, is a restriction of the free movement of goods, services and/or information society services. The country of origin principle for information society services in the 2000 E-Commerce Directive adds another test of justification on top of the principles of freedom to provide goods and services within the Internal Market. The access to impose restrictions under the 2000 E-Commerce Directive is more limited than under the provisions on free movement of goods and services. These principles apply to both traditional and alternative law enforcement as well as private and public law enforcement.

It is not clear whether these principles apply directly to private, alternative law enforcement, but the Member States will at least have an obligation to take action against its nationals if they are hindering the functioning of the Internal Market. The mentioned principles do not directly concern the choice of law rule, but the principles provide that measures which are not justified under available exceptions, may not restrict the principles of the Internal Market. This includes measures where the Business, in fact, is met with requirements under foreign law, such as a lawsuit where foreign law is applied.

The Business may also rely on the principles of freedom of expression as widely recognised and in particular expressed in the 1950 European Convention on Human Rights. There exists a 'commercial freedom of expression', but this right is not as protect-worthy as for example political expressions. The case law on this matter shows that states retain a quite broad margin of appreciation in regulating and restriction commercial expressions. The freedom of expression is more likely to be successfully invoked by law enforcers who are criticising the Business as a means of alternative law enforcement as long as it is carried out in a general interest. The 1950 Convention on Human Rights is ratified by a number of states which are not part of the Internal Market. If the Business is met with restrictions from those states, it may be able to invoke the freedom of expression against such restrictions.

Traditional cross-border law enforcement is most likely to be carried out in connection to tort, certain consumer contract and fines. In order to carry out traditional cross-border law enforcement in these situations, the Business's activities must have some effect in the state from where enforcement is carried out. A website is by default accessible in all states connected to the Internet, but access is normally not sufficient to be met with cross-border law enforcement. It is a requirement for entertaining jurisdiction under international law that there is a genuine link between the activity and the state exercising jurisdiction.

From the examined case law, concerning where a website activity is directed, it seems that a number of connecting factors can be identified, i.e. 1) access to the website, 2) magnitude and nature of business activity, 3) the presentation and relevance of the website, 4) marketing measures and 5) the place of business and technical infrastructure. These factors do not provide a complete check-list, and it should be emphasised that courts are most likely to attach importance to the economical reality of the activity. It should for good measure be noted that most of the cases examined are entered under common law, and that most states within the Internal Market has a civil law system. It seem, however, sound to assume general application of this approach, because it reflects relevant factors of consideration to be taken into account when assessing where an activity is directed.

In order for the Business to avoid cross-border law enforcement, it may apply risk-mitigation measures. This thesis has focused on geographical delimitation and the choice of forum and applicable law. Geographical delimitation by technological means ('geo-targeting') enables the Business to reject users from certain jurisdictions. Geo-targeting is not perfect and it is not possible to determine the location of all users. The application of geo-targeting to carry out geographical delimitation does, however, indicate that the Business is not directing its activities to the states excluded. The Business can achieve more efficient delimitation if the geo-targeting is combined with asking the User to reveal his identity. Other measures of geographical delimitation, such as for example stating the targeted states may also count in the examination of where the website activity is directed. It is decisive whether the measure is effective and in particular whether it reflects a genuine interest in avoiding the particular jurisdictions. The Business may also adjust its website based on the connecting factors mentioned above.

Article 12 of the EC Treaty provides that any discrimination on grounds of nationality is prohibited. It is not clear to what extent, this provision prohibits the Business from applying geographical delimitation. It seems to be justifiable to carry out geographical delimitation if it is done as part of a general business strategy and in order to avoid certain legal risks. The country of origin principle of the 2000 E-Commerce Directive has limited the amount of legal risks, but notably not eliminated the risk of being met with legal requirements under foreign law.

Choice of forum and applicable law is an effective measure to mitigate the possibility of traditional cross-border law enforcement in connection to contracts. The Business may thus ensure that it can only be sued in its home court and that the law of the Business is to be applied. The Business may choose to make the usage of the website subject to certain terms, including terms on forum and applicable law. Choice of forum under the Brussels/Lugano System is to be determined by the rules laid down in the respective acts, whereas the 1980 Rome Convention does not intend to lay down all requirements for a choice of law clause. Therefore it requires insight in national law to determine when such clause is valid. Agreements on choice of forum and applicable law can be entered electronically, but it is clear that such clauses must, in reality, be agreed upon by the parties.

Agreements on choice of forum and applicable law do not influence the possibilities in cross-border law enforcement in situations outside of contractual relations. The access to benefit from clauses on choice of forum and applicable law is limited in connection to certain consumer contracts.

6.2. Hypotheses

Based on the research carried out in this thesis, it is possible to relate to the hypothesis set forth in the first chapter. The hypotheses are to be understood in the context of the methodology and delimitation set forth in that same chapter and throughout the thesis. It should be emphasised that the conclusions relate to the test set-up and may thus not be true for other situations. Answers to a number of questions require knowledge of national law, which has not been dealt with in detail. The Business must thus have to examine the law of the state in which it is established. This is in particular true regarding that state's willingness to apply foreign law and its attitude toward recognition of foreign judgments under national law.

The six hypotheses:

First Hypothesis:

'Activities on the Internet are subject to geographical borders, and it is possible to identify factors that are relevant in assessing where activities on a website are directed.'

Second Hypothesis:

'Private parties are better able to carry out traditional cross-border law enforcement than public authorities.'

Third Hypothesis:

'The freedom to provide goods and services in combination with the 2000 E-Commerce Directive restricts the possibilities of cross-border law enforcement (both public and private law enforcement as well as traditional and alternative law enforcement).'

Fourth Hypothesis:

'Law enforcers established outside the Internal Market have limited access to traditional cross-border law enforcement against the Business, whereas alternative cross-border law enforcement can be applied.'

Fifth Hypothesis:

'Businesses can mitigate the risks of cross-border law enforcement by applying geographical delimitation and by entering into agreements on forum and applicable law.'

Sixth Hypothesis:

'The laws of the Internal Market limit the Business's possibilities in applying geographical delimitation.'

Four of the six hypothesis have been verified through this thesis (Hypotheses One, Two, Three and Five). Hypothesis Four is neither falsified or verified since the answer to this hypothesis depends on an examination of national law, which has not been carried out. Hypothesis Six seems to be verified in general, but falsified in the particular context of this thesis, where it is assumed that geographical delimitation is carried out to avoid the risk of cross-border law enforcement.

6.2.1. First Hypothesis

'Activities on the Internet are subject to geographical borders, and it is possible to identify factors that are relevant in assessing where activities on a website are directed.'

It seems clear that the Internet should not be understood as a Cyberspace, where governments have no power as suggested by John Perry Barlow.¹ Activities on the Internet have consequences in the 'real world' and infringement of the real-world laws is possible. Enforcement of those laws may be cumbersome, if possible at all, but as expressed in Dow Jones & Company Inc v. Gutnick, the fact that publication might occur everywhere does not mean that it occurs nowhere.² The idea of the Internet as a zoned medium seems to be in good harmony with the concept of sovereignty of states. States are sovereign to prescribe, adjudicate and enforce, within their territory and in relation to their citizens. If an activity is causing actual or potential harm in a state, it must fall within the powers of a sovereign state to intervene. Even though cross-border law enforcement may be cumbersome, it does not change the theoretical right of a state to prescribe and adjudicate within its territory. Difficulties in connection with enforcement does not legalise the unlawful.

In the context of this thesis, the Internet is best perceived as a medium which can be used to disseminate, or make available, information to a large potential audience. Legal risks, in the context of cross-border law enforcement, arise in conjunction with actual or potential harm to a legal or natural persons or the society as such. Harm deriving from information may occur when and where the information is being perceived. In order for the Business to infringe the law of a state, and thus expose itself to cross-border law enforcement, the website activity is normally required to be directed towards the state in question.³ The Internet is by default not divided into geographical zones, and it appears from the case law examined that the 'place of activity' has to be determined on a case to case basis, with respect to the factual circumstances and the purpose of the regulation in question. Based on the case law examined, the following groups of connecting factors can be identified:⁴

1. access to the website,

2. magnitude and nature of business activity,

3. the presentation and relevance of the website,

4. marketing measures and

5. the place of business and technical infrastructure.

It is thus possible to identify a number of connecting factors, but it should be emphasised that the list is not exhaustive and that the economic reality of the activity is in fact the most important factor. The connecting factors can provide guidance to the Business that wants to carry out legal risk management.

When information is published on the Internet, the potential audience is quite large and involves persons from a number of jurisdictions. Legal risks arise, in principle, already on the basis of the potential audience, since potential harm may also trigger cross-border law enforcement. Cross-border law enforcement requires that a potential law enforcer will obtain knowledge of the activity. This normally requires an actual audience, and it may be assumed that the risk of law enforcement will rise in conjunction with an increased actual audience.

The country of origin principle in the 2000 E-Commerce Directive⁵ does not abolish borders in connection to Internet activities on the Internal Market. The directive provides a principle of free movement for information society services, which entails that foreign states may have limited access to carrying out cross-border law enforcement. A country of origin principle entails a potentially better law enforcement (national law enforcement, at the source), but requires sufficient mutual confidence between states, which so far has been found within the Internal Market.

6.2.2. Second Hypothesis

'Private parties are better able to carry out traditional cross-border law enforcement than public authorities.'

States have a quite wide access to claim extraterritorial jurisdiction under international law, provided that the breach of law has an effect in that state.⁶ There is, however, no generally accepted standards of recognition of judgments within international law. Traditional law enforcement is faced with challenges relating to the sovereignty of states. It requires that the state in which the Business is established is either willing to recognise foreign judgments or to apply foreign law under national procedure. Some states are willing to recognise foreign judgment as a matter of comity, but usually only within private law enforcement.⁷

In traditional, public cross-border law enforcement, the fundamental principle of dual criminality requires the activity to be punishable under the law of both the country of origin and destination.⁸ It is assumed that the Business complies with the legislation in the country of origin, which means that the principle of dual criminality is not satisfied. The Nordic States have departed from the principle of dual criminality, and the principle has also been departed from in some legal instruments adopted under the Treaty Establishing the European Union, including in particular the 2005 Framework Decision on Financial Penalties.⁹ The framework decision provides a principle of free movement of judgments concerning certain financial penalties. It should be noted that a state may decline execution if the decision relates to acts which are perceived as committed in whole or in part in the territory of that state. It is most likely that the state in which the Business is established will consider an act to be carried out at least partially in the territory of that state. Under such circumstances, recognition depends on the national law of the state in which the Business is established.

Under private law enforcement, the law enforcer may rely on the free movement of judgments under the Brussels/Lugano System,¹⁰ when suing in a foreign court. Moreover, the plaintiff may rely on the provisions of the 1955 Hague Convention and the 1980 Rome Convention,¹¹ when suing the Business in a court of a state which have acceded to those conventions. This means that the Business in particular runs the risk of being sued in a foreign court, and with the application of foreign law, in certain consumer contracts and in tort. This is also true for other contracts, when the Business has to perform its obligation in a foreign state and the contract in general has the closest connection to that state.

Private law enforcement may also be carried out by suing the Business in its home court. This is of particular interest for plaintiffs, who cannot benefit from the free movement of judgments under the Brussels/Lugano System or any other form of recognition, such as comity. Suing in the home court of the Business may also be preferable for a plaintiff seeking damages for tort in more than one state.¹² In the situations mentioned above, the home court of the Business may apply foreign law. Due to the homeward trend, the Business's home court may be more reluctant to apply a law foreign to the Business than a foreign court.

Injunctions may be issued on the application of both private and public law enforcers. Under the 1998 Injunctions Directive,¹³ certain appointed law enforcers of both private and public nature, may seek an injunction aimed at the protection of the collective interests of consumers included in a number of directives.¹⁴ The directive does not appoint the applicable law, but the country of origin principle in the 2000 E-Commerce Directive is likely to ensure that the Business, within the scope of the 1998 Injunctions Directive, has to comply only with the directives as implemented in the country of origin. In civil and commercial matters, the plaintiff, which may also be a private organisation,¹⁵ may utilise the tort forum under the Brussels/Lugano System to sue in foreign courts.

It seems reasonable to conclude that private parties are better able to enforce national legislation across border than public authorities. This is mainly due to the dual criminality principle and the system for free movement of judgments under the Brussels/Lugano System and the likelihood of applying foreign law under civil procedure. It should be borne in mind that this research has not dealt with national law, including recognition on the basis of comity. The thesis has also not dealt with more practical issues relating to traditional cross-border law enforcement.

6.2.3. Third Hypothesis

'The freedom to provide goods and services in combination with the 2000 E-Commerce Directive restricts the possibilities of cross-border law enforcement (both public and private law enforcement as well as traditional and alternative law enforcement).'

The provisions on free movement of goods and services in the Internal Market concern all restrictions which are capable of hindering, directly or indirectly, actually or potentially, intra-community trade.¹⁶ Restrictions may be both legal requirements and other means of restriction such as unfavourable commenting or the blocking of access to the Business's website. Restrictions may be justified if they are necessary ('proportionality') for securing mandatory requirements, which include public policy and the protection of consumers.¹⁷ If an area is harmonised by Community law, it is as a starting point not possible to justify restrictions. The application of a law foreign to the Business is likely to be a restriction either under the provisions on the free movement of goods and services or under the country of origin principle. It is not the application of foreign law itself which is a restriction, but rather the consequences of the concrete application of foreign law.

The European Court of Justice has attached importance to the effectiveness of the medium in question when it assess restrictions.¹⁸ The Internet is of particular importance to achieving the goals of the Internal Market. This is also the political rationale behind the country of origin principle in the 2000 E-Commerce Directive. This principle adds a layer on top of the free movement of goods and services, for those activities that are carried out online. The access to impose restrictions under the 2000 E-Commerce Directive is more limited than under the provisions on free movement of goods and services.¹⁹

Certain selling arrangements fall outside the scope of the free movement of goods, provided that those provisions apply to all relevant traders operating within the national territory, and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States. If a ban on certain advertisement prevents foreign operators from gaining access to a market, the requirements under certain selling arrangements are not met. The country of origin principle of the 2000 E-Commerce Directive applies, however, to restrictions on information society services, which are considered as falling under certain selling arrangements.²⁰

A state cannot circumvent the provisions by derogating its powers to a private entity.²¹ Powerful collective actors, such as organisations, are also limited under these provisions. It is unclear to what extent private natural or legal persons are limited in their activities. To the extent private parties, carrying out cross-border law enforcement, fall under these provisions, they may rely on the possible justifications under mandatory requirements. The national courts are part of the state, and are obliged, also in private disputes, to observe Community legislation. Member States are further required to control its nationals and thus ensure that private entities are not tampering the functioning of the Internal Market.

6.2.4. Fourth Hypothesis

'Law enforcers established outside the Internal Market have limited access to traditional cross-border law enforcement against the Business, whereas alternative cross-border law enforcement can be applied.'

It is assumed that alternative law enforcement can be carried out without cooperation by the state in which the Business is established. This thesis does not include further analysis of the effectiveness or functioning of alternative law enforcement, including the economical consequences relating to the reputation of the Business. Public law enforcement within the European Union may benefit from the 2005 Framework Decision on Financial Penalties, and private law enforcers within the Brussels/Lugano System may benefit from that system. If a law enforcer outside of the Internal Market wants to carry out traditional law enforcement, it requires either that the state in which the Business is established recognises foreign judgments under national law or is willing to apply foreign law.

The 1980 Rome Convention is to be applied even if the plaintiff is not established in a contracting state. In particular in certain consumer contracts, this means that the law of a foreign state may be applied even though that state is not part of the Internal Market. The homeward trend may make it more likely that foreign law is not applied and differences in law and culture may make it more likely that foreign law is not applied, possibly with reference to public policy concerns. The same counts for applying foreign law in tort, where the state of the Business does not have a legal obligation to apply foreign law. The choice of law in tort is not harmonised, but a draft regulation on the matter is proposed.²²

A foreign law enforcer may not benefit from the Brussels/Lugano System, but this hypothesis cannot, without knowledge of national law in the state where the Business is established, be clearly verified or falsified.

6.2.5. Fifth Hypothesis

'Businesses can mitigate the risks of cross-border law enforcement by applying geographical delimitation and by entering into agreements on forum and applicable law.'

As dealt with under the first hypothesis, the risk of traditional cross-border law enforcement normally requires that the activity was directed towards the state of the law enforcer.²³ A fundamental requirement is that users in that state have access to the website. If the Business effectively excludes users from a particular state, it is hard to find reasons why that state's law should apply. It is clear that technical solutions to carry out geo-targeting are not 100% effective.²⁴ The effectiveness of a geographical delimitation solution is likely to form part of the assessment of where the website activity is directed, but it is the economic reality of the activity which is most important. The geographical delimitation is thus not likely to exclude cross-border law enforcement, if the reality of the Business's activity is to carry out business in the particular market. It is crucial whether the geographical delimitation reflects a genuine interest in avoiding business activities in the particular market.

Choice of forum and applicable law may be useful to mitigate the risk of cross-border law enforcement.²⁵ The Business may choose to enter a contract with the User which, provided the formal requirements are satisfied, may determine jurisdiction and applicable law. Agreements on choice of forum and applicable law may be entered electronically, but it requires insight in national law to determine whether a clause on applicable law is valid. Agreements on choice of forum and applicable law are only binding between the parties, and only within the scope of the contracts. It does, in particular, not affect the access to carry out public cross-border law enforcement or cross-border law enforcement relating to tort. Choice of forum and applicable law seem to be of most value in relation to contracts falling outside the scope of certain consumer contracts, where the parties may specify which court is to have jurisdiction and which law is to apply in the event of a dispute concerning the contract. Choice of forum and applicable law can be applied only with a limited effect and to a limited extent in certain consumer contracts.

This thesis does not deal with consequences of alternative law enforcement, but it may be assumed that geographical delimitation, all else being equal, will lower the risk of alternative cross-border law enforcement. Choice of forum and applicable law is not likely to have an effect on alternative law enforcement, since it, in essence, relates to traditional cross-border law enforcement.

6.2.6. Sixth Hypothesis

'The laws of the Internal Market limit the Business's possibilities in applying geographical delimitation.'

Discrimination on the grounds of nationality is prohibited under the EC Treaty.²⁶ The application of geographical delimitation may constitute, directly or indirectly, discrimination on the ground of nationality. It is not clear whether the prohibition on discrimination applies to private businesses. As mentioned above under the Third Hypothesis, Member States have an obligation to control its nationals, and to the extent private parties are bound by provisions of the EC Treaty, they may also rely on possible justifications of such measures. If the geographical delimitation is, as assumed in the test set-up, carried out as part of a commercial strategy and the reason is to avoid infringing the law of particular states, it is found reasonable to assume that geographical delimitation can be carried out. In the case, Familiapress v. Heinrich Bauer Verlag,²⁷ the European Court of Justice seems to accept discrimination by denying, based on domicile, certain users' access to certain features of a product in order to comply with the legal order of the state where activities are directed. It should be emphasised that the case law on this matter does not provide a clear-cut answer to this question.

This also corresponds with the proposed service directive,²⁸ which provides that conditions of access may be justified by objective criteria, including extra risks linked to rules differing from those of the Member State of origin. The country of origin principle limits the risks of cross-border law enforcement, and it may be used as an argument against justification of discrimination, in particular when the Business is not entering contracts with consumers. But the country of origin principle does notably not provide full harmonisation.

Finally, it can be argued that it seems unreasonable if the Business cannot itself choose how and when to roll-out its activities in different states.

6.3. Danish Summary (Dansk Resumé)

Denne Ph.d. afhandling behandler spørgsmål omkring virksomheders håndtering af risikoen for at blive mødt med grænseoverskridende håndhævelse af markedsføringslovgivning (urimelig konkurrence / regler om markedsadfærd) i forbindelse med handel og markedsføring på Internettet (en hjemmeside på World Wide Web).

Grænseoverskridende retshåndhævelse omfatter sanktioner for overtrædelse af fremmede staters lovgivning. Retshåndhævelse kan udføres af både private personer (privat retshåndhævelse) og af staten (offentlig retshåndhævelse). Den private retshåndhævelse kan ske både i og uden for kontrakt. Manglende overholdelse af regler om markedsføring kan for eksempel medføre ugyldighed eller indgå i en mangelsbedømmelse. Håndhævelsen kan ske gennem domstolene (traditionel retshåndhævelse) eller gennem alternativ retshåndhævelse. Alternativ retshåndhævelse dækker over for eksempel dårlig omtale af virksomheden eller blokering af virksomhedens hjemmeside.

I afhandlingen anvendes en traditionel, retsdogmatisk metode, som er anvendt på et nærmere defineret scenarium. Scenariet, som udgør en del af afhandlingens afgrænsning, skal gøre det lettere at omsætte afhandlingens resultater til praksis. Scenariet består af en virksomhed ("Virksomheden"), som er etableret i en EU stat og som overholder lovgivningen i den stat. I første omgang undersøges mulighederne for grænseoverskridende retshåndhævelse. Det antages at alternativ retshåndhævelse, i modsætning til traditionel retshåndhævelse, kan gennemføres uden medvirken fra den stat, hvori Virksomheden er etableret. Traditionel retshåndhævelse kræver at denne stat enten er villig til at anvende fremmed ret eller er indstillet på at anerkende og tvangsfuldbyrde fremmede retsafgørelser. Desuden vil der være omkostninger forbundet med et sagsanlæg i udlandet, selvom virksomhedens lovgivning anvendes under sagen.

Reglerne om fri udveksling af varer og tjenesteydelser i det indre marked samt e-handelsdirektivet sætter grænser for både privat og offentlig retshåndhævelse uanset om det sker som traditionel eller alternativ retshåndhævelse. Afsenderlandsprincippet i e-handelsdirektivet betyder, at virksomheder som udgangspunkt kun skal overholde lovgivningen i den stat, hvor de er etableret. Der er dog undtagelser for bl.a. forbrugerkontrakter. Virksomheden kan også i begrænset omfang påberåbe sig en kommerciel ytringsfrihed, som dog efterlader stater med en bred adgang til at regulere virksomheders markedsadfærd.

De fleste internationale aftaler om traditionel, offentlig retshåndhævelse bygger på princippet om dobbelt strafbarhed ("dual criminality"). Princippet betyder at handlingen skal være strafbar efter både gerningslandets og domstolslandets lovgivning. Dette kriterium er ikke opfyldt i det anvendte scenarium, idet det antages at Virksomheden overholder lovgivningen i den stat, hvor den er etableret. Bødeafgørelser kan i et vist omfang tvangsfuldbyrdes inden for EU, og fremmede myndigheder har, inden for det indre marked og i et begrænset omfang, mulighed for at anlægge sag i Virksomhedens land med påstand om forbud.

Traditionel, privat retshåndhævelse kan navnlig finde anvendelse i forbindelse med erstatning uden for kontrakt samt i forbindelse med visse forbrugeraftaler. Virksomheden kan i sådanne forhold blive sagsøgt i en EU eller EFTA stat (de 25 EU lande plus Island, Norge og Schweiz), som vil anvende national lovgivning. Sådanne afgørelse skal som udgangspunkt anerkendes og tvangsfuldbyrdes i Virksomhedens hjemlands. Grænseoverskridende retshåndhævelse kan også finde anvendelse i forbindelse med andre kontrakter, hvis sagens er nærmere tilknyttet en anden stat end den, som Virksomheden er etableret i. Spørgsmålet om anerkendelse og tvangsfuldbyrdelse af afgørelser afsagt uden for EU og EFTA kræver kendskab til national ret i den stat, hvor Virksomheden er etableret.

Reglerne om fri udveksling i det indre marked samt e-handelsdirektivet kan begrænse muligheden for anvendelse af fremmed ret i forbindelse med erstatning uden for kontrakt. Hvis Virksomheden sagsøges ved eget hjemting af en udenlandsk sagsøger i forbindelse med sager om erstatning uden for kontrakt samt visse forbrugeraftaler, er der en risiko for at fremmed ret anvendes. Dette gælder også selvom sagsøgeren er bosat uden for EU og EFTA.

Grænseoverskridende retshåndhævelse forudsætter som udgangspunkt, at Virksomhedens aktiviteter har været rettet mod den pågældende stat. Hjemmesider er som udgangspunkt tilgængelige for brugere i hele verden. Med udgangspunkt i udvalgt retspraksis, kan der fastslås en række faktorer, som kan tillægges vægt ved vurderingen af hvortil en aktivitet er rettet. Det drejer sig navnlig om faktorer vedrørende 1) adgang til hjemmesiden, 2) omfanget og karakteren af aktiviteten, 3) hjemmesidens udformning og relevans på markedet, 4) andre markedsførings-foranstaltninger og 5) placering af virksomheden og dens tekniske infrastruktur. Der er ikke tale om en udtømmende checkliste, da det er den økonomiske realitet bag aktiviteten, som er afgørende.

Virksomheden kan minimere risikoen for grænseoverskridende retshåndhævelse ved at afgrænse sine aktiviteter til bestemte markeder. Dette kan ske ved at tilpasse hjemmesiden med udgangspunkt i ovennævnte faktorer. "Adgang til hjemmesiden" kan begrænses ved at anvende teknikker til geografisk identifikation af brugerne. Dette kan kombineres med et krav om at brugeren skal tilkendegive, hvorfra han kommer. Såfremt en sådan teknisk afgrænsning er udtryk for et oprigtigt ønske om at begrænse sine aktiviteter til udvalgte markeder, er det en effektiv form for risiko-begrænsning. Det kan ikke udelukkes at en sådan afgrænsning inden for det indre marked kan være i strid med ikke-diskriminations-princippet. Det antages dog, at en sådan afgrænsning ikke er i strid med fællesskabsretten, såfremt afgrænsningen sker som led i en saglig forretningsstrategi og med henblik på at undgå at overtræde lovgivningen i de fravalgte lande.

Ved at indgå aftaler om lov- og forumvalg, kan Virksomheden begrænse risikoen for at blive underlagt fremmed ret og sagsøgt i udlandet. Sådanne aftaler har dog ingen effekt på risikoen for at blive i sagsøgt i forhold uden for kontrakt, og er kun i begrænset omfang anvendelige i forbindelse med visse forbrugeraftaler.

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