Journal of Law, Information and Science
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UTA KOHL[∗]
The Internet raises many challenges to existing laws. However, there has not been much attention devoted to the issue of remedies. In this new digital environment we may find that extraordinary remedies such as an injunction, may need to be re-examined and reassessed. This article looks at some of the policies and practical implications involved in deciding the most appropriate remedies for a Digital Age.
The emergence of the Internet has created a plethora of legal uncertainties. At the root of many of them is the issue of effective enforcement, even assuming the substantive legal rules are in principle adaptable to particular online conduct. This article focuses on one particular aspect of enforcement, namely the relative effectiveness of two types of traditional relief available to redress private wrongs: an award of damages and injunctive relief. The question addressed is the extent to which, if any, the online dimension has changed the relative usefulness and suitability of these two remedies.[1] It will be argued that injunctions are much better suited to the online environment. Unlike damages, they often provide a more effective remedy to the plaintiff, may be less draconian to the defendant and less inhibitory in their overall effect on electronic communications. Yet, as will be shown, the traditional legal position relating to entitlement to the remedies is based upon the assumption that damages are generally the more effective, less draconian and inhibitory remedy.
The above question will be addressed in the context of defamation, but may also offer some insights in respect of other wrongs where courts have traditionally been reluctant to grant injunctive relief.[2] The analysis may also be of some relevance to the infringement of intellectual property rights, such as trademarks and copyright (disputes about which are very prominent on the Internet) although courts seem already more willing to grant injunctive relief in those areas.[3] This readiness may be based both on high esteem for private property and the judicial attitude that the ‘protection of property interests [is]… the main objective of injunctions’.[4]
The traditional relationship of damages and injunctive relief arises out of, and reflects, the historical relationships of courts of law and courts of equity. The latter intervened to protect the plaintiff’s legal rights if the courts of law could not do so adequately.[5] If damages or other remedies at law were inadequate, equitable remedies such as injunctions came in.[6] Yet it has been argued that the historic preeminence of damages is dwindling:
‘[r]ecently… courts have tended to depart from this traditional jurisdictional analysis; and especially because equity and the common law are now administered in the same courts a general test has been put forward instead, whereby it is simply asked as the ultimate question whether it would be more just to grant an injunction than to award damages.’[7]
The argument for the relative equality of injunctions and damages is based on judicial statements such as the following:
‘The proper test in the circumstances is not whether damages would provide the plaintiff with an adequate remedy but rather the test is…”Is it just, in all circumstances, that a plaintiff should be confined to his remedy in damages?”’[8]
Such statements hardly support the equality of the two remedies. The only change is that the inadequacy-of-damages test has given way to the injustice-of-damages test and thus the entitlement to injunctions continues to depend on the unsuitability of damages. This reaffirms their status as an extraordinary remedy for which the plaintiff needs to make out a special case.[9] This special-case ethos is most obvious in the notion that entitlement to injunctions does not exist as of right but is, like all equitable remedies, at the court’s discretion. Even after a prima facie case in favour of injunctive relief has been made out, the court then exercises its discretion ‘by taking into account all relevant matters that tend towards the justice or injustice of granting the remedy… such as hardship, laches, unfairness, the lack of clean hands, and so on’.[10] While some argue that ‘the modern law of equitable remedies shows that they are not strongly discretionary… [because t]he books tells us when the courts will and will not order…[them]’,[11] injunctions remain a remedy encumbered by considerations of ‘the conscionability or justice of the behavior of the parties according to recognised moral principles’[12] which present a hurdle over and above a successful course of action, and over which the plaintiff needs to jump.
In short, the remedy of injunctive relief has to the present day remained an extraordinary remedy which is firmly placed behind the standard and primary remedy of damages. So is this justified, particularly in the online context? Of course, there is an inherent value in upholding a long-standing legal tradition. Yet apart from this no doubt powerful justification, is there any other reason why injunctions were and should in the future be treated as something special? It may be argued that injunctions justify some caution because, for example, they are more drastic and intrusive than damages which merely impinge upon the defendant’s purse and not directly upon otherwise very desirable activities, the encouragement of which is for the greater public good. But does this justification still hold true in the online context? This paper will look at the remedy afresh and see how their traditional legal relationship fits into the new online picture.
The case which illustrates the central concern of this article is the recent Australian decision of Macquarie Bank v Berg [hereafter Macquarie Bank].[13] In that case Macquarie Bank asked the Supreme Court of New South Wales to restrain Berg from publishing defamatory material about it on his website. Both Berg and the server from which the material was published were located in the United States at the time of the hearing. The judge, although acknowledging that the material was in fact defamatory of the Bank, refused to grant an interlocutory injunction, but noted at the very end of the judgement that the plaintiff might well be entitled to damages after a final hearing of the case:
‘It may be, if and when the defamation proceedings come to a hearing, a judge will conclude that the publication is defamatory…and is so serious as to result in a large award of damages. That possibility, of itself, does not militate against the application of the principles stated…’
Two of the reasons for the judge’s decision not to exercise her discretionary power to restrain the conduct are of relevance for the present discussion. Firstly, the judge was not persuaded by the merits of orders ‘the effectiveness of which is solely dependent upon the voluntary presence, at the time of his selection, of the person against whom the orders are made.’[14] Second, according to the judge, given that the injunction could not in actual fact be limited to NSW, granting an injunction would be to interfere with any publication right the defendant may have according to the laws of other jurisdictions, and indirectly superimpose the defamation law of NSW on the rest of the world.[15] For the purposes of the present discussion it is irrelevant that this case concerned the issue of an interlocutory rather than a permanent injunction, given that the above two reasons would or should have been equally applicable in the case of a permanent injunction. What is relevant here is the fact that the judge declined to grant an injunction while leaving open the possibility for an award of damages. So this case clearly concerned the relative suitability of remedies rather than the merit of the complaint. Furthermore this suitability was judged within the particular context of the Internet, which proved ultimately decisive for the final outcome.
The relative merit of injunctions vis-à-vis damages will be assessed afresh by simply asking which of the two is the better or more suitable remedy. The better remedy must be the all-round more effective remedy. Effective remedies are important because, as is often asserted, there is no right without a remedy. And it is not just remedies per se which lend reality to rights and obligations, but effective remedies. But when is a remedy effective? Does effectiveness equal enforceability? No doubt, enforceability is vital, so much so that ‘[e]nforceability by legal process has… sometimes been said to be the sine qua non of a legal right.’[16] And indeed, unenforceable remedies are arguably worse than no remedy, and by implication no right, at all as they ultimately discredit the rule of law:
‘To allow Court orders to be disobeyed would be to tread the road towards anarchy. If the orders of the Court can be treated with disrespect, the whole administration of justice is brought into scorn.’[17]
But that is not to say that a remedy is effective merely because it is enforceable. It is suggested that a remedy is effective if it promotes what the imposition of liability in the circumstances was designed to achieve. This, in turn, links with the question why the law imposes liability in the particular circumstances. On a very general level, liability for torts is imposed in furtherance of two main objectives: compensation and deterrence.[18] (Both of these hinge to some extent on enforceability.) So whether a torts remedy is effective depends on how well it can ‘correct’ the plaintiff’s situation and on how effective it is in dissuading other from engaging in comparable conduct. In addition, the effectiveness of any torts remedy must be measured by what so clearly permeates the entire system of torts liability and which appears also valid in many other fields, such as intellectual property law:
‘the adjudication of tort claims calls for a constant adjustment of competing interests. Opposed to the plaintiff’s demand for protection against injury is invariably the defendant’s countervailing interest not to be impeded in the pursuit of his own wants and desires. Hence administration of the law involves a weighing of these conflicting interests on the scales of social value, with a view to promoting a balance that will minimise the friction and be most conducive to the public good.’[19]
In defamation, the plaintiff’s interest in having his or her reputation unharmed is balanced against the defendant’s and the public’s interest in freedom of speech and the dissemination of information. And this balancing act also becomes apparent at the remedy stage, for example, in the proposition that interlocutory injunctive relief in defamation cases must be granted with great caution because of the danger of unduly interfering with the fundamental public interests in freedom of speech and freedom of information.[20] This balancing act in the name of achieving the greatest public good appears to be largely consonant with what is known in the European Law context as proportionality,[21] a concept which Hoffman J in Lock plc v Beswick also found useful in the domestic context:
‘… the court must employ a graduated response. To borrow a useful concept from the jurisprudence of the European Community, there must be proportionality between the perceived threat to the plaintiff’s rights and the remedy granted.’[22]
In summary, the relative merit of injunctions and damages in respect of online torts will be assessed by reference to their capability to redress, to deter and to provide a proportionate remedy. These capabilities depend on a number of factors which will be analysed below using the example of Macquarie Bank in many ways an archetypal online case
In terms of the relative suitability of injunctions and damages to redress the plaintiff’s loss there are three significant features in Macquarie Bank which are common to many Internet-related cases. These, it will be argued, make injunctions a better remedy than damages, or at least an equally good remedy.
Firstly, in Macquarie Bank the defamed plaintiff appeared to be particularly concerned about the site’s future potential to cause harm. In the online world such threat of injury as opposed to actual injury is not atypical. Online information often has a greater permanence than information communicated through TV, radio, telephone or newspapers, where the messages are intrinsically short-lived.[23] Most websites extend communication not merely over distance but also over time, akin to books, CDs, videos or photographs.[24] A site not seen today is very likely still accessible tomorrow unlike, for example, a TV show or radio programme. Indeed, many sites rely on their availability over time for their success and praise it as an online virtue. You can access your online bank account any time. So, invasion of legal rights and resultant injury due to online misconduct is often prospective or continuing rather than past and completed which clearly makes injunctions, always aimed at future conduct, generally the better remedy.
Interrelated with the prospective nature of online injuries is the fact that injuries arising out of online misconduct are often neither susceptible of easy proof nor easily valued on a monetary scale. It is doubtful whether Macquarie Bank could have proven that its reputation was actually damaged or what the monetary value of that damage was.[25] This is due to the fact that wrongs arising out of the misuse of words, image or sounds, which are typical for any communication medium (not just the Internet) generally give rise to intangible, as opposed to physical, injuries. [26] These may be hard to quantify, such as injured feelings,[27] or fairly easily quantifiable, such as the economic loss arising out of breaches of intellectual property rights. Yet even in respect of the latter loss, in the online world actual past economic loss, if there is any, is often negligible in comparison to what is perceived as the projected future damage, which is inherently difficult to calculate and particularly difficult on the Internet, where the commercial potential of online businesses continues to be subject to widely differing speculation.
The law governing entitlement to damages or injunctive relief is sensitive to these variables concerning the type of injury. As to the prospective nature of the injury ‘there has developed a tendency not to regard damages as constituting an adequate remedy for prospective injury to existing property of the plaintiff or his person.’[28] Moreover, in Mason v Shedd,[29] it was held that injunctions may be granted where it was impossible for the jury to estimate damages. Similarly, the case for equitable damages in lieu of an injunction may be significantly strengthened if
‘the injury to the plaintiff’s legal rights is small, and is one which is capable of being estimated in money, and is one which can be adequately compensated by a small money payment, and the case is one in which it would be oppressive to defendant to grant an injunction.’[30]
In the more recent decision of BT Plc & Others v One on a Million Ltd[31], concerning the threat of future passing off through the sale of domain names, it was held that proof that damage would occur was unnecessary even where a final injunction was being considered. If nothing else, this case illustrates the propensity of online disputes to arise without actual or proven, past or likely future damage and that valuable rights could be lost if the court refused to issue an injunction.
Another feature of Macquarie Bank, which is fairly typical for online cases and which points strongly in favour of injunctive relief, is that Berg, the defendant, was penniless. The impecuniosity of the defendant is not a surprise given the nature of the Internet, which has made the act of publishing and world wide trading cheap and easy and thus no longer the privilege of wealthy multinational companies with an extensive resource-intensive publishing machinery or a network of subsidiaries. But even with very few resources, the online poor can do a lot of harm. Yet, what is a surprise is that the judge in Macquarie Bank merely acknowledged the plaintiff’s argument that the defendant might be unable to meet an award of damages without attaching further weight to it. So does this mean that the fact that damages would be futile, and hardly capable of redressing the plaintiff’s injury, will not matter in law? In another Australian case involving online misconduct (albeit criminal rather than civil) and decided in the same month, the Federal Court declined to impose a fine for contempt of court because ‘there would be little point to such a penalty, having regard to the fact that the respondent is unemployed and appears to have few resources.’[32] Also, the relative wealth of the defendant has been held to strengthen the case against the grant of interlocutory injunctions:
‘If damages in the measure recoverable at common law would be an adequate remedy and the defendant would be in a financial position to pay them, no interlocutory injunction should normally be granted, however strong the plaintiff’s claim appeared to be at that stage.’[33]
Consistently, there is also authority suggesting that damages may not be regarded as an adequate remedy if there is a sufficient risk that they will not be recoverable.[34] So, contrary to Macquarie Bank, the impecuniosity of the defendant should boost, not just in fact but also in law, the case in favour of an injunction.[35]
So far the law appears to keep up well with the new realities of online disputes; certain factors which in fact make injunctive relief the better remedy and render damages inappropriate are recognised in law. However, another variable, which impacts on the ability of both injunctions and damages to provide redress to the plaintiff, is only acknowledged in legal arguments against injunctive relief, and not in favour of them or against an award of damages.
That variable and another feature of Macquarie Bank which is very typical for online cases is the transnational element. Berg and the server from which the defamatory material was hosted were in the USA while Macquarie Bank and the place of the hearing were in Australia. The Internet, as a transnational medium which allows people to communicate just as easily over long as over short distances, will often give rise to transnational disputes. How does this factor impact on the relative suitability of damages and injunctions to redress the plaintiff’s situation?
One real concern is the enforceability of court orders when the defendant and his assets are outside the jurisdiction. Yet, if this concern affects both an award of injunctive relief and an award of damages equally, there is no reason why it should be taken into account in favour of one rather than the other remedy. This brings us to the issue of enforcement of foreign judgements and to the question of whether a foreign injunction or a foreign award of damages stands a better chance of enforcement. First of all, there is to date[36] no uniform international order for the enforcement of foreign judgements. In the USA, recognition and enforcement of a judgement by a foreign court depends ‘upon local statutory law or comity… [which] basically require recognition unless the party opposing it can show violations of procedural due process, lack of personal jurisdiction by the rendering court, or… violation of public policy in the recognition state…’[37] In Australia, under its legislative regime, enforcement depends upon the reciprocal recognition and enforcement of Australian judgements in certain specified States[38] which provides a rather patchy framework, leaving the gaps to be filled by common law rules. At common law, a foreign judgement is not enforceable as such; but the judgment of a foreign court of competent jurisdiction (which is determined by reference to Australian principles[39]) creates an enforceable debt which, although not enforceable by direct execution, may form the basis for an action for the sum due under it. [40]
So even at the best of times, there would be some risk that any court order might not be enforceable in the State where the online wrongdoer is located or from where his or her activities emanate. That being said, an award of damages would certainly generally stand a better chance of enforcement in a foreign court than injunctive relief. For example, in Australia the situation is that non-money judgements such as injunctions, although theoretically within the scope of the Foreign Judgments Act 1991 (Cth), have not been included in relation to the listed reciprocating foreign jurisdictions.[41] Similarly, in the USA foreign injunctions are theoretically not excluded from enforcement:
‘[A] decree rendered in a foreign nation which orders or enjoins the doing or an act will be enforced in this country provided that such enforcement is necessary to effectuate the decree and will not impose an undue burden upon the American court and provided further that… the decree is consistent with fundamental principles of justice and of good morals.’[42]
In practice, however, they are rarely, if ever, enforced or even sought to be enforced.[43] At common law, enforcement is limited to foreign judgments for a debt or definite sum of money and a judgment which orders the defendant to do anything else, for example pursuant to an injunction, will not support an action on it.[44]
One reason why injunctions receive such second-rate treatment would seem to be that their enforcement is potentially more onerous than that of an award of damages, because, as is asserted, it requires greater supervision by the courts.[45] But in fact, even in a purely domestic context, a mandatory injunction[46] will not be granted if it is likely to involve the court in prolonged difficulties of enforcement or supervision.[47] Does that not mean that the chance that such an injunction reaches a foreign jurisdiction is already fairly remote? Furthermore, whether an injunction requires greater supervision by the courts must depend on the terms of the particular injunction, which in fact may prove to be straightforward and easily implemented. Also, the concern of supervision seems less objectionable if States are reassured of reciprocity. Another reason for the greater reluctance to enforce foreign injunctions may lie in the fact that injunctions are sanctioned by contempt of court, that is imprisonment, fine or the sequestration of assets.[48] Given the severity of these enforcement procedures it is not surprising that courts are reluctant to entertain foreign injunctions which are based on foreign law and on decisions the merits which the court does not review. In response to this point it may be argued that if courts were prepared to grant substitutional relief such as damages in the event of disobedience[49] with the foreign injunction, injunctions and damages would be put on almost an equal footing in relation to enforcement procedures.
All in all, it appears there is at least some risk of unenforceability both in relation to damages and injunction, albeit in the latter case a greater one. But that risk only matters in relation to the grant of injunctive relief. In Macquarie Bank the judge stated that although the potential unenforceability does not preclude an injunction, it is ‘a factor adverse to the exercise of discretion in the plaintiff’s favour.’[50] With that the judge followed long-standing precedent that although the court of equity is not debarred from intervening just because the acts that it seeks to have performed or enjoined are to take place outside the jurisdiction:[51]
‘[a]n injunction should not… be granted to impose an obligation to do something which is impossible or cannot be enforced. The injunction must serve a useful purpose for the person seeking the relief and there must be a real possibility that the order, if made, will be enforceable by the process in personam. However, the courts expect and assume that their orders will be obeyed and will not normally refuse an injunction because of the respondent’s likely disobedience to the order.’[52]
So while injunctions may be refused in the court’s discretion because of the risk of unenforceability, no such consideration would entitle a court to refuse an award of damages once a valid claim has been established.[53] This is not to say that considerations of enforceability have no bearing, whether directly or indirectly, on actions for damages. Certainly, the absence of the defendant within the jurisdiction often means that the court has no jurisdiction in personam and thus to hear the matter as the defendant cannot be served with the writ.[54] Yet, this would be applicable to all actions whatever the type of remedy sought, and indeed in actions for damages it is a doubtful reassurance. Considerations purely of enforceability would dictate that it is not the presence of the defendant but rather the presence of his or her assets within the jurisdiction which should establish the court’s jurisdiction.[55] The presence of the defendant in the territory, on the other hand, makes particular sense in relation to equitable reliefs which are ‘personal directions to the defendant to perform or abstain from the performance of particular acts.’[56] So one wonders whether the absence of the defendant’s assets (which is legally irrelevant) in an action for damages is not at least equally risky in terms of enforceability as the absence of the defendant in a claim for injunctive relief (which is potentially legally fatal at the jurisdiction stage and then later again at the equitable discretion stage). One cannot help but conclude that such inconsistency of treatment cannot easily be rationalised.
On a more practical level, by denying the plaintiff injunctive relief in favour of damages because of some risk of unenforceability (which is undeniably often there in the Internet context due to its global character) the plaintiff is given the second best remedy with an almost equal likelihood of enforceability. In fact, it will be argued that it is generally much easier for online defendants to obey injunctions than an award of damages, so much so that the issue of compelling enforcement would in fact not figure as prominently in relation to injunctions as in relation to damages.
One reason, apart from the value in upholding a long-standing legal tradition, which may be advanced to justify the treatment of injunctions as an extraordinary remedy which should not be as readily available as damages is that it is fundamentally a more draconian remedy. Firstly, injunctions are directed at prospective conduct, whether or not a wrong has already occurred,[57] and thus are essentially interfering with the defendant’s fundamental right to act free from interference so long as no wrong has been committed and proven. Unless there is contrary evidence, the court will not assume that a person will act unlawfully. Secondly, injunctions, particularly mandatory injunctions, may involve the defendant in heavy expenditure, out of proportion to the evil being prevented.[58] Another aspect of the draconian nature of injunctions is that its undesirable side-effects are often more severe than those of an award of damages and out of proportion to the end the imposition of liability is designed to achieve. For example a prohibitory injunction requiring a defendant to refrain from a particular act might mean that the defendant has to stop his or her entire activities. In contrast, damages appear to allow more easily for differentiation between the defendant’s un-offending and even desirable conduct, which he or she can continue, and the offending conduct, for which he or she must pay. An illustrative example is the nuisance case of Miller v Jackson where Lord Denning MR reasoned against the grant of an injunction to shut down a cricket pitch because it caused and threatened to cause damage to a neighbouring property:
‘In deciding between these two conflicting interests, it must be remembered, that it is not a question of damages. If by a million to one chance a cricket ball does go out of the ground and cause damage, the cricket club will pay. There is no difficulty on that score. No, it is a question of an injunction… I am of the opinion that the public interest should prevail over the private interest.’ [59]
Along the same lines, in Macquarie Bank an injunction was refused because, according to the judge, it would have meant that the defendant does not merely have to stop publishing the defamatory material in NSW but is prevented from legitimately publishing anything anywhere.[60] In contrast, damages could be tailored to the precise extent of the wrongdoing and reflect that the act was unlawful only according to NSW law. There appear to be two concerns underlying the judge’s reasoning. On the one hand an injunction would be too draconian in terms of its effect on the defendant, in that it would deprive him of any possible publishing rights he may have according to the laws of other jurisdictions.[61] On the other hand, and related to that, an order for injunctive relief would overstep the jurisdiction of the NSW court and interfere with the sovereign rights of other States to regulate conduct occurring on their territories. Both concerns may be addressed by looking at the practical effect an injunction would have on the defendant in comparison to the effect of damages.
The Internet is not merely transnational like other communication media, such as radio or television, which may be seen, heard or read in a few jurisdictions but it is prima facie super-transnational in the sense that a site can be accessed in every single jurisdiction. The legal significance of this is that it is much more difficult for online content providers to know which legal systems they are exposed to by virtue of their publications. Yet being on notice about legal requirements is generally a fundamental element of legal justice as it gives legal actors the opportunity to adjust their behaviour and avoid legal conflict. But even if this notice requirement is satisfied in the sense that online content providers are on notice that they are exposed to the laws of all jurisdictions,[62] there is obviously another difficulty. On the Internet even the most bona fide, law-conscious and diligent content providers are likely to be overwhelmed by the various national regulations to which they are exposed and thus are likely to fall foul of them if they decide that the benefits of online existence outweigh the risk of illegality and its consequences. In view of this heavy, if not to say crippling, legal burden on online content providers, the question is whether an injunction or an award of damages would be the more proportionate remedy at least where the bona fides of the defendant are beyond doubt. Admittedly, they were not beyond doubt in the case of Berg in Macquarie Bank who can be presumed to have set out to damage Macquarie Bank’s reputation. Also, it must be conceded that the arguments do not apply to online defendants who targeted one or a very few specific jurisdictions and thus could be expected to know and comply with the relevant law, as was again the case in Macquarie Bank. It would be hard to distinguish those cases from other off-line cases.
To decide which is the more proportionate remedy it must be appreciated that ‘…the court in granting…[an injunction] may limit it to what the court considers reasonable in all the circumstances of the case.’[63] So, contrary to what the judge in Macquarie Bank appears to assume,[64] an injunction in the online world does not necessarily mean that the entire site has to be shut down, but rather could mean that certain modifications have to be made to the site to make it compliant with the relevant national law.[65] Such an injunction (in its nature mandatory rather prohibitory) was issued by the District Court in CPC International Inc v Skippy Incorporated and Joan Crosby Tibbetts, which directed the defendants to remove some content from their site. To make such modifications is generally, from a technical perspective, easy and inexpensive, contrary to the assumption that mandatory injunctions are costly and burdensome. In contrast, an award of damages could be fatal for many content providers who, as explained above, are generally not wealthy giants. So, clearly for online wrongdoers, an injunction would often be a far more manageable remedy than damages. And from the perspective of other States, an award of damages could equally be viewed as an interference with their legitimate regulatory rights as it would require local online content providers, and not just the particular wrongdoer, to bring their sites into compliance with the foreign law (in the absence of the means to discriminate geographically between surfers). But most importantly, in terms of the wider public good, unmanageable orders for damages could have one of two negative effects. Online content providers, particularly the law abiding ones, might be discouraged from going online altogether and thus often perfectly legitimate and desirable online activity is repressed.[66] This in turn means that the former advantage of damages, namely separating the illegal and legal activities, is defeated. Alternatively and more likely, content providers might decide to live with the risk of illegality in a foreign place and a court order made against them. Should that risk turn into a reality they might decide to ignore the order, relying on the inefficiencies of the legal mechanisms for the enforcement of foreign judgments.[67] While this appears to apply to both injunctions and damages equally, it seems certain that bona fide and law abiding providers are likely to be keen to oblige provided it is within their powers. So an injunction requiring mere modification of the site is less likely to be ignored than an award of damages beyond the provider’s means. Needless to say, the effect of imposing court orders which are likely to be disobeyed with impunity is to encourage the very dangerous attitude that the Internet is beyond the law, and ultimately promotes disrespect for the law generally.
So the question now is whether the rules relating to the entitlement to injunctions and damages reflect this new reality that injunctions rather than damages tend to provide more proportionate responses to wrongs committed or threatened in the super-transnational online world. In law, notions of proportionality, taking account of the effect of the remedy on the defendant and the public good, seem far more embedded in the rules regulating entitlement to injunctions than to damages. For example, the court in exercising its equitable discretion has refused injunctions because they were simply prejudicial to the defendant.[68] At other times, injunctive relief was refused on the ground of delay and acquiescence[69] on the part of the plaintiff because either could mean that the defendant might suffer unreasonable hardship. If the injunction is not refused, a court may suspend it for some time on the ground that the hardship caused to the defendant upon immediate enforcement would be out of all proportion to the plaintiff’s gain.[70] For example, the operation of an injunction has been suspended for some years in order to give a defendant time to abate a nuisance.[71] Yet another illustration of the importance of proportionality of injunctions is the statement that a plaintiff may receive damages in lieu of an injunction if, inter alia, it would be oppressive to the defendant to grant an injunction.[72] Finally, whether the defendant is subjected to the disproportionate harshness of a mandatory injunction depends on whether he acted wantonly without regard to his neighbour’s rights or whether he acted ‘reasonably, though in the event wrongly.’[73] While these legal rules are based on the assumption that the effect of an injunction can be very harsh on the defendant, courts have also paid regard to the interest of the wider public, at least in certain legal contexts.[74] In defamation, for example, injunctions are always refused if it would have the effect of restraining discussion in the media on matters of public interest or concern, as the judge did in Macquarie Bank.[75]
These wider considerations, decisive to the plaintiff’s entitlement to injunctions, stand in stark contrast to the remedy of damages where the proportionality of its effects on the defendant or the public at large does not enter the picture. The simple reason for this is that entitlement to damages is non-discretionary. So once the wrong, in the absence of defences, has been established the plaintiff is entitled to be compensated for his or her losses. There are factors which will limit the award in certain cases, such as contributory negligence or, in defamation, an apology.[76] Yet, these factors really determine the extent of the wrong and only consequentially the extent of the award of damages. In other words, once the extent of the wrong has been established the measure of damages is strictly compensatory[77] and totally unaffected by considerations relating to the defendant, the value of his or her activities and the public benefit.
‘The general rule in English law today as to the measure of damages recoverable for the invasion of a legal right, whether by a breach of a contract or by commission of a tort, is that damages are compensatory. Their function is to put the person whose right has been invaded in the same position as if it had been respected so far as the award of a sum of money can do so…’[78]
One may argue that the defendant and various public interests are already taken into account at earlier stages, for example through the availability of certain defences such as truth in conjunction with public benefit in defamation actions. Yet this applies equally to actions for injunctive relief. Of course, if damages could be refused or reduced on grounds relating to their effect on the defendant and the wider public, the plaintiff might end up without a remedy altogether even though liability is beyond doubt. This, in turn, would be contrary to the fundamental notion that if the law is to impose liability it must provide a remedy on which the plaintiff can rely and which makes the imposition of liability meaningful to both defendant and plaintiff.[79]
In summary, the law is firmly predicated on the assumption that an injunction rather than an award of damages is the more draconian remedy, to the extent that it is entirely unreceptive to the new realities of the Internet where the effect of damages is often much more draconian than the effect of injunctions (requiring modification of a site). This could be problematic when the plaintiff asks for damages which the court could not refuse or reduce no matter how drastic their effect on the defendant and how undesirable from the perspective of the wider public. If, on the other hand, the plaintiff asks for injunctive relief the traditional assumption should not be problematic, as injunctions could and should much more rarely be refused on the various discretionary grounds based on harshness. This way the law would accommodate the new online realities. Yet, even with this scenario there are two potential problems. Firstly, injunctions may be refused on grounds of apparent hardship when in fact the harshness resulting from an award of damages would be much greater, yet would and could not be considered. Secondly, and as illustrated well in Macquarie Bank, judges uncritically continue to assume that injunctions are the potentially harsher remedies, which makes them more susceptible to refuse them and less open to ways to mitigate their harshness while not refusing them, as for example by limiting the terms of the injunction.
So far it has been argued that in the online world injunctions would often provide the best redress to the plaintiff while at the same time being the more proportionate remedy taking into account its effect on the defendant and the nature and benefits of online activity. But would injunctions also provide a greater incentive to legal compliance than an award of damages? On this score an award of damages seems to be clearly superior. In the context of nuisance it was noted:
‘If the only remedy is the injunction, polluters have every incentive to continue polluting until an injunction is obtained against them. By contrast, the threat of a sufficiently heavy and realistic award of damages is an immediate deterrent.’[80]
So effectively, if only injunctions and not damages were issued routinely to deal with online wrongs, content providers could disregard the law until they receive notice of the injunction. This would give them no incentive to take any pre-emptive measures to assure legal compliance. The cost of committing an online wrong would be zero and therefore not worth avoiding. In contrast, it would appear that if damages were awarded they might not give the particular defendant an incentive to improve the situation once they have been paid,[81] but would be an effective deterrent to other potential defendants.
While these arguments are prima facie valid they are not always as forceful in the online context. As has been argued above, the super-transnational nature of the Internet means that many online content providers cannot in any event adjust their behaviour in such a way as to bring it into compliance with the laws of every jurisdiction. So the effect of a ‘heavy’ award of damages would probably often be that bona fide content providers leave the Internet rather than wait for the next legal attack, of which they may be the next victim. Is not this a deterrent too far? Alternatively, the less scrupulous ones will not be deterred by the risk of a heavy award of damages, being resigned to the fact that they could not pay it in any event and aware that they are far away beyond the reach of the particular court’s arm. Again, these arguments do not apply to online content providers who are situated in the very jurisdiction in which the claim arose, as they can be expected to comply with the local law and such compliance can be enforced in any event.
All in all, it seems that the deterrent factor is fairly inconclusive in terms of establishing whether injunctive relief or an award of damages is the better remedy online. Nevertheless, ‘deterrence’ can certainly not be advanced as a decisive argument proving the superiority of an award of damages in the online world.
The relationship of damages as a common law remedy and injunctions as an equitable remedy goes back a long time and is likely to stay fundamentally the same for some time to come for no other reason than legal tradition:
‘The reason systems might not reach optimal outcomes lies in the ‘path dependent’ nature of legal evolution. This means that once certain institutional features of a system are ‘locked in’, the costs of reforming them come to be regarded as excessive, even though better alternatives might be available. …Unless and until an external even or ‘shock’ disrupts the path of development, systems are more or less locked into their particular comparative advantages or disadvantages’[82]
This paper recognises that, for better or worse, the equitable remedy of injunction will remain an extraordinary remedy. While the advent of the Internet means that certain factors which would have supported the special-remedy status of injunctions in the past are now at least partially replaced, it is doubtful whether the Internet provides a shock sufficient to disrupt the long-established path of legal development with the effect of making damages and injunctions truly equal remedies.
That is not to say that it does not provide enough of a ‘shock’ to make a re-examination of the long-established regime of remedies and its dusty rationale worthwhile. In the above discussion that regime was re-examined not by looking at rules governing the entitlement to injunctions and damages from an internal perspective by, for example, looking for internal inconsistencies, but rather by asking how these rules measure up to the very basic, external criterion of general effectiveness. Effectiveness in relation to torts remedies was defined by reference to the remedy’s ability to redress, its ability to deter and its ability to provide a proportionate response to a wrong committed. Using these three criteria it was concluded that, in the online world, there are various factors which make injunctions often the more effective remedy, at least in terms of redress and proportionality, and not significantly more ineffective than damages in terms of deterrence. This reality, but in particular the proportionality aspect, is not something the law can easily accommodate as in its very structure it assumes that damages are the less draconian remedy, allowing one to match the remedy exactly to the wrong committed with the least disturbance of desirable activity.
To say that the law is unlikely to change fundamentally in the near feature is not to rule out the possibility of some adjustments bringing the law more in line with modern reality. Firstly, judges have significant room for manoeuvre by showing less reluctance to exercise their discretion in favour of injunctions, rather than dismissing them lightly on the unquestioned assumption that there is an all-round better remedy at hand. Should ever the effect of an injunction be the purported reason for its rejection it would be wise to compare such effect to that of an award of damages.
Secondly and more importantly, a greater willingness by courts to recognise and enforce foreign injunctive decrees would go a long way towards making them a viable remedy in the transnational online world. In fact, the Preliminary Draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters (adopted by the Special Commission set up Hague Conference on Private International Law on 30 October 1999)[83] provides for such recognition and enforcement. Art 25(1) provides that a ‘judgment based on a ground of jurisdiction provided for in Articles 3 to 13… shall be recognised or enforced under this Chapter.’ The definition of judgment in Art 23 is very broadly phrased as ‘any decision given by the court, whatever it may be called, including a decree or order..’ In a supplementary report of the Special Commission, it is stated that the ‘judgment’ refers to ‘…decisions of any kind, such as orders for the payment of money, orders for the transfer of property, orders which seek to regulate the conduct of the parties and orders declaring the rights and liability of the parties…’[84] This appears to include injunctive relief. This interpretation is strengthened by the wording of Art 10(3), dealing with torts and delicts, where it is provided that a plaintiff may bring an action in the courts of States where the act or omission, or injury may occur, so clearly providing courts with jurisdiction in respect of anticipated future injury.[85]
Finally, it should be stressed that sometimes an award of damages rather than, or in addition to, injunctive relief will still be the best remedy for an online wrong. This is particularly so when the defendant is not without resources, the wrong committed and the action brought are an entirely domestic concern, or the defendant knew or should have known the jurisdiction(s) the law of which he or she would be exposed to by virtue of the online publication. This paper does not dispute that. It rather asserts that the effect of the Internet cannot be presumed to stop at the liability stage and in fact it does not.
[∗] Lecturer in Law, University of Wales, Aberystwyth. I would like to thank Prof Eugene Clark, University of Canberra, and Prof Ryszard Piotrowicz, University of Wales, Aberystwyth, for their comments on an earlier draft of this paper. Any errors or omissions remain my responsibility.
[1] ‘Remedies’ is used in this paper to refer to the relief available after a cause of action has been established rather than to the cause of action itself.
[2] For example, in respect of a breach of confidentiality. A recent well-publicised breach of confidentiality was the case concerning Patrick Jephson, the former private secretary of Princess Diana and his book “Shadows of a Princess”, where the UK Royal Family dismissed the possibility of seeking an injunction because of the perceived unlikelihood of obtaining a world-wide ban of a possible online publication. ‘Queen condemns Diana aide’s book’, The Times (UK), 16 September 2000, 1&7.
[3] Although the court relies upon a statutory right to grant injunctions, in fact the same equitable considerations remain applicable.
[4] F. H. Lawson, Remedies of English Law, (1980) 185.
[5] Courts of equity, in exercise of their auxiliary jurisdiction, would ensure that the defendant complied with his legal obligations through the use of their special powers of enforcement. They would also intervene when the exercise of strict legal rights was unfair or inequitable. I.C.F. Spry, The Principles of Equitable Remedies (4th ed, 1990) 27f.
[6] Ibid 374. Note also that other legal remedies have to be inadequate for equitable remedies to be available. Ibid 380f.
[7] Spry, above n 5, 374f.
[8] State Transport Authority v Apex Quarries [1988] VicRp 26; [1988] VR 187, 193; affirming Evans Marshall & Co Ltd v Bertola SA [1973] 1 WLR 349.
[9] But, as noted above, the willingness of courts to grant injunctions still varies strongly depending on the wrong complained of. For example, in respect of nuisances, courts tend to grant injunctions almost as of right. Stephen Tromans, ‘Nuisance – Prevention or Payment?’ (1982) 42 Cambridge Law Journal 87. See also Redland Bricks Ltd v Morris [1970] AC 652, 664.
[10] Spry, above n 5, 4.
[11] Peter Birks, ‘Three Kinds of Objection to Discretionary Remedialism’ (2000) 29 Western Australian Law Review 1, 13.
[12] Spry, above n 5, 6.
[13] [1999] NSWSC 526 (Simpson J, 2 June 1999), available at http://www.austlii.edu.au/cases/nsw/supreme-ct/1999/526.html. For a detailed discussion see Kohl, ‘Defamation on the Internet – A Duty Free Zone After All?’ [2000] SydLawRw 4; (2000) 22 Sydney Law Review 119, at http://www.law.usyd.edu.au/~slr/v22/contents.htm.
[14] Macquarie Bank v Berg [1999] NSWSC 526 (Simpson J, 2 June 1999) para 11.
[15] Macquarie Bank v Berg [1999] NSWSC 526 (Simpson J, 2 June 1999) para 14.
[16] George Whitecross Paton, A Text-book of Jurisprudence (4th ed, 1972) 286.
[17] Canada Metal Co Ltd v Canadian Broadcasting Corporation [1975] 48 DLR 641, 669 (O’Leary J).
[18] Donald Harris, Remedies in Contract and Tort (1988) 189-192. See also Smith New Court Securities Ltd v Scrimgeour Vickers Ltd [1996] UKHL 3; [1997] AC 254, 278f where Lord Steyn noted ‘Counsel… argued that the sole purpose of the law of tort generally, and the tort of deceit in particular, should be to compensate the victims of civil wrongs. That is far too narrow a view. Professor Glanville Williams identified four possible purposes of an action for damages in tort: appeasement, justice, deterrence and compensation.’
[19] John G Fleming, The Law of Torts (9th ed, 1998) 8.
[20] In fact this was yet another reason why the judge refused the injunction in Macquarie Bank v Berg [1999] NSWSC 526 (Simpson J, 2 June 1999) para 16.
[21] For example, Art 21 of the Amended Proposed EC Directive on Electronic Commerce (Com (1999) 427 final) which provides ‘Member States shall determine the sanctions applicable to infringement of national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are enforced. The sanctions they provide for shall be effective, proportionate and dissuasive…’
[22] [1989] 1 WLR 1268, 1281 (concerning Anton Pillar Orders).
[23] There are, of course, exceptions to the rule. Online radio stations (eg. http://www.internetradio.com) and news sites the content of which are constantly changing are similar to traditional broadcast media. Also, videos and other recording devices allow TV or radio communications to be extended over time and not just over distance.
[24] This distinction based on the permanence or transience of the communication is not unknown in law. In fact, the common law distinction between libel and slander is based on the criterion of permanence of form. Fleming, above n 19, 602f. For an analysis of media and its evolution: Paul Levinson, The Soft Edge - A Natural History and Future of the Information Revolution (1997).
[25] This is less of a concern for example in a common law libel action as the traditional rule is that to be entitled to general damages you need not prove actual injury to reputation as some damage will be presumed. Fleming, above n 19, 658.
[26] Such as the injuries arising out of a breach of confidentiality or out of a breach of an intellectual property right. Use or misuse of the Internet may occasionally also give rise to a physical injury. For example, an online misrepresentation or false statement about a drug or chemical can easily lead to a physical injury.
[27] A. I. Ogus, The Law of Damages (1973) 230. In the context of defamation, damages are said to ‘serve “as a vindication of the plaintiff to the public and as consolation to him for a wrong done. Compensation is here solatium rather than a monetary recompense for harm measurable in money” … Included are his injured feelings, indignation and the psychological need for satisfaction… None of these elements can be measured on any objective monetary scale.’ Fleming, above n 19, 658.
[28] Spry, above n 5, 375f.
[29] (circa 1879) RED 478 (Can).
[30] Shelfer v City of London Electric Lighting Co [1894] UKLawRpCh 212; [1895] Ch 287, 322-323. Note, this rule has been criticised for unduly limiting the discretion of the court. Spry, above n 5, 624f
[31] [1998] EWCA Civ 1272; [1998] FSR 265; confirmed on appeal BT Plc & Others v One in a Million Ltd [1998] EWCA Civ 1272; [1999] 1 WLR 903.
[32] Australian Securities & Investments Commission v Matthews [1999] FCA 803 (Sackville J, 16 June 1999) para 32. The alternative sanction for contempt of court was preferred in this case: the offender was imprisoned for two months.
[33] American Cyanamid v Ethicon Ltd [1975] UKHL 1; [1975] AC 396, 408.
[34] Hodgson v Duce (1856) 2 Jur NSW 1014; Aristoc Industries Pty Ltd v R A Wenham (Builders) Pty Ltd [1965] NSWR 581.
[35] In exceptional circumstances this may not be the case: In Wookey v Wookey [1991] 3 WLR 135 Butler-Sloss LJ refused to grant an injunction against a minor as there were no effective means of enforcing it, given his lack of assets or income and given that as a minor he could not be imprisoned.
[36] But note a recent development: Preliminary Draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters, adopted by the Special Commission of the Hague Conference on Private International Law on 30 October 1999, available at http://www.hcch.net/e/conventions/draft36e.html.
[37] American Bar Association, Achieving Legal and Business Order In Cyberspace: A Report on Global Jurisdiction Issues Created by the Internet, London Meeting Draft, ABA Global Cyberspace Jurisdiction Project, at http://www.kentlaw.edu/cyberlaw, 92.
[38] Foreign Judgments Act 1991 (Cth).
[39] See also Foreign Judgments Act 1991 (Cth) s.11, which deals with judgments to which the registration procedure under the Act is not applicable and which provides when a foreign court must not be regarded to have had jurisdiction to give the judgment.
[40] Schibsby v Westenholz (1870) LR 6 QB 155; Adams v Cape Industries Plc [1990] 1 Ch 433, 509.
[41] Section 5(6), (7) Foreign Judgments Act 1991 (Cth); See also Australian Law Reform Commission, Legal Risk in International Litigation, ALRC 80, at http://www.austlii.edu.au/au/other/alrc/publications/reports/80/ALRC80.html, para 6.68- 6.74.
[42] Restatement (Second) of Conflict of Laws § 102, comment g, at 310 (1971); David Buzard, ‘US Recognition and Enforcement of Foreign Country Injunctive and Specific Performance Decrees’ (1989) 20, California Western International Law Journal 91. There is a great void of literature dealing with the enforcement of foreign non-monetary court orders. A recent excellent paper is: Catherine Kessedjian, Note on Provisional and Protective Measures in Private International Law and Comparative Law (1999), Preliminary Document No 10, prepared for the Special Commission set up by the Hague Conference on Private International Law in connection with the Preliminary Draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters, at http://www.hcchy.net/e/workprog/jdgm.html , 93.
[43] Buzard, ibid.
[44] Lawrence Collins (ed), Dicey and Morris on the Conflict of Laws (13th ed, 2000) vol 1, 476; Re Resort Condomininiums International Inc [1995] 1 Qd 406, holding that a foreign interlocutory injunction is not enforceable at common law.
[45] Buzard, above n 42, 92.
[46] A mandatory injunction requires a positive act while a prohibitory injunction requires the defendant not to act in a particular way.
[47] Ryan v Mutual Tontine Association [1892] UKLawRpCh 163; [1893] 1 Ch 116.
[48] Section 42.6 Supreme Court Rules 1970 (NSW). Section 98 Supreme Court Act 1970 (NSW) provides that a ‘judgment … for the payment of money shall not be enforceable: (a) by process of the Court for attachment of the person or for committal…’
[49] The possibility exists: Ansah v Ansah [1977] Fam 138, 144; Spry, above n 5, 361.
[50] Macquarie Bank v Berg [1999] NSWSC 526 (Simpson J, 2 June 1999) para 11.
[51] Spry, above n 5, at 36ff.
[52] Wookey v Wookey [1991] 3 WLR 135, 140f (Bulter-Sloss LJ). Cf Vincent v Peacock [1973] 1 NSWLR 466, where it was held that it is no ground for refusing an injunction that it will have no practical effect, when the reason for this is the failure of the defendant to obey it, nor is it a ground for refusing an injunction that proceedings by way of attachment will occasion practical difficulties. For a middle view see Spry, above n 5, 41f: ‘as a matter of equitable principle, …the precise probability that the particular order in question will be obeyed will have more or less weight according to the other circumstances and… will be taken by the court in account in exercising its discretion.’
[53] Except in respect of equitable damages, which are like all equitable remedies discretionary.
[54] Only in exceptional circumstances may the court allow service out of jurisdiction. For those circumstances see: S.10.1A Supreme Court Rules 1970 (NSW).
[55] This is the case in many civil law countries. Michael Akehurst, ‘Jurisidiction in International Law’ (1972-1973) British Year Book of International Law 145, 171f.
[56] Spry, above n 5, 30f. He continues: ‘On the other hand, an order made by a court of common law was either of a general declaratory nature… or else was a direction that the plaintiff should recover goods or … damages … from the defendant…the order was directed to ensure that the required position should be brought about.’
[57] If at the time of granting the proposed injunction, no wrong or breach has already occurred, the injunction is a quia timet injunction which requires that the plaintiff must show that there is a strong probability that the mischief will, in fact, occur. Spry, above n 5, 369ff.
[58] Redland Bricks Ltd v Morris [1970] AC 652
[59] [1977] EWCA Civ 6; [1977] QB 966, 981f.
[60] Macquarie Bank v Berg [1999] NSWSC 526 (Simpson J, 2 June 1999), para14.
[61] Ibid.
[62] In another paper I have argued that this exposure is or should in fact not be world-wide but rather limited to a few jurisdictions in which the site is likely to be accessed due to its subject-matter, URL, on and offline advertising, language etc. See Kohl, above n 13.
[63] Warner Brother Pictures Inc v Nelson [1937] 1 KB 209.
[64] Macquarie Bank v Berg [1999] NSWSC 526 (Simpson J, 2 June 1999), para 12.
[65] This obviously does not apply to site which is in its entirety defamatory or in breach of confidentiality. Another alternative is that the defendant makes the site geographically sensitive, only allowing people from certain jurisdictions to access it.
[66] Businesses for which online activity is but one way of trading may easily be discouraged.
[67] Even in the context of the domestic enforcement system in the United Kingdom it has been noted: ‘Some debtors are known to play the system to their advantage, in the knowledge that only the most tenacious or well-funded creditor will be able to make them pay a judgment debt.’ Lord Chancellor’s Department, Key Principles for a New System of Enforcement in the Civil Courts, Enforcement Review 2nd Consultation Paper (1999), at http://www.open.gov.uk/lcd/consult/general/ enforce2.htm, para 3.5.
[68] Folkestone Corpn v Woodward [1872] UKLawRpEq 170; (1872) LR 15 Eq 159
[69] Russel v Watts [1883] UKLawRpCh 283; (1883) 25 Ch D 559
[70] Stollmeyer v Petroleum Development Co Ltd [1918] AC 498
[71] Ibid.
[72] Shelfer v City of London Electric Lighting Co, Meux’s Brewery Co v City of London Electric Lighting Co [1894] UKLawRpCh 212; [1895] Ch 287 [1891] All ER Rep 838, see text accompanying n 33.
[73] Redland Bricks Ltd v Morris [1970] AC 652, 655 ( Lord Upjohn).
[74] Miller v Jackson [1977] QB 103 (nuisance). In the context of nuisance, judges have, however, generally been reluctant to look into the effect of granting an injunction on the defendant and on the public which has been criticised: Tromans, supra n 9, 90. Fleming, supra n 19, 445f.
[75] Macquarie Bank v Berg [1999] NSWSC 526 (Simpson J, 2 June 1999), para 16; Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153; Church of Scientology of California Incorporated v Reader’s Digest Services Pty Ltd [1980] 1 NSWLR 345.
[76] Fleming, above n 19, 662.
[77] With the exception of exemplary damages which, however, have lost much of their legitimacy since the House of Lord decision in Rookes v Barnard [1964] AC 1119.
[78] The Albazero [1977] AC 774, 841 (Lord Diplock).
[79] The case of Miller v Jackson [1977] EWCA Civ 6; [1977] QB 966 is an example of when the imposition of liability may be refused because of the non-availability of a suitable remedy.
[80] Tromans, above n 9, 103.
[81] Ibid.
[82] Simon Deakin, International and Jurisdictional Issues (August 1999) in Literature Survey undertaken by the ESRC Centre for Business Research, University of Cambridge, for the Company Law Review, Ch 8, at http://www.dti.gov.uk/cld/review.htm, 10.
[83] Above n 36.
[84] Peter Nygh, Fausto Pocar, Report of the Special Commission on Preliminary Draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters (2000) Preliminary Document No 1, Hague Conference on Private International Law, at http://www.hcchy.net/e/workprog/jdgm.html , 93 [emphasis added].
[85] Ibid 60.
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