Establishing Jurisdiction Online: the Problem of the Access-based Jurisdictional Principle
The advent of the Internet has posed numerous challenges to regulators worldwide. One of these challenges concerns the uncertainty about the meaning of State jurisdiction online according to international law.
Hi Jordi, Many thanks for your question, which is very interesting! I believe that the answer to your question lies in the national data protection laws of the countries involved in the sending and receiving of the spam emails. My understanding is that unfortunately there isn’t a universal jurisdictional rule that all the States follow to regulate the sending of spam emails. Therefore, each State decides how to regulate this subject matter and how broad the territorial scope of their national laws is. In your example, Spain and the US are the countries where the receivers of the spam emails are located. In Spain, the Act 34/2002 on Information Society Services and E-Commerce applies to the ISPs that are established in Spain, established in a Member State of the EU/the European Economic Space or that are outside the EU but target Spanish market/Spanish Internet users. This is valid irrespective of where both the company sending the spam emails and the server from where the emails were originally sent are located. The same goes for the EU General Data Protection Regulation, which will apply in May 2018. The regulation applies to the processing of personal data of Internet users established within the EU, irrespective of the location of the data controller. Therefore, the jurisdictional approach taken in the Spanish and the EU Regulation case is that of the users/market targeted by the spam email, rather than that of the country where the servers are located. Anyway, I am afraid that I am not a specialist in data protection laws, therefore please take my answer with a pinch of salt. Just my two pennies.
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