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