Doctors, Devices and Defects: Product Liability for Defective Medical Expert Systems in Australia
PAUL F HYNES

Abstract
Australia is committed to the adoption of electronic decision support (Medical Expert Systems or MES) as a vehicle for the reduction of medical error. The take up of these technologies, however, will depend in part on the balance achieved by the law, between the appropriate regulation of such technologies and the extent to which manufacturers and developers may face direct liability for injuries associated with their use. Presently, manufacturers of such systems may face strict liability under Australia's product liability laws for injury caused by ‘defective goods’. As ‘medical devices’, such systems are also regulated under the Australian therapeutic goods regime.

For a number of historical and interpretational reasons, product liability provisions are unlikely to provide an effective cause of action in relation to MES. This is because computer systems and the information contained within them are not easy to characterise as ‘goods’, the question of whether software defects are manufacturing or design defects, difficulties in determining whether a defect arose before or after supply, and the issue of whether reliance on information (mediated or otherwise) can itself be said to be a proximate cause of injury. This paper takes the view that were product liability laws to have operation, it is unlikely to be such as to impose strict liability on the manufacturers of MES for design defects.

A regulatory balance may, however, be achieved through legislative regime regulating the use of therapeutic goods. This regime is not affected in its operation by the interpretational difficulties referred to above in connection with product liability, and allows for the assessment of the devices on the basis of the purpose for which, and the conditions under which, the devices were intended to operate.

An Introduction to Jurisdictional Issues in Cyberspace
DAN SVANTESSON

Abstract
Imagine a state proclaiming that it will claim jurisdiction over, and apply its laws to, any website that can be accessed from a computer located in its territory. The response would perhaps be outrage from some. Others would point to the ineffective nature of such a rule, and yet others would perhaps view the model as infeasible. Indeed, when the Advocate-General’s office of Minnesota in the mid 90’s issued a statement that: ‘[p]ersons outside of Minnesota who transmit information via the Internet knowing that information will be disseminated in Minnesota are subject to jurisdiction in Minnesota courts for violations of state criminal and civil laws’, it was met with strong criticism.

Against this background, persons unfamiliar with private international law (or as the discipline is referred to in common law systems, conflict of laws) might be surprised to find that many, not to say most, states’ private international law rules do in fact provide for jurisdictional claims over any website that can be accessed in its territory, in relation to a wide range of legal matters. Similarly, many, not to say most, states’ private international law rules do provide for the court to apply the law of the state where the court is located in many situations where jurisdiction is being exercised over a foreign website.

This article examines the issues associated with the application of private international law to online activities. In doing so, the four interconnected elements of private international law; jurisdiction, choice of law, the courts’ option of declining jurisdiction and recognition and enforcement are examined. Examples and experiences are primarily drawn from Australia, and particular focus is placed on the Internet defamation dispute between US publishing giant, Dow Jones & Company Inc, and Victorian businessman, Joseph Gutnick. However, non-Australian materials, particularly from the European Union (i.e. community instruments), the People’s Republic of China and the United States of America, are relied upon.