دادگاه صالح و قانون حاکم در دعاوی علیه شبکه‌های اجتماعی مجازی

Objective
Virtual social networks are considered a type of media. Media refer to any material or immaterial means on paper or electronic media in real space or for publishing and announcing information, which can be licensed or unlicensed. It seems that the essence of any media activity is publicity, accessibility, and the ability to have a large-scale impact. Media, as a necessary and inevitable social phenomenon, can have its own legal challenges in any form. To solve these challenges, legal solutions must be sought at both legislative and judicial levels.
The importance of this issue is very high, given the undeniable increase in the impact of media activities in the transnational dimension. This is because, due to the entry of a foreign element, multiple legal systems are involved in solving this problem. Any legal system that is affected by transnational media activity has a claim to address that issue through its courts and laws. An area that is the subject of discussion is the principles of conflict of laws and conflict of courts. Virtual social networks are considered one of the types of media and can be examined from the perspective of media law and its considerations. An important point in this regard is the impossibility of determining the concept of borders and, consequently, cross-border activity in the context of virtual social media. Because borders in their physical and classical sense do not make sense in cyberspace, and crossing borders is not a material phenomenon. In addition, the method of cross-border activity is examined in terms of impact rather than being justified in terms of the place of occurrence of the act.
Although the subject of the present study has a history of study in foreign countries such as the United States of America and European Union member states, it is considered a new matter in Iranian law. Perhaps the reason for the long history of discussion in the mentioned countries is that the use of virtual social networks has a longer history in their countries and is considered a relatively new matter in the Iranian legal system. On the other hand, the issue of filtering and perhaps the lack of recognition of the aforementioned networks at different times in Iranian law has caused the legal challenges arising from these communications to be hidden and perhaps the legal solutions to them to be blurred. Although in Iran, a court of law entitled Culture and Media has been allocated in proportion to the subject matter of these challenges, there is no accessible judicial practice from the opinions of the courts that have examined the decisions issued in this court. Also, in civil lawsuits that are directly filed in the courts, reliable judicial practice has not been produced. The Electronic Commerce Law approved in 2003 attempted to identify electronic platforms and their rights and duties, but it does not provide a solution regarding the vitality and the extensive ability to announce information through the aforementioned platforms. Perhaps at the time that the law was approved, the legal challenges arising from virtual social networks had not yet emerged. In addition, the Computer Crimes Law approved in 2009 has created a suitable platform for criminally dealing with those activities that are criminal and are committed through computers. The Islamic Penal Code approved in 2013, considering the punishment for legal entities and the possibility of attributing the crime in some cases to the managers of the legal entity, can be used in this regard.
Research Methodology
This article is written using an analytical method, in such a way that first the data from different legal systems are collected, compared and examined with the Iranian legal system, subjected to legal analysis and interpretation, and then entered into this article.
Findings
The most important finding of this article is that so far, major legal systems such as the European Union and the United States have not adopted specific rules for jurisdiction and the method of choosing the law in virtual transnational lawsuits. Also, the judicial practice of these countries shows that the principles of conflict of jurisdiction of courts and conflict of laws in these lawsuits and other lawsuits that are not of a comparative nature are the same. The same approach has been followed in Iran so far.
Discussion & Conclusion
When it comes to filing a lawsuit against virtual social networks, the first issue that comes to mind is filing a lawsuit against the companies that own such networks. Besides, the important question here, is the extent of the duties of social network owners towards citizens and governments for disclosing user information, which is a two-faced issue. On the one hand, these platforms are obliged to protect the privacy and personal information of users, and on the other hand, since they have the power to influence the sovereignty of countries through the conscious circulation of information, they have obligations towards them.
It seems that whenever the aforementioned networks can reach an agreement with the governments on this issue, they are considered to be infringers in terms of omission, but otherwise, there is no obligation in this regard. Assuming that there is a contract, the competent court and the governing law will be subject to the contractual requirements, but assuming that there is no contract, the assumption of condemnation of the companies that own these networks seems very unlikely.
Regarding the governing law, assuming that there is a contract, the law governing the contract is the criterion of action, which can be determined by the free will of the parties. Assuming that there is no contract, the law governing non-contractual obligations is the criterion of action, which can be the law of the place of the harmful act, the law of the place where the damage occurred, and the law that is most relevant to the dispute.