Without uniform laws among the nations of the world, content providers in the United States risk shutdowns, run-arounds or worse abroad
From the Winter 2001 issue of The News Media & The Law, page 12.
By Ashley Gauthier
As use of the Internet quickly expands around the globe, the fact that it makes posted information readily available to any person at any time has proven to be both an advantage and disadvantage, depending on the substance of the posted information.
While the Internet has been praised for making news and educational materials widely available, it also has been criticized for the dissemination of pornography, hate speech, defamatory statements and other materials that a particular nation or group may find undesirable.
Nations are struggling to determine how to eliminate undesirable content and trying to shut down or limit access to United States-based Web sites, despite protection under the First Amendment. The effort to punish offensive content providers is expanding worldwide, raising the issue of how the burgeoning global economy will fare given the uncertainty companies and individuals face with their use of the Internet.
The first example of a foreign nation entering a judgment against a U.S. company for objectionable Internet content came last fall. A French court ruled on Nov. 20, that Yahoo!, based in Santa Clara, Calif., violated French law by allowing Nazi memorabilia to be auctioned on its Web site. Judge Jean-Jacques Gomez ordered Yahoo! to block French users from accessing any Nazi material on its site or pay a fine of $13,000 a day. Yahoo! argued that it was technologically impossible to block French users from its site and contended that a French court should not have jurisdiction over the content of an American Web site.
Yahoo! offers its services to users around the world with different Web sites in different languages. The main site, www.yahoo.com, is designed for Americans. The French version, fr.yahoo.com, complies with French law. Other sites, including au.yahoo.com (Australia), de.yahoo.com (Germany), ch.yahoo.com (U.K. & Ireland), and others comply with the specific laws and regulations of the targeted nation.
Greg Wrenn, an attorney for Yahoo!, said the company created different Web sites for different nations not only to meet the laws of each country, but also to conform to social mores of the locality.
“We tried to do the right thing by making targeted sites, but we can’t make our sites acceptable to everyone around the world.” Wrenn added that Yahoo! “does not expect one size to fit all. We go into a market and target that market. We have a local team with local content do our best to follow local laws and mores.”
However, given the nature of the Internet, a French user is not limited to the French Yahoo! Web site. One may access the American site merely by typing in the address.
The Union of Jewish Students and the International Anti-Racism and Anti-Semitism League sued Yahoo! arguing that the company must comply with French law if it is accessible to people in France. French law has restrictive rules concerning the sale of Nazi-related items and hate speech.
After the adverse ruling by the French court, Yahoo! sought the protection of an American court. Yahoo! filed a lawsuit in the U.S. District Court in San Jose, Calif. arguing that the French court’s rulings violated the First Amendment. Yahoo! also contended that the French court does not have jurisdiction over the operations and content of a U.S.-based Web site. The federal district court has not yet issued a ruling.
However, Yahoo! has been under enormous pressure from activist groups to eliminate Nazi-related Web sites and materials. Although Yahoo! has stated that it did not want to act as a censor, it eventually relented to pressure. On Jan. 3, the company stopped auctioning Nazi-related memorabilia, citing business reasons, not a concession to the French court.
The effect of the French court ruling is of great concern to the American media. Proponents of free speech fear that other nations will attempt to enforce their content regulations on American companies, halting the free flow of information on the Internet.
China, for example, has banned access to numerous mainstream American media outlets, including the Wall Street Journal, The New York Times and The Washington Post. Fortunately, China has not tried to tell those companies that they cannot publish their material on the Web; rather, the Chinese government has tried to use technological solutions to block access to those Web sites from within China. Nations such as Cuba, Saudi Arabia, Singapore and Malaysia have imposed similar restrictions.
Wrenn said, however, that Yahoo! has been able to work with the Chinese system, despite its strict controls. He noted that the company hires local people and provides local content, following China’s rules. If the Chinese government decides that it does not like something posted on the Yahoo! site, then “they can cut you off for a while.” Wrenn joked that Yahoo! would always know when the government was unhappy with its site. There would be no lawsuit: “your site just goes down.”
Other nations, such as Germany and Italy, have taken a different tactic, trying to shut down the offensive content at the source.
The Federal Court of Justice (Bundesgerichtshof) ruled on Dec. 12, that German law applies to people who post content on the Web from outside the country, as long as the content can be accessed by people in Germany. The defendant in the case, German-born Australian Frederick Toben, used an Australian-based Web site to post his belief that the Holocaust never occurred. If Toben ever sets foot in Germany, he will be arrested and sent to prison because he has been convicted under German law, despite hosting a legal Web site in Australia.
Andy Mueller-Maguhn, a board member of the International Corporation for Assigned Names and Numbers (ICANN), the organization charged with tracking the names given to Web sites, questioned the authority of the German court.
Wired.com quoted Mueller-Maguhn saying, “The court decision of the Bundesgerichtshof seems to be the worst Internet-dependent court decision so far. If other countries would take this as an orientation and start to apply their laws on citizens of other countries acting in their countries, the worldwide free flow of information could lead very fast to an unfree situation in the real world.”
On the other side of the argument, Rabbi Abraham Cooper, associate dean of the Simon Wiesenthal Center in Los Angeles, praised the German ruling and asked American free speech advocates to accept Europe’s restrictions on hate speech. Cooper was one of the leading advocates pressuring Yahoo! to remove hate speech.
Cooper told Wired.com, “we have to commend the Germans and the French for basically saying ‘in our societies, this is how we deal with the problems of hate, racism and Holocaust denial. You in America have your own laws, but at least respect our values.’ It was their blood that was shed. What’s theoretical for us is very real over there.”
Cooper also suggested that the best course of action is to develop international standards. German officials agree and have asked for international cooperation, although they realize the difficulty presented by crafting content regulations without offending American principles of free speech. Hans-Gertz Lange, a spokesman for a German agency, told the IDG News Service, “the best chance to fight against right-wing material on the Internet is on an international level. But when I think of the U.S. or Canada, it’s extremely unlikely that they’ll change their laws in accordance with ours. Their concept of freedom of speech is tied up with their history; our laws against incitement to racial hatred are tied up with ours.”
But an understanding of the First Amendment has not stopped Germany from trying to shut down offensive content. A week after the Federal Court of Justice ruling, German officials asked media conglomerate Bertelsmann to try to remove offensive songs from Napster, an on-line music service that allows users to access music over the Internet. Some of the songs included Nazi-themes and hateful content. Bertelsmann publicly condemned the exchange of Nazi music, but stated it did not have the technological means to prevent it.
Andreas Schmidt, head of Bertelsmann eCommerce Group, told Wired.com that the company could not prevent the exchange of offensive music because “music on the Napster network is not stored on a central computer but on the computers of more than 40 million users.” Another Bertelsmann spokesperson added that users who swapped Nazi music were in violation of Napster rules and could be excluded from using the network, but exclusion would require that the user be detected. Users can remain undetected due to the anonymity on the Web.
Italy made the most recent Internet-content ruling on Jan. 10, finding that foreign Web sites that violate Italian law may be shut down. The Italian case involved defamation claims filed by a Jewish man against a foreign Web site that accused the man of violating Jewish law. The court ruled that it had jurisdiction to shut down the Web site because it was accessible to users in Italy. The court, however, did not specify how it would or could enforce its order.
It is questionable whether other nations can restrict content providers in the United States. Although European nations may wish to shut down foreign Web sites, they may lack the legal strength or technological means. Generally, under current principles of international law, the court cannot collect a judgment if the defendant has no assets in the forum nation.
Anonymous Internet users who post comments on Internet bulletin boards have theorized that, in the Yahoo! case in France, it may be possible under French corporate law for the judge to seize shares of Yahoo! France to settle the judgment. Yahoo!’s lawyer, however, said that such an action would be unprecedented.
With regard to criminal prosecution, a nation cannot enforce its rulings against a content provider unless the defendant is located within that nation or is subject to extradition. Ulrich Sieber, a professor of law at the University of Wuerzburg in Germany, told The Washington Post that the basic problem with German courts trying to enforce laws against persons located in other nations “is that it’s not enforceable unless someone is stupid enough to holiday in Germany.”
Some say that the rush to judge Internet content should have been anticipated. Paul McMasters of the Freedom Forum in Arlington, Va., said almost all technological innovations, such as radio, television, and now the Internet, have withstood predictions that their arrival signaled the end of the world.
“It’s as if we have a shared gene to fear new technology.” In his view, the only acceptable solution is to “enable customers to customize their access the way they wish, and educating people on the Web.”
Although he does not necessarily endorse filtering software, given its inaccuracy, McMasters hopes people learn to use the Internet wisely and without fear. “It’s the only way to make sure the World Wide Web lives up to its potential as a medium for communication, empowerment and democratization.”
Other commentators are concerned censorship will expand to other areas. For example, Israelis have objected to pro-Palestinian Web sites, arguing the sites are offensive and full of lies. Free speech advocates fear Internet content regulation will result in bans on all political or religious beliefs because some group will consider another’s views offensive.
Not all commentators agree, however. Even in the United States, Internet regulation is a hot topic.
The first federal attempt to limit Internet content was the Communications Decency Act of 1996. The CDA imposed criminal penalties on Internet service providers that allowed minors to access “indecent” material. The U.S. Supreme Court struck down the law in June 1997 in ACLU v. Reno. The Court ruled that the CDA was vague and overbroad because it attempted to regulate “indecent” speech, which is constitutionally protected, as well as “obscenity,” which is not.
In 1998, Congress passed the Child Online Protection Act, which was similar to the CDA. The enforcement of COPA has since been halted by a federal court.
Most recently, Congress passed a bill requiring all libraries and schools that receive federal funding for computers to install filtering software to prevent access to objectionable material. The American Civil Liberties Union has stated that it will challenge that law in federal court.
Sen. John Kyl (R-Ariz.) has been trying to ban Internet gambling as he believes it poses “tremendous potential for abuse, addiction and access by minors.” However, such measures have not yet been successful.
Individual states also have attempted to regulate Internet content, but such laws have been consistently stricken as unconstitutional.
Despite the failure of most efforts to regulate the Internet in the United States, and despite the inability of the world’s nations to agree on what content is appropriate, consumer advocate Ralph Nader has proposed the creation of the World Consumer Protection Organization, which would control Internet content, at least to some degree. Speaking at the National Press Club in Washington, D.C., Nader suggested that the WCPO would deal with issues such as privacy, e-commerce, intellectual property and antitrust.
Nader did not explain exactly how the WCPO would deal with the conflicting laws in the various nations, except to say that the organization would be “democratically run.”
James Love, director of the Nader-founded Consumer Project on Technology in Washington, D.C., supported Nader’s proposal, arguing that one global organization to deal with consumer protection on the Internet was better than thousands of local or national laws.
“If we don’t want to just give up on a government role in consumer protection for e-commerce, we have to think about how we can coordinate or set global norms. It isn’t easy, and it isn’t without risks, of course. But the alternative is privatization of governance, and giving up on the idea of democratic institutions having any practical role in the new economy,” Love said.
Although one global rule would be more simple, there are notable differences among the laws of the nations that would likely prevent agreement regarding permissible content.
For example, European nations recognize “moral rights,” the belief that an artist’s work must remain unmodified by others. The United States does not recognize moral rights. Thus, the colorization of black and white films may be legal in the United States, while it is objectionable under European law. Once broadband technology advances and richer content becomes readily available on the Internet from any nation, there will surely be disputes as to which set of laws controls.
It will be important for nations to consider the implications of the precedent they set in trying to control Internet content. Alan Davidson, of the Center for Democracy and Technology in Washington, D.C., spoke to The Washington Post about the restrictive European court rulings. Davidson said, “the issue is how will the German government respond if the governments of Saudi Arabia or Singapore or China seek to impose their very restrictive laws on a German publisher? What if China wants to prosecute a German publisher for putting a human rights report on the Internet? I cannot imagine the German people want their free speech limited in that way.” Allowing any nation to eliminate certain content from the Internet by decree will leave only the most innocuous and least helpful information remaining.
Davidson has addressed the issue of how foreign nations should deal with objectionable content on the Internet. He said that nations should punish their own citizens who access the illegal material from their country rather than trying to punish those who create the content outside of their jurisdiction.
Another proposed solution is to apply the existing laws for the bricks-and-mortar world without creating additional laws for the Internet. That proposal, however, still leaves nations with the dilemma of determining when they have jurisdiction over a defendant and when they are without recourse. The French court essentially attempted to apply its existing law against hate speech to Yahoo!, but the Internet raises difficult questions of jurisdiction because of its borderless nature.
World leaders are currently negotiating a treaty through The Hague Convention on Jurisdiction and the Recognition and Enforcement of Foreign Civil Judgments to address the issue of international jurisdiction. At this time, it is unclear whether the treaty will specifically address the issue of jurisdiction for Internet-related lawsuits.
As McMasters noted, “no matter what they say or utilize, any attempt to regulate content has to have some impact on speakers outside (their nation). It’s rather naive to suggest that a nation that imposes technological barriers to expression getting in or getting out isn’t having an international impact. The recent court decisions in France, Germany and Italy are just more bold assertions over other people’s speech.”