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Defamation, Free Speech, Jurisdiction and the Net?
An anonymous reader asks: "I'm writing a legal article on jurisdiction and defamation via the web. There seems to be a trend in various national courts (eg the UK, Australia, Malaysia) to treat the place where a web-page is *read* (ie browsed) as the place of publication of its contents, regardless of where the page or the server serving it are located. This has far-reaching ramifications, as it opens up anyone publishing anything on a web-site (and also Usenet)
in America to the more restrictive domestic laws of other countries -- not just for slander/libel/defamation, but also treason, lese-majestie, hate speech and general censorship laws (think Yahoo and France). Does anyone have personal, practical experience of being threatened by foreign governments or government bodies for material put up on the Net? Or is it just an inevitable consequence, to be overcome by geographical tagging of a browser's location (think icravetv.com) or similar measures?"
"Many people assert that informed Netizens see this as a way of fragmenting the Net, of imposing geographic boundaries and destroying part of the fundamental location-agnostic nature of the web and the Net -- ie, that it's a Bad Thing. Is this really so? Does anyone see this as a good, or at least a neutral, thing?"
What are the laws like covering broadcasts and how are they enforced? I think that the laws covering broadcasts across borders are pretty confused at this point. One thing is that most border crossing is accidental -- that is, the intended audience is quite clearly in the same jurisdiction as the broadcast antenna, and it's not the broadcaster's fault that the laws of physics don't allow radio waves to stop cleanly at the border. However, they don't normally travel several thousand miles past the border, while the internet does.
...) But in those cases, it was hardly possible for the target countries to get the broadcasters into their courts.
The other thing is that in hostile situations, it's been fairly common for one country to deliberately beam propaganda to another, in the other country's language. (Lord Hawhaw, Tokyo Rose, Radio Free Europe,
A few years ago I did hear of efforts in the UN to get an international law established concerning broadcasting, which would have given the laws and courts in a recipient country jurisdiction against beamed-in broadcasts. The General Assembly is numerically dominated by tin-pot third world dictators and corrupt politicians; naturally such "leaders" want to be able to outlaw anyone letting the people know how badly they are being scr***d. I'm not sure how far that got. It sounded like some of the liberal-fascists in the Clinton administration were sympathetic. The US couldn't sign on without violating the 1st Amendment, but I'm sure there are government officials that would like to give foreigners the ability to do what they can't... OTOH, the US wouldn't like to give up beaming signals into Cuba, North Korea, Serbia, Afghanistan, or whatever "terrorist" or "genocidal" target du jour.
This story is pretty bogus - the courts have not been saying that defamation is always actionable where it's read. It's only in very specific cases where it can be actionable where read - notably in cases where the plaintiff can show the content was affirmatively directed to places including the place where it was read.
For example, in the Dow Jones case in Australia, they had paying subscribers who had paid by credit card and the service thus had access to reliable information on the country they were delivering to. The Victorian court held that this was analogous to sending the journals by snail mail to Australia.
An appeal in the Dow Jones case is currently pending in the High Court (the ultimate court of appeal in Australia), and may even be overturned to that extent.