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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?"
If they can't do anything about broadcast radio propaganda etc, why should they be able to claim jurisdiction over web traffic? The parallels are pretty close.
If I put a BillBoard up on Canadian Soil bashing an American company can they sue me in America , (where as on the web it can be seen from) NO !
Its crap, If I shout slanders from France to Germany say can I be sued in Germany NO,
If I dance Naked in ??? and you can see me from ??? (Alright bad example as you would most certainly be blind at that point) and its legal to dance naked where I am , can I be sued for indecent exposure where you are ?
I tell you this I some worthless Aussie tried to sue me here I go over there and show the boy what "Down Under" really means.........
Sig went tro...aahemmm.....fishing........
If you use the (admittedly stretched) analogy of the internet as a broadcast medium, then you should be able to look at how current laws governing radio and television broadcasts are handled.
What are the laws like covering broadcasts and how are they enforced? With the right medium (satellite, etc.) you should be able to reach many parts of the world where various broadcasts are deemed illegal. For example, pornography and some countries in the Middle East. How are these handled? I would have thought political broadcasts by one country might be deemed illegal in other countries with differing views.
With WIPO and others creating interlocking treaties to enforce "intellectual property rights" across national borders, our own 1st Amendment rights may be increasingly threatened.
Things that we'd regard as valid speech may offend other governments or piss off multinational corporations -- I just hope they won't gain the leverage to suppress them across borders. Certainly in areas connected to copyrighted, trademarked and patented material, the big corporations are trying to gain global power to suppress speech they don't like.
just remember, if someone violates the laws of another country from their country, the offended country must extradite them in order to prosecute. a lot of times there is too much red tape to make this worthwhile. especially for something as trivial as a web page.
I would be more afraid of the opposite, like encryption developers from, say, Norway, Australia, Russia or Finland, being applied doses of whoop-ass called DMCA (or perhaps even the far-reaching 'terrorism' laws mr. Asscrotch created)
Absolutely. If I hear a broadcast from Iran, or any one of the countries that have told the ITF (I think that's the acronym, can't remember right now) that their citizens are not allowed to talk on my ham radio, I'm legally required to not listen to it. I guess I'm supposed to plug my ears, or pull the radio plug out of the wall as soon as I hear a callsign from one of the blacklisted countries. Pretty silly, no?
this is slightly off-topic (mod away), but i note the assumption that non-US laws are inherently more restrictive than US laws. this is increasingly not the case. note DMCA and USA-Patriot, among others, and recent high-profile cases of foreign nationals being arested in the U.S. for breaking such laws.
mind you, i think your assumption was true a decade ago, and i'd like to see it be true again...
i speak for myself and those who like what i say.
This should read "as it opens up anyone publishing anything on a web-site (and also Usenet) to the more restrictive domestic laws of America". See DMCA for example (USA only).
Sigh. Why do so many Americans just blindly assume everyone else is behind. Yes, there are countries for which this is true. But there are also many for which the reverse is true.
So, to be more specific you could kill the "in America" in the sentence above and would even be more true: Also web pages on other countries could be subjected to more restrictive laws in again other countries.
Right? Yeah, I'll stop nitpicking now.
Home Page
Check out the following article from the Oregon State bar bulletin. Although it addresses jurisdiction mostly from an intellectual property perspective, many of of the cited cases touch upon the more amorphous concepts involved.
Personal Jurisdiction in the Silicon Forest
In using my website, you agree to be bound by the laws of the United States and that you agree to accept any responsibility for any violations of local laws or treaties that using my website may cause. Further, you agree that you will hold the grantor of this license free from any responsibility should you find the material licensed to you to be libelous or in any other way offensive.
This EULA is not transferable.
Blah, blah, blah....
Oh and by the way, IANAL.
If this were easy, they wouldn't need us to do it!
I realize this may seem extreme/rude/harsh to some... however, nobody can forecast the laws that another country may decide to introduce. The web is open and free, and to be of any use it must continue to remain so. Like radio or telivision... if you don't like it, change the channel.
Mmmmmmm. Floor pie!
No, the relig. fundamentalists don't like bodies mentioned, let alone HEAD!!! Might excite the masses.
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.
It seems to me that it is an action carried out by the person doing the surfing. Much like an American going to Canada and trying to come back across with Cuban cigars. Is it the fault of the guy trying to smuggle in the goods, or of the Candadian government for allowing its own citizens and and visitors to buy the cigars?
Not that I favor net censorship. Yes, there is some nasty stuff out there. But you don't have to surf to it. You don't have to expose yourself to it. If you do so and get offended, who's responsiblity is it? Yours. Not the governments, not the person who put up the website. It's not like a billboard, where you will see it if you look in a general direction.
Yes, searches sometimes turn up (possibly) objectionable results, but that just means the searcher needs to learn how to refine searches.
Education, not restrictions.
-- If god wanted me to have a sig, he'd have given me a sense of humor.
http://www.soci.niu.edu/~cudigest/aabbs/aabbs.html
Twoflower
--
Twoflower
One of the noblest moments in human history was when settlers in the new America rose up to assert and defend their independence from the religious oppression that was endemic throughout Europe.
We now face a similar threat to freedom, with governments around the world asserting power to stifle free speech originating from other countries.
However, this time, guns simply won't work.
The call to arms that I espouse is for all internet users to adopt the weapons of anonymity and encryption.
For the sake of basic online human rights, I call on all netizens to familiarise themselves with all anonymising technologies, and for all people with development skills to create and improve such technologies.
One basic weapon is the anonymising proxy server. This allows people to use the web to publish opinions that cannot be traced to them personally (assuming of course the operator of the proxy server don't keep logs and make them available to various authorities worldwide).
But an even more potent weapon is the Free Network project at www.freenetproject.org. Freenet provides technology that allows freesites (similar to websites) to be published. The advantage of freesites is that they can't be traced to their author, since they are distributed at several points around the network. In fact, any attempt to locate the source of the information, or delete it, results in such information proliferating further around the net.
However, Freenet is just a taste of things to come. There's a whole new generation of stealth technologies emerging which will wrest the power of the internet out of the hands of governments and restore it to the common citizen. One such technology is the Invisible Internet Project (formerly called Invisible IRC Proxy), which will provide secure IP-level tunnelling, anonymising and encryption features.
People, please don't take these threats to your freedom lying down. If enough of us start using these new liberating technologies, we'll be too large a market for ISPs and governments to block us.
-- In the beginning was the WORD, and the WORD was UNSIGNED, and the main(){} was without form and void...
Suppose a kid, let's call him Jon, is sitting in a country, let's say Norway, and writes software that does something that pisses off somebody else, let's say the Motion Picture Association of America, because it does something like, oh, decrypts the content scrambling system on DVDs.
Now let's say this is perfectly legal in Norway but not in the MPAA's country, let's call it America.
Does this enable the MPAA to sue poor Jon for breaking a law that does not apply where he lives?
Of course, maybe this has no point because of course it is purely hypothetical, as I said...
Anyone who solicits advice on legal issues from slashdot is a fool. Do your own research, you'll get better results too.
The area of internet jurisdiction is very complex and often confused. When it comes to defamation, look at a case called Calder v. Jones, 465 US 783. Basically, the court found that California had the jurisdiction to hale Floridians into Cal because their defamation against Shirley Jones was an intentional act, that was aimed at California and they knew their comments were likely to cause harm in California. Several courts have applied Calder to the Internet, where the "effects" of the defamation is where the jurisdiction can also be found.
America may well have the DMCA and the USA-Patriot Act, but it also has the ACLU, Alan Dershowitz, Johnny Cochrane, etc., etc.
In other words, we may have restrictive laws, but we also have a bunch of chiselers out to finess them.
Contract this with countries that
- like the former USSR, have great Constitutions in the abstract, and secret police to liquidate you if you attempt to exercise any "right" you may have.
- don't have Constitutions at all, just the will of the assorted ruling gerontocracies.
- have Constitutions, and strict laws derived therefrom, but with noting like the counter-balancing provided by, say, the ACLU
Things are strange right now in the U.S. There's change happening based on technology and terrorism and at such times over-reactions will occur. I have no doubt that things will free up in the next decade.
668: Neighbour of the Beast
The Hauge Convention is not the WIPO Copyright Treaty.
The WIPO Copyright Treaty is the next step in a series of international IP treatys, besides a lot of sane stuff it also includes the no circumvention devices clause. I'm not sure whether the DMCA implements the WIPO CT in the US or the WIPO CT was influenced by the DMCA (or drafts thereof).
The Hague Conventions makes cross-border litigation easier. That is, for example, if someone sends you a mail bomb from abroad, you can sue him in your country, which is actually a good idea. The only problem is with broadcast mediums such as Internet: Here it means that you can be sued everywhere where your posted stuff can be received. (Please note that many countries already have bilateral treaties like the HC, including the US and most of Europe. It's only that the majority people don't make use of it even if it was possible.)
Claus
I'm sorry, but you and most of the rest of the Slashdot crowd don't seem to quite *get* the Sklyarov thing.
l d=0&commentsort=0&mode=thread&pid=2748291#2748372
Elcomsoft's servers were located *in* the US, so they are under US law. Software was purchased & downloaded from servers located in the US, even though Elcomsoft is located in Russia. By doing business in the US they are bound by US laws, if they would have just kept their servers in Russia there wouldn't be an issue at all (other than Adobe trying to get Russia to do something). He would not have been arrested when he came to the US, because he as trademark (or copyright I can't remember which) would have been doing all transactions outside of the US. So it's more of an issue that you should know the laws of the country you are hosting your website physically at.
Check out my post in the last Sklyarov thread http://slashdot.org/comments.pl?sid=25273&thresho
A MiniHowTo on Pleasing Malaysia Court -
1. Get A Lot Of Money.
2. Donate The Money To The Prime Minister Of Malaysia, or, Give A Sizeable Chunk Of Your Company (in terms of shares / ownership) to One Or More Sons Of The Prime Minister. In Other Words, Bribe The Guy, Or Bribe His Family.
3. Get To Know The Judges - who are appointed by the Prime Minister - through the Prime Minister himeself.
4. Before You File A Defamation Suit, Tell The Prime Minister About It. Make Sure That The Judges *Are* Informed Of Your Up And Coming Suit.
5. From Then Onwards, Everything Is Arranged For You. You Can Ask For Whatever Amount. You Victory Is Guaranteed Even If YOur Evidence Is Extra-Ordinarily Flimsy.
6. If You Can't Collect The Judgement - If The Losing Side Don't Have The Money - You Can Sue Again, And Make Those Bastards Pay For "Defaming You". The Court System Of Malaysia Will Throw Your Enemies Into Jail, Because No Justice In Malaysia Will Dare To Make The "Friends Of Prime Minister" Look Bad.
End Of MiniHowTo
Muchas Gracias, Señor Edward Snowden !