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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.
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.
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)
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.
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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!
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.
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...
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