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?"

They do. Re:Radio?

[func]

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?

law article

[queequeg1]

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 [osbar.org]

Re:Radio?

[st0rmshad0w]

For example, lets say you have a legally licensed broadcast medium in country A (say a radio station or satelite Tv setup). Your broadcast location is close to neighboring country B, who have a much more strict legal system and what is legal to broadcast in your location is not legal in theirs. HOWEVER, if citizens of nation B decide to tune their radios or switch their channels to your broadcast frequency (read: type URL xxx.xxx.xxx or click a certain link) then how can the legal establishment of country B claim jurisdiction over your content, broadcast from country A. Perhaps by treaty, or some other arrangement, but not otherwise. Country B may take steps to limit its citizens from receiving your content, which should be well within their right to do, but they should not be allowed to dictate the legality of content legally broadcast from other sovereign nations. Would you honestly enjoy a spin through the legal machine of a Taliman style government because photos of your family vacation at the beach are illegal to view in Afghanistan, for example? Remember that the internet is largely everyone's personal tv/radio station, with essentially a global reach.

There was that Demon/DeCSS thing a while ago...

[Anonymous Coward]

Mad Jack Valenti thought American laws applied everywhere and, worryingly, Demon (an old and supposedly wise UK ISP) took his word for it until someone jogged their memories on primary school geography.

NTK summarised [ntk.net] it and Cryptome had it here. [cryptome.org]

Amateur Action BBS case established venue, 1994

[CatherineCornelius]

The Amateur Action BBS case (1994, confirmed on appeal 1996) established in the Federal jurisdiction that the community standards of the recipient's physical locale apply for the purpose of obscenity law whether transmission is electronic or otherwise (18USC 1465).

http://www.soci.niu.edu/~cudigest/aabbs/aabbs.html

Re:Broadcast mediums and other countries?

[markmoss]

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.

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, ...) But in those cases, it was hardly possible for the target countries to get the broadcasters into their courts.

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.

I did kinda...

[meggito]

I put up some controversial material and I soon got a message stating that my website was a little to similar to another (that I had never been to). Someone threatened to file suit and such, but I am fairly sure (almost positive) it was because they disapproved of the content (as I would if I saw it now) rather than because of any website similarities. I wouldn't be surprised if their website was not made to look like mine (they were just a little too similar).

Jurisdiction Issues

[wpriii]

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.

Hauge Convention != WIPO Copyright Treaty

[3247]

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.)

Re:Radio?

[maetenloch]

I believe the legal reasoning goes something like this: Because DirecTV is not licensed by the Canadian government to broadcast within Canada, they cannot sell their services there even though it's possible to receive their signals. Since no Canadian can legally purchase DirecTV and these signals are 'unauthorized', it's not a crime (or at least not a crime that the courts will take action over) to decrypt them on your own. However if you hack a domestically available satellite service, you will be busted by the Canadian authorities.

Re:Some opinions

[InsaneGeek]

I'm sorry, but you and most of the rest of the Slashdot crowd don't seem to quite *get* the Sklyarov thing.

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&threshol d=0&commentsort=0&mode=thread&pid=2748291#2748372

Re:Radio?

[TekPolitik]

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.

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.