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?"

Radio?

[st0rmshad0w]

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.

IP treaties may threaten our free speech in USA

[Artifice_Eternity]

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.

DMCA?

[Anonymous Coward]

publishing anything on a web-site (and also Usenet) in America to the more restrictive domestic laws of other countries

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)

content control

[Anonymous Coward]

Any foriegn service provider that allows access to american networks should be responsible.

You've got it the wrong way round.

[Jens]

"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"

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.

International law

[Godeke]

The question really hinges upon how international treaties pan out. The DMCA was passed to implement an international treaty for enforcing intellectual property, the Hauge Convention. It is an attempt to make everyone subject to everyone else's laws. Of course that is impossible to implement as simply as that - the standards around the world are too varied to be applied directly to everyone as there would be nothing left legal.

So what will happen? Most likely it will continue as it has for years; corporations and well financed individuals will shop for a juridiction that fits their needs and will prey upon those without similar resources. But more excessive legal claims are obviously impossible; for example, a Chinese government monopistic company claiming that Fortune magazine is slandered them or Iran claiming that FOX must stop broadcasting "impure" TV. However, don't expect the individual website to get such consideration, and don't expect the US not to try to bully it around the other way from time to time...

Re:Non-U.S. laws more restrictive?

[Anonymous Coward]

Depends on the non-US country. The Netherlands, probably no. China, yes.

Oh! But the children!

[gandalf_grey]

This "think of the children" attitude will be the end of all that is good and rightous with the internet. No, something is published on the server. If other countries don't want the content, or think their citizens are not intelligent enough to make their own decisions... then it's up to that country to block access if they so choose (or get off the net entirely).

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.

Re:That is what terms of use is for.

[Beryllium Sphere(tm)]

There's already been a problem within the US. Tennessee used Tennessee state law to prosecute the owners of a porn site in California, on the grounds that since their "content" could be downloaded in Tennessee they were "publishing" it there.

If I were setting up terms of use, I'd ask my lawyer whether they only governed contract disputes. Criminal law could be another kettle of fish. But by now there must be case law to support using "void where prohibited" clauses.

[Note for non-US readers: each state of the US can and does have different laws.]

geolocation is a tool

[reverse flow reactor]

geolocation is a tool, and has not inherent good or evil in it. It can be USED in good or bad ways.

Say I were to use it to differentiate prices: people buying books who are coming from one state pay price $X, people coming from another state pay price $Y. Not because of different shipping costs (which may be equal), but because market research has told me that people from state X are willing to pay me more money for the the product.

Or it can be used to block access to material (iCraveTV) - only people from state X are allowed to see this.

Or it can be used in a good way. Think caching servers. If there is a cache server for a major website in every high usage area so that server response times are faster and overall network traffic is lower. However, a lot of sites do this already (fist page: choose your location server).

What is important is that geolocation is used in a good way, improving the lives of citizens, and not restricting what they can and cannot see/hear/know about when that information may be important to them.

So it can behave like many tools. With this hammer, I can build you a house (good) or hit you on the head (bad). With this international treaty, we can (re)build nations in peace, or we can use it to restrict and isolate a nation that does not see things from the true (read: MY) point of view.

So does anyone have any ideas about a good international treaty that can be used to help citizens of all countries? Maybe an extension to the UN Charter of Human Rights [un.org].

Re:extradition

[2Bits]

just remember, if someone violates the laws of another country from their country, the offended country must extradite them in order to prosecute


No, that only applies to "offended" countries that are strong enough, or have something to leverage. Then the "offending" country may "comply".

A columbian drug dealer who sends drug to the US might be in trouble coz the US government does not like that. A USian traffic weapons (guess where is the source of 50% of world arms trade?) to a poor country is just fine, and in the US, he may be a very respectable business man and a patriot too, as he has contributed to the US economy. And what can the poor country government do, beside being told by the US government to go to hell?

Isn't that like importing banned books on a plane?

[Tenebrious1]

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.

Domain and Country Blocking

[TrentTheThief]

Well, this certainly takes a different spin on things, eh?

This interpretation of "country of publication" should, then, also effect the copyright laws of printed matter as well. So, I open a book in Singapore and it that makes Singapore the country of publication? I don't think so.

This sounds like any number of "We Own The Net" attitudes spawned by a lack of understanding.

The cure for this is to simply beginning access block for the offending countries. In this case, blocking Australia from wholesale chunks of the net would certainly force a new new view of the situation.

After all, that's what those Allow/Deny's are for, right? If you don't want trouble with neighbor's kids, don't let them in your yard ;-)

Works the other way too...

[kinko]

Being from New Zealand, I don't think you can generalise with statements like "restrictive domestic laws of other countries".

U.S. courts claim jurisdiction over many things that occur outside the states, and many US federal laws cover things that occur outside US boundaries - eg illegal to bribe overseas officials, even if you do it from outside U.S. territory.

Here's something to think about. In many western countries, the age of consent is 16. In the Australian territory of Northern Territory, it is (or was) 12. (!!??!) By US definition, this is child pornography.

Also, remember that under the WIPO treaties, large (and not-so-large) US companies have lots of power over companies in other countries regarding trademarks and copyrights, and I would say that these powers are often abused. Of course, this happens for non-US companies too, it's just that there are so many more large US ones. As patents are covered by these treaties, the US seems to be of the opinion "it is good for the US economy if US companies hold many patents that would otherwise go to non-US companies".

I'm not saying what is right or wrong, and I don't want this post to look anti-US, just add a bit of balance. Eg the N.Z. government, under some pressure from U.S. government, is reviewing it's copyright laws to move them into line regarding copyright of digital materials.

So I guess my point is that U.S. laws are being effected in other countries as well. I don't think U.S. yahoo should be subject to French laws, but if they had a French office then a French magistrate could argue that they were operating in France. U.S. judges do this stuff too.

--

radio free europe

[reverse flow reactor]

Remember that while the Berlin Wall was up, that the west attempted to broadcast their radio signals into East Germany. These radio stations told the East German people news of the rest of the world from a different perspective. Their signals were broadcasted from western countries to behind the Iron Curtain, and were considered pirate by the communist governments of the time. Many attempts were Still, many westerners considered that it was the right thing to do at the time and that certain governments were wrong.

The broadcasts persisted, and some might say that they had an important role in the fall of communism.

We must ensure that we do not build up walls of our own that blind us from what is going on outside.

But don't take my word for it. Read [google.com] up on this topic [uky.edu] and figure it out for yourself.

A Call To Arms

[heretic108]

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 [freenetproject.org] at www.freenetproject.org [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.

Not entirely so

[Proaxiom]

Let's pick a purely hypothetical example here.

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...

Balance...

[PHAEDRU5]

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.

America

[Toby Dick]

I am not American, therefore I have different worries: "foreign" laws do not harrass me, but nowadays I never know when or if Americans, like Gestapo in the olden days, fetch me to a court that is not responsive or responsible to anyone, leaving my loved ones wondering where I am. Mind you, I'm not a terrorist, but if an American somehow gets the idea, there is no way I'll be saved from this lawless court. Perhaps I'm doomed after this post? This man can't be anything but a terrorist? What is he hiding? Let's take him in for torture for a couple of months and see what he's been up to!

Re:Radio?

[Anonymous Coward]

If radio waves are not their resources, then why is it bought and sold and licensed and regulated?

Because they buy and sell and license the frequencies for broadcast, not reception. This frequency isn't being 'used up' by a foreign broadcast, they can still sell it to a local broadcaster with a more powerful transmission. Mind you the reception might not be the best...