Sunday, 18 March 2012

See me, sue me?

When the internet swam into our vision (in my case in 1993), one of the first questions was whether putting up online content that is legal in one country risks exposure to the laws and enforcement of some other country in which the content might be illegal. 

That has happened.  The 1995 CompuServe raid, following which local German country manager Felix Somm was prosecuted and eventually acquitted on appeal, was an early example.  Others followed, such as the 2000 French litigation against Yahoo! Inc. and ultimately unsuccessful criminal prosecution of its then CEO Timothy Koogle, both over Nazi memorabilia on its US auction sites. 

Fast forward to today and we still have to ask the question.  Every so often someone in authority feels the urge to put on blinkers, engage tunnel vision and, casting the internet as chief villain, decide to view the rest of the world as an offshore haven that exists for the sole purpose of subverting his home laws.  This even happens at policy level.  EU and US authorities have both gained deserved reputations for trying to forcefeed other countries, and each other, with their pet legislative agendas.    

In the UK you could argue that we asked for it.  Our libel courts willingly adopted the startlingly parochial doctrine, first espoused in the Australian case of Gutnick v Dow Jones, that any website in the world that can be read and comprehended in the UK is published here.   Asserting our libel laws against the rest of the world on the basis of minimal UK publication provoked the US to pass the SPEECH Act, preceded by New York’s Libel Terrorism Prevention Act.

So is it any surprise if US authorities feel little compunction in trying to enforce their criminal copyright laws against UK-operated websites – even though in common with the USA we have one of the strongest sets of intellectual property laws in the world?  But in this jurisdictional race it is not judges and prosecutors but the everyday citizen who ends up in metaphorical or even real shackles.

Blinkers and tunnel vision come at a cost, most concretely the injustice suffered by unfortunate individuals who fall foul of overzealous local law enforcers in other countries.  The obvious defence is to build firewalls, cutting off the rest of the world from your content.  Even if that were possible it is the worst outcome, inhibiting every kind of discourse across borders.  The geolocation firewall does not discriminate.   

For the first time, thanks to the internet, the promise of Article 19 of the 1948 Universal Declaration of Human Rights – “to seek, receive and impart information and ideas through any media and regardless of frontiers" – has been made good.  That is to be treasured and protected, not destroyed by building walls in cyberspace.

But won’t the least restrictive jurisdictions win out and, in practice, export their values to every other country?  Won’t everyone set themselves up in the country with the fewest laws? 

Some may, and if they do it in order to evade the laws of a particular country, then it may be no surprise if that country’s legal system tries to do something about them.  But even then there is a case for restraint if, as is often the case, the suggested cure is worse than the complaint.  And within Europe, the ECommerce Directive recognises that it is more important to encourage online trade between EU states than to allow member states to enforce many types of national law against websites based in other EU countries.

But the essence of the internet is individual speech and publication.  The hundreds of millions of people who blog and tweet and contribute to discussion forums and set up innovative little websites are not about to migrate en masse to some exotic content haven.  They will stay exactly where they are in their student attics and their homes, with their schools and jobs and families and operate under their local laws.   That is exactly what they should reasonably expect to be able to do, without the fear of the police coming knocking on their door at the behest of some foreign government, and without the fear of being sued because someone somewhere else in the world can see a website that they think contravenes their own country's local law.

So does that mean that people in one country should, if they choose, be able to access material from other countries that might be unlawful at home?  Certainly.  That is the world created by the internet, there is no going back and the sooner governments recognise it the sooner we can bring some sense to all this. 

The important word is ‘choose’.  We can value the ability to choose; or every country can attempt forcibly to export its laws to every other country, resulting in a chaos of conflicting jurisdictions and perceived injustices.  It is one thing for people to have access to a choice of material created under different sets of laws.  It is quite another to extend state power across borders in an attempt to coerce people into complying with every other country’s content laws.

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