Rather a long time ago, we bravely argued that nations did indeed have the right to regulate Web content according to their own laws, whether Yahoo liked it or not. The portal juggernaut had been hauled before French courts for permitting the sale of Nazi “memorabilia” on its auction site. In effect, we advanced a cake-and-eat-it-too argument, stating that if, say, Yahoo desired protection under the copyright laws of France, it must also submit to other French laws.
Now, such laws are probably always going to be asinine and will absolutely always be unenforceable, but to the extent that they can be enforced, they should, and if you’re stuck complying with the law, then that’s what you’re stuck doing.
Meanwhile, Carolyn Penfold writes a lengthy discussion of the Yahoo case and a conceptually related Australian law governing Internet content. Her article ends abruptly with no particular conclusion (no guts, no glory, Carolyn), but offers a few useful points.
This finding against Yahoo France itself raises broader questions. As Yahoo France and Yahoo Inc. (U.S.) are separate entities, carrying on independent businesses although with a shared name, on what basis could the former be required to warn about material on the latter? Would the decision have been the same for any Internet search engine and any Internet portal which provided users in France with links to the Yahoo Inc. (U.S.) site, or did the name “Yahoo” give Yahoo France an apparent connection which led to greater responsibility? These issues were not specifically discussed in the Court’s judgment, but it appears that the Court’s concern was the link which enabled users of Yahoo France to directly access Yahoo Inc. (U.S.), rather than any business connection between the two defendants.
It happened in this case that Yahoo Inc. (U.S.) and Yahoo France were both before the Court as defendants, but it appears, although it is not stated, that any portal or site providing direct links to a site such as Yahoo Inc. (U.S.) would be in the same position as Yahoo France. Presumably then, search engines which find and display links to sites such as Yahoo Inc. would be in the same position, as once their search results are displayed the links available are equivalent to those on portals such as Yahoo France. This was not, however, discussed by the Court.
The most widely accepted basis for the exercise of criminal jurisdiction is territoriality, but states may also assert jurisdiction, as in this case, where the effects of the alleged criminal act are felt within the territory, although the commission of the offence occurs elsewhere. However, while a court may assert criminal jurisdiction, unless a defendant comes into or voluntarily submits to the jurisdiction, an extradition agreement would be required to bring the defendant into the jurisdiction for trial or punishment. Even where such agreements exist, extradition is commonly only allowed where the activity giving rise to the charge is illegal in both states. Generally then the reach of a nation’s criminal law in relation to Internet content provided, hosted or transmitted by those outside its territory, will be minimal. As a result, some states are now attempting to negotiate agreements regarding the establishment of uniform Internet content related criminal offences, to make prosecution for specified activities easier at least in signatory states. [...]
[I]t may be impossible to reach any useful level of agreement... when various nations wish to censor or regulate such different aspects of Internet content. For example, “what constitutes ‘political speech’ in the United States (Nazi speech) is banned in Germany; what constitutes ‘obscene speech’ in Tennessee is permitted in Holland; …what is harmful to minors in Bavaria is Disney in New York.”
Some nations may be willing at least to identify matters of common ground and work toward agreements on those. [...] However, even nations with seemingly similar views on censorship may disagree on the detail, and agreements are likely therefore only to cover the less controversial aspects of content regulation. [...] With various nations taking such broadly varying views on what censorship or regulation is desirable, it seems almost impossible that any global agreement could be made, and with the global nature of the Internet, non-global agreements may be of little assistance.
In fact, attempts by individual nations or even groups of nations to control Internet content may only lead to material being moved, and hosted in less restrictive jurisdictions. Nations wishing for greater censorship or regulation could block material originating in such jurisdictions, but if such jurisdictions included, for example, the United States, it is unlikely that any Western nation would be willing to entirely block content hosted there.
There is no reason in principle that individual nations should not attempt to regulate internet content. Every other industry is subject to some regulation, both in their home country and in the countries in which they do business. No one would suggest that Toyota cars built in Japan but sold in Australia should not be subject to Australian safety laws because Toyota is a Japanese company.... On the other hand, however, no one would expect Toyota to meet Australian safety standards just in case one of their cars came into Australia.... The French court accepted that Yahoo’s auction site was not principally directed at French Web-surfers, but found also that Yahoo was aware that French surfers were accessing the site “because upon making a connection to its auctions site from a terminal located in France, it responds by transmitting advertising banners written in the French language.” This may suggest that Yahoo’s awareness of French surfers placed upon it a greater responsibility to comply with French law.
National content laws, then, are almost entirely futile but are quite entirely within various nations’ rights. Such laws are symbols of national intent rather than promises of international enforcement. A small conundrum, hardly worth very much sturm und drang.
Posted on 2001-09-01