The Borderless Internet And Jurisdictional Disputes: A Growing Problem
from the different-laws,-different-places dept
For many, many, many years, we've discussed how the fact that the internet easily reaches anywhere, despite different laws in different places, makes for some really screwed up legal situations, and little has been done to address this over the years. We recently wrote about a troubling decision in Belgium, whereby a Belgian court seemed to think that Yahoo -- despite no presence in Belgium -- needed to comply with Belgian laws. And, we're seeing similar situations again and again and again. Two new examples...First, we already wrote about how London's National Portrait Gallery was threatening someone in the US for copying photos of public domain paintings from the Gallery's website and putting them on Wikimedia's servers. The problem is that this is entirely legal in the US, and the guy was in the US, the computer he used was in the US, and Wikimedia's servers are in the US. But the threat of a lawsuit is in the UK. Luckily, the EFF has taken on the case and is trying to stress this point:
It's quite clear under U.S. law that Mr. Coetzee did nothing wrong -- as far as U.S. law is concerned, the photos are not copyrightable, the NPG website's "browsewrap" contract is unenforceable, there is no "database right," and using Zoomify on public domain images doesn't get you a DMCA claim. It's also clear that everything he's alleged to have done took place on his computer and Wikipedia's computers, none of which are in the UK.In a separate case involving people in the US and a lawsuit in the UK, Mike Arrington, who runs TechCrunch, was recently sued for libel in the UK. The standards for proving libel in the UK are significantly lower than in the US, and considering that TechCrunch is a US site, based in the US on US servers, Arrington (reasonably) felt that responding to the lawsuit itself made little practical sense. Even if he could have won the case (and from the details, the case seems patently ridiculous, more a case of sour grapes than anything else), it would have been way too costly to defend. So he refused to respond... leading to the inevitable summary judgment (which is what happens by default when the other side doesn't appear). This is a bad result for everyone, as it means Arrignton can no longer travel to the UK (and, in fact, canceled planned travel there), for no good reason at all, other than not wanting to spend an incredible sum of money to defend himself in a country he doesn't live in or operate in. It's hard to see what's reasonable or fair about that at all.
In the offline world, that would certainly be the end of the matter. If Mr. Coetzee had flown to London, purchased posters of the same paintings at the museum store, brought them home, and started making copies for his friends, it's clear he would be well within his rights in doing so.
Why should the answer be different simply because he posted the photos to Wikipedia? NPG seems to think that UK law should apply everywhere on the Internet. If that's right, then the same could be said for other, more restrictive copyright laws, as well (see, e.g., Mexico's copyright term of life of the author plus 100 years and France's copyright over fashion designs). That would leave the online world at the mercy of the worst that foreign copyright laws have to offer, an outcome no U.S. court has ever endorsed.
Issues like these have been going on for many, many years, and at some point this is going to need to be addressed. You can't have a situation where the lowest common denominator of laws applies across the board in every country. And you can't have a situation where people would have to bankrupt themselves to defend themselves in a foreign country. It still seems like the most reasonable solution is to default such lawsuits to the country where the action has actually taken place and/or where the servers reside. Now, some might say that you can place the servers elsewhere, but for such situations you could just default to where the person resides.
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Filed Under: jurisdiction, libel, mike arrington, sam sethi, uk, us
Companies: eff
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What many web people forget is that although your servers are in one jurisdiction, the reality is that you are distributed everywhere. So in many cases, the lowest level jurisdiction is where you might end up being judged. It's no different from forum shopping certain cases in the US, trying to find a friendly jurisdiction to try a case. After all, the laws are different state to state as well.
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If you are not physically present in a place when an action that is illegal in that place, you CANNOT be held accountable.
It's haughtilly laughable to presume otherwise.
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What people have to realise is that the internet is truly a world-wide medium, and hiding behind national boundaries will not help. Instead, being more circumspect in what you 'publish' is the only way to go.
While I sympathise to a degree with Mr Arrington's plight, if he had either checked himself first, or made an effort to defend himself then this wouldn't have happened.
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That's right. Take, for example, Saudi Arabia where it is illegal to publish Christian bibles. People in other countries have been publishing such material to the internet anyway, "hiding behind national boundaries". I think extraditing a few of them and then broadcasting their subsequent beheadings just might put a stop to that.
[/sarcasm]
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Mr Arrington is not being extradited - but if he goes to the UK he could well be arrested for non-payment of damages, so he'll have to avoid the country for the foreseeable future. Similarly, if one of the known bible publishers decided to take a holiday in Saudi, who knows what the repercussions might be?
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Didn't say he was either. What were you saying about "reading comprehension"?
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> is truly a world-wide medium, and hiding
> behind national boundaries will not help.
Actually, yes it will. I live in the USA and am an American citizen. What I say is protected by the 1st Amendment to the Constitution. I don't give up that right and become subject to criminal prosecution in a country like China or Iran, which doesn't recognize *any* freedom of expression just because someone can pull up my internet site in those jurisdictions.
If China or Iran or North Korea or Syria tried to extradite me to face criminal prosecution for exercising my right to free speech which is fully protected in the USA, the United States government would be legally prohibited from enforcing that extradition request or doing anything which would facilitate that prosecution, and in fact would be required to be an advocate on my behalf in opposing such proceedings.
So yes, "hiding behind" national boundaries (if you want to call exercising one's guaranteed freedoms hiding) very much is an effective strategy.
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It's haughtilly laughable to presume otherwise.
No, unfortunately it's naive to believe that you can't.
The British are currently in the process of extraditing one of their own citizens to the US to face criminal prosecution for internet computer crimes. http://www.pcworld.com/businesscenter/article/169403/british_court_allows_hacker_to_be_extradited_to _us.html
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Umm... No, the US computer extended it's presence to the UK, where the alleged crime took place.
You cannot say the crime took place elsewhere.
Umm... I just did. Strike two, you wanna try for three?
Not the same thing at all.
Strike three, and she's outta there, folks!
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It isn't his job to police the people of other countries.
If the British gov't doesn't like what people can access on the Internet from outside of their jurisdiction, then maybe they should just block the internet at their borders. Nothing in or out. Then they can have their own little British-only internet that works just the way they want.
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Applies to Belgium to.
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Of course if ACTA goes through, that may not be the case anymore...
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Borderless Internet
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And let's put it in Iran!
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Transparency
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Now, Amazon has to physically deliver their goods to whoever, so that's a different matter. But not if you're just reading books online.
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Come to find out, the magistrate is the Director of Marketing's Uncle.
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The argument there is that the crime was committed in the UK, but the 'damage' was felt in the US. Therefore, the US argues, the trial should be held where the damage was felt.
This matches up with the UK argument here, though I can't help but feel if a US hacker was accused of hacking the Chinese government (or really any other country) there would be zero chance of that person being extradited.
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The extradition agreement between the US and UK is indeed lopsided in that it is more difficult to extradite a US citizen to the UK than vice versa.
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NPG: a US citizen connected to a computer in the UK and broke UK laws. He is very unlikely to be brought to the UK for his crime.
Gary McKinnon: a UK citizen connected to a computer in the US and broke US laws. He is off to the US to face trial.
I know that there is a difference in that if the NPG was based in the US it would be legal, but if Gary had hacked into UK computers it would still have been against the law but I don't think this matters - in both cases US laws are trying to be applied which is inconsistent.
To me, if the person specifically targetted an action to a certain country then they should be beholden to the laws of that country regardless of your home laws.
Lets say you lived in a country where shooting people if they wore green was allowed. You stand in your own country and start shooting at filthy green-wearers across the border in a different country. You're not committing a crime in your own country but you're targetting another country where it is against the law and so you can likely expect to hear from the authorities about extradition.
Similarly the NPG guy (forgot his name) specifically targetting the NPG site, and so his actions there should come under UK law (and similarly Gary by default should go to the US - although I hope they do consider his mental health condition).
The TechCrunch thing I'm not aware of but I'd be suprised if he was targetting the UK specifically. It's upsetting that he is now essentially denied access to the UK over it, but if he can find somewhere neutral perhaps he can meet up with Cat "Yusuf" Stevens for a chat? (and yes I'm aware that since being banned from entering the US Yusuf has been allowed back in)
Taking the Iranian Bible publishing point - I'm not suggesting that because Iran doesn't allow it, nobody should be allowed to publish them online. But you have to acknowledge that if you stand up and promote something that goes against another country's laws you can't expect to feel welcome there (see UK citizen David Irving and his arrest in Austria for denying the Holocaust while in the UK)
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Does anyone recall the US's prosecution of Noriega?
How about Spain's of the Argentina military officers?
Or Netherlands' prosecution of Africans?
No differences. Same thing application of foreign law to citizens of a different country.
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If soybean oil comes fro squeezing soybeans, and olive oil comes from squeezing olives, then where does baby oil come from?
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U.S. District Court Judge William Hoeveler upheld the government's right to prosecute Panama's military ruler, Gen. Manuel Antonio Noriega, on charges that he turned Panama into a way station for cocaine traffickers.
Cavallo was a mass-murderer:
Mexico's landmark decision to extradite former Argentine Navy Captain Ricardo Miguel Cavallo to Spain, where he faces charges of genocide and terrorism, reinforces the potential power of international law to end impunity around the world.
Couldn't find anything about the Netherlands thing. There are some differences here, though. Noriega was moving drugs INTO the US and other countries; therefore he's subject to US law. Cavallo committed a crime against humanity; therefore he's subject to international law.
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International waters
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Re: International waters
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Prohibited Speech?
How about if it was said in a telephone conversation between the two countries instead? Now the telephone is nothing new, so I really would have expected there to be some kind of precedence in that area.
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Don't encourage them
The EU has already enacted laws to enable member states to prosecute citizens of other member states for things which may be illegal in the accusing state but not in the state where the person resides. Furthermore it seems that the accused does not even need to have set foot in that state for this to apply. Remember that the EU is a collection of independent sovereign states, not a federation.
If the internet becomes subject to the law of particular states, it logically becomes subject to the law of all states with access to the internet, much of this law is contradictory. That alone shows why this should not be.
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