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More Crazy Internet Jurisdictional Stuff:

In a kind of reprise of the well-known Yahoo! case (involving a French lawsuit against Yahoo! for displaying Nazi memorabilia on its auction website in violation of French law) from a several years ago, four Google executives are facing criminal charges in an Italian court arising out of a third-party posting of a video at a Google site:

The Italian case relates to a three-minute movie uploaded to Google Video's Italian site in 2006. In the video, four teenagers from the Northern city of Turin are seen teasing a boy with Down syndrome. After Google received two complaints about the content, the company says it removed the clip within 24 hours. But Italian officials, who didn't return calls for this article, argue the video should never have been allowed to be uploaded in the first place.

Google concedes the content caused offense. In a statement the company says: "As we have repeatedly made clear, our hearts go out to the victim and his family. We are pleased that as a result of our cooperation the bullies in the video have been identified and punished."

There's a great deal one can say about this — indeed, one might even say you could write a whole book about it! At one level, it illustrates an interesting and important difference in substantive law: US law, through sec. 230 of the Communications Decency Act (oddly enough), provides intermediaries (like Google here) a very broad immunity from liability for third-party-provided content, while Italian law (I take it, not knowing much about Italian law) does not. It's an important difference, because it reflects (presumably) a real difference of opinion, and of values, and of policy.

The hard question is: how can we realize the benefits of a truly global communications medium like the Net — the first truly global medium we've ever come up with, and whose promise is unimaginably immense — while different sovereigns impose their different visions of the good onto network traffic? We do not have a good answer for that, at the moment. The conventional wisdom here leads to results that are absurd: to summarize (see chapter 11 of the book for more detail): Italy can legitimately assert jurisdiction over Google if Google's conduct is having "significant effects" within Italy, and Google has tangible assets (machines, offices, typewriters, servers) that are located in Italy (or executives who might set foot someday on Italian soil). Viewed from Google's perspective, and the question "With what law does Google have an obligation to comply?", the conventional wisdom says that Google has the obligation to comply with the law of all sovereigns within whose territory it has tangible assets, or where its executives might travel. In my book, I call this "Jurisdictional Whack-a-Mole."

"If you (or your assets) pop up in Singapore, . . . Wham!! Singaporean law can be – can legitimately be – applied to you. Your daughter’s junior high school newsletter, once posted on the Web, is subject to Malaysian, and Mexican, and Latvian law, simultaneously, because it may be having “significant effects” in one (or all) of those countries, and . . . the school’s obligation to comply with those laws is defined by the likelihood that it has assets in any one of them, or that any of its officers might travel to any of them.

That's a strange kind of law – law that only gets revealed to the interacting parties ex post, and which can therefore no longer guide the behavior of those subject to it in any meaningful way.

This is a really hard problem, and it is one that we need to solve. If I had a simple solution that I could summarize in a brief blog posting, I would do so — and I would not have felt the need to write a whole book about it. I'm hoping the book's website becomes a focus for some discussion about all this, because I'm pretty certain that we could use more discussion about it.

[with thanks to Paul B. Simon for passing along the links

DavidP

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  1. Cockfighting, the First Amendment, and Internet Jurisdiction:
  2. More Crazy Internet Jurisdictional Stuff:
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Cockfighting, the First Amendment, and Internet Jurisdiction:

So here's more "crazy Internet jurisdiction stuff" - with a nice First Amendment overlay, to boot. Federal law (who knew?) makes it a crime to sell depictions of animal cruelty:

18 USC § 48. Depiction of animal cruelty

(a) Creation, sale, or possession. Whoever knowingly creates, sells, or possesses a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain, shall be fined under this title or imprisoned not more than 5 years, or both. . . . (c) Definitions. In this section-- (1) the term "depiction of animal cruelty" means any visual or auditory depiction, including any photograph, motion-picture film, video recording, electronic image, or sound recording of conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed, if such conduct is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place, regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the State . . .

A website based in Puerto Rico, www.toughsportslive.com, is challenging the law on First Amendment grounds. Our own Eugene Volokh is quoted in the NY Times story as holding the opinion that the statute is probably unconstitutional — and I agree. The statute makes it illegal to depict conduct if the conduct is illegal in the State in which the depiction is created, sold, or possessed — even if the conduct being depicted took place somewhere (like Puerto Rico) where it is legal. Speech that concerns conduct that is illegal in Virginia or Rhode Island cannot be banned consistent with the First Amendment - can it?

And beyond the First Amendment question — what if the website server, and all of the conduct depicted, came from a country (let's say Thailand) in which the conduct depicted (cock-fighting) is legal? Could a US court entertain an action against the website operator? [Alert readers will notice that this is the mirror image of the action recently filed in an Italian court against Google executives, discussed here].

Putting aside the question of whether a US judgment can be enforced against the foreign website, would the Thai website be violating 18 USC 46? By its terms, it looks like the answer is 'yes' — if cock-fighting is illegal under, say, Virginia law, and if the depictions are 'possessed' in Virginia, the statute appears to criminalize the creation/possession/sale of the image.

But I'd argue that the statute does not apply at all. The conduct in question, and which is depicted in the image, is not "cock-fighting," it's "cock-fighting in Thailand." And cock-fighting in Thailand is not illegal under federal law (because federal law does not apply to any conduct in Thailand), nor is it illegal under the law of any State (same).

And if you've read this far and find these issues of interest, hopefully you won't be too annoyed if I say, again: you should really read my book. The implications for the future of the Net in cases like this are profound, and we need to figure out how to deal with them in a sensible way. DavidP

Related Posts (on one page):

  1. Cockfighting, the First Amendment, and Internet Jurisdiction:
  2. More Crazy Internet Jurisdictional Stuff:
33 Comments