International Speech Codes and the Internet

To say that the Germans have had a history of problems with Nazis and the fascist worldview ranks as a colossal understatement. Surely, there is no country with a greater justifiable reason to separate itself from this dangerous and ugly part of its past. Despite American free speech sensibilities, it is difficult to criticize the efforts of modem Germany to use the law to suppress, within their own borders, Nazi symbols and sentiment.

Nonetheless, a recent action by the Bundesgerichtshof, the highest German civil court, should concern those who view the Internet as an important medium for free and unfettered speech. The German court recently convicted Frederick Toben of publicly denying the historical reality of the Holocaust. Of course, Toben’s claim is despicable and false, but it also came from Toben’s web site in Australia not in Germany. The German court claimed jurisdiction over web sites outside its borders so long as Germans had access to the site.

Perhaps this should not concern us too much since Toben is being prosecuted in Germany. If you don’t like German laws, just do not visit Germany. Then what should be done about Yahoo’s predicament? Yahoo is a multinational company. They have spun off web enterprises in different countries. There is a Yahoo France, Yahoo Italy, and even a Yahoo Argentina that use French, Italian, and Spanish as their base languages, respectfully. These locally-based divisions are ready to comply with local law and avoid tweaking local sensibilities.

French law prohibits the sale of Nazi memorabilia. The International League Against Racism and the Union of French Students successfully persuaded French Judge Jean-Jacques Gomez to enjoin Yahoo against the auctioning of such material at its web site. Yahoo’s French division was already in compliance with the French law in this regard. The United States-based Yahoo had not yet implemented such restrictions in its auction area. In essence, the French arm of the law was reaching across the Atlantic to enforce its regulations on a US-based web site. It was attempting to enforce a law that would, if issued by a United States jurisdiction, violate the First Amendment.

The US Yahoo has since disallowed the sale of Nazi memorabilia on its auction site as a matter of company policy. It has also asked a US federal judge to issue a declaratory judgment to render the French Judge Gomez’s verdict unenforceable in the United States. If French speech codes are enforceable against United States web sites, US citizens no longer have the choice to simply not visit France to avoid French law. French law could constrain American web sites.

The entire issue of international enforcement of speech codes is becoming complicated with improvements in Internet technology. It is becoming possible to resolve the location of IP addresses to different countries, states, and even towns. The positive side of this new technology is that it allows web sites to provide content that is tailored to the location of the user. A web site can automatically provide content in the appropriate language and provide news information on local topics.

Such technology also allows sites to refuse to provide material to certain areas. Web sites could become indirect agents of foreign governments precluding access to residents of certain jurisdictions.

In the future, might the United States Yahoo, be required to block content from IP addresses from France, even when there is no US law prohibiting certain content? In the future, could Tennessee, with stricter pornography laws, sue to prevent California-based web sites from providing California-allowed content to IP addresses originating from Tennessee? Will Dr. Laura’s web site be required to limit access to certain areas by politically correct jurisdictions that find her moral views objectionable? Will the foreign divisions of multi-national corporations be held hostages, lest the web sites hosted on American soil post information uncomfortable for foreign magistrates?

What about e-mail? Can the originator of e-mail in the US be held liable for violating local speech codes for mail sent to another country? To what extent will foreign countries be able to invoke extradition treaties or civil penalties to enforce their local laws on Americans?

The recent conventional wisdom has been that George Orwell’s vision in 1984 was incorrect. Rather than computer and communications technology acting as agents for surveillance by the state, they empower individuals to market their ideas across the world unencumbered by the state. Perhaps as Internet technology matures, conventional wisdom will grow to conform the Orwell’s more frightening and chilling predictions.

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