Posted by David Post:
More Crazy Internet Jurisdictional Stuff:
http://volokh.com/archives/archive_2009_02_08-2009_02_14.shtml#1234283121
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, [1]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 [2]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 [3]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.
References
1.
http://www.businessweek.com/globalbiz/content/feb2009/gb2009029_161135.htm?campaign_id=rss_daily
2.
http://www.amazon.com/gp/product/0195342895?ie=UTF8&tag=inseaofjefsmo-20&linkCode=as2&camp=1789&creative=9325&creativeASIN=0195342895
3. http://jeffersonsmoose.org/
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