A BRIEFING ON PUBLIC POLICY ISSUES AFFECTING CIVIL LIBERTIES ONLINE
from
THE CENTER FOR DEMOCRACY AND TECHNOLOGY
CONTENTS:
(1) CDT Urges Court to Block French Net Content Restrictions in the U.S.
(2) Case Tests Global Reach of National Courts
(3) Chronology of the Yahoo! case
(4) Internet Industry Also Files "Friend of the Court" Brief Supporting Yahoo!
On May 6, CDT, the ACLU and other public interest groups filed a brief in the ongoing litigation to declare unenforceable a French court decision ordering Yahoo! to block French users from accessing a broad array of WWII and Nazi material. The French decision, requiring Yahoo! to change the architecture of its US-based services or face massive fines, has broad implications for free speech and commerce online.
The public interest groups filed their "friend-of-the-court brief" in the federal Court of Appeals for the Ninth Circuit (which includes California, where Yahoo! is headquartered). The brief argues that the French judgment represents an improper attempt by a foreign nation to apply its law beyond its borders to restrict expression protected by the constitution of the country where the creator of the content has its business operations -- in this case, the US Constitution.
The premise of the French court's ruling is a regime where web publishers in the US, the UK, Japan, or France itself could be held liable under the laws of hundreds of other countries based solely on the fact that a website can be viewed in those countries. Under such an approach, the brief argues, the burden of screening all content for all visitors against thousands of local laws would leave ISPs and content providers with no practical choice but to restrict their speech to the lowest common denominator of every country in the world in order to avoid liability - an outcome fundamentally incompatible with the value of free speech and the global nature of the Internet.
The brief argues that, in the United States, the French ruling would undermine First Amendment protection for Internet communications. We urged the appeals court to affirm a lower court decision holding the French ruling unenforceable in the US.
CDT's brief, the French Yahoo! decision (translated into English), and the lower US court ruling declaring it unenforceable can be found at http://www.cdt.org/jurisdiction/.
The French court's order is but one example of the sort of judgment that courts around the world can expect to see with increasing frequency as Internet use expands globally. Given the borderless character of the Internet, controversial speech perfectly legal in one country is likely to be forbidden by laws somewhere else.
The May 6 brief lists some of the types of laws that regulate speech around the world, which could be used against web publishers if the regime contemplated in the French ruling is accepted. If French law can be enforced against California-based Yahoo!, then US-based websites - and websites around the world - might be faced with orders to block access to information that -
These are just some of the types of restrictions that countries have applied to the Internet. The human rights implications of these restrictions are magnified if a country can issue civil or criminal judgments against offensive material created and hosted in another country where such material is perfectly legal.
Finding the French court ruling unenforceable in the US does not leave the French people without the ability to enforce their values within France. Under the position advocated by CDT in its brief, the kind of speech that the French ruling seeks to restrict in the US would still be illegal in France, and the French government could seek to prosecute those in France who produce it or access it . While CDT does not advocate such measures, countries have tools available to force ISPs within their own territory to block access to websites hosting disfavored content. Such approaches are far superior to making Internet publishers worldwide liable under foreign laws which they have no knowledge of or control over.
For CDT's July 2001 policy post detailing the rise in court decisions reaching content in other countries, go to http://www.cdt.org/publications/pp_7.06.shtml
Here's the background on the French Yahoo! case:
Also on May 6, a coalition of leading business organizations and associations -- led by the U.S. Chamber of Commerce -- filed a brief with the Court of Appeals in support of Yahoo!.
The industry brief is directly complementary to the arguments made in the public interest brief filed by CDT and others. Just as the decision of the French court is a serious threat to free speech, it is also a threat to companies' ability to do business on the Internet. The industry brief argues that the French court lacked jurisdiction (and thus was without power) to order a US company to change its US-based and US-focused web site based solely on the fact that the web site could be viewed in France. The brief also argues that the California federal district court did have the power to step in and declare that the French court order was unenforceable.
Taken together, the briefs filed by the public interest coalition and the industry groups strongly articulate the serious threats to speech and commerce on the Internet that are created when one country tries to censor the entire Internet.
The industry brief is also available at http://www.cdt.org/jurisdiction/
Detailed information about online civil liberties issues may be found at http://www.cdt.org/.
This document may be redistributed freely in full or linked to http://www.cdt.org/publications/pp_8.10.shtml.
Excerpts may be re-posted with prior permission of ari@cdt.org
Policy Post 8.10 Copyright 2002 Center for Democracy and Technology
