Current Cases and Precedent

It is a fallacy to believe that the Net has matured to its current state without intervention from government. Within the borders of many nations, ^[5] domestic policymakers have already struggled to address intrastate activities and decided upon the forum for adjudicating online cases. Most have applied long-arm statutes and minimal contacts principles ^[6] to establish jurisdiction. A fair amount of case law exists in defining the online boundaries for jurisdiction within given nations.

Contrary to domestic situations, establishing international jurisdiction protocols to deal with online activity has been much slower to develop. Until recently, it was rare for corporations or individuals of one nation to be hauled into another nation's courts for activities directly addressing the issue of online jurisdiction. As a result, there is still limited case law explicitly laying the foundation for online jurisdiction policies across international borders.

In recent years, basic trends have emerged as foreign courts and governments seek to establish authority over Web activity. As a result, a rudimentary jurisdictional framework has arisen from international cases related to hate speech and libel. Two recent court actions in Germany and Italy highlight these principles, but neither received the publicity or assumed the significance of LICRA v. YAHOO!, Inc. This particular legal battle was purported by many to be 'the case' to set boundaries and establish the foundation for future international jurisdiction practice. The results thus far have proved disappointing.

These incidences exhibit the shortcomings in applying national jurisdictional considerations to international online activities. The precedent set from the above-mentioned cases manifests the application of nationally oriented jurisdiction to Web-based activity. The variant nature of national laws coupled with the transparency of the Internet has led to international policy and practice that suggests the following basic themes:

• Country of destination principles ^[7] apply to cross-border activities.

• Minimal contact standards (to determine the effect of an action) are applied liberally to international questions of online jurisdiction.

• No distinction is made between active and passive content.

• The physical location of hardware and content is unimportant.

German Hate Speech Case

Background

In December 2000 Germany's highest court, the Bundesgerichtshof, ruled against Frederick Toben (an Australian citizen) for disseminating material on a website denying the Holocaust and propagating 'Auschwitz lies' (IDG German Courts, 2000). The online content, which was accessible in Germany but resided on an Australian website, violated German laws that prohibit the incitement of racial hatred, namely as it relates to Nazi propaganda. Toben, who fled the country after a lower court initially turned down the case, faces arrest and imprisonment should he return to Germany.

Analysis

This case represents stark implications for international jurisdiction, namely that if content can be accessed within a country, then the laws of that nation apply. Or phrased differently, national laws of one country can be applied to material originating (stored on a server) in another country.

This judicial action clearly demonstrates deficiencies in the German Court's exercise of a national norm of jurisdiction online. Almost two years later, Toben has not been detained because he has physically not returned to Germany, and as long as he remains abroad, there is little the authorities can do. In this case the notion of enforcement power exists only in a weakened form. Given physical international boundaries, the full effect of the ruling is outstanding since Toben remains free.

The German case also highlights the differing standards of speech even within western cultures. Critics of the judgment have stated that this ruling was the worst Internet-dependent court decision to date, and it has potentially chilling effects for free speech and the worldwide free flow of information. But, standards of speech are tied up in a nation's history according to Hans-Gertz Lange, a German spokesperson for the Verfassungsschutz. ^[8] Just as free speech is linked strongly to U.S. history, German laws against incitement of racial hatred are tied to Germany's past. The ruling exhibits the complexities of applying uniform international norms for speech.

Italian Libel Case

Background

In late 2000, legal action in the Italian courts was brought against unidentified individuals residing in Israel for spreading slanderous and defamatory statements via Web postings about an Italian man. This Internet behavior ensued following a custody battle between the Italian and his estranged wife, who had remarried an orthodox Israeli rabbi. The initial hearing by the Italian courts found that an exercise of jurisdiction was inappropriate due to the fact that the publishing of the websites was said to have taken place in Israel. However, on appeal, the Italian Court of Cessation found that local jurisdiction could be established based on the 'theory of ubiquity'. This standard states that Italian judges have the power to investigate offenses when the effects or consequences (of an offense) have been felt on Italian territory (Court of Cessation, 2000). The case was remanded back to the lower court for a 'new exam'.

Analysis

The results of this legal action imply that jurisdiction can be established where the effects of a behavior are felt. The court detailed with great intricacy its justification that the 'perception' of injury occurred on Italian soil and therefore was perpetrated on national territory (Court of Cessation, 2000). The case exhibits that the physical location where the effects of an action are felt warrant jurisdiction by that sovereign's judicial body. Similar to the German case, applying principles in a liberal fashion justified the court's power to preside over this case. The Italian decision details the downfalls and loose interpretation of the effects consideration when applying national jurisdiction principles to online activities.

Just as the German Bundesgerichtshof paid little attention to the differentiation between active and passive content, the Italians also gave no weight to this factor. The nature of the content, which consisted of statements and images posted in a read-only fashion to e-mails and websites, did not factor in the Italian Court's decision. This precedent downplays the 'hair-splitting' that previous courts have exercised to reasonably determine jurisdiction over certain online behavior.

League Against Racism and Anti-Semitism. LICRA v. YAHOO!, Inc.

Background

In France, it is illegal to sell or exhibit racist objects, and in May 2000, the League Against Racism and Anti-Semitism (LICRA) tested this law for its applicability to online content based overseas. LICRA brought legal action in the French Courts against YAHOO!, Inc.'s American Division (Yahoo.com) for availing French citizens to Nazi paraphernalia posted on the company's auction site. Following the initial filing, a series of court maneuvers ensued for the next year, culminating in a ruling by a U.S. judge in San Jose, California. The results of this fight have echoed mixed reactions throughout the international community and 'set the stage' for future legal battles regarding international online jurisdiction.

In response to LICRA's initial lawsuit, the County Court of Paris ruled against YAHOO!, Inc., assessing fines and demanding the questionable content be removed from access in France, despite being situated on a U.S.-based server. YAHOO!, Inc. insisted that such action was technically impossible and subsequently filed a Motion for Declaratory Relief in U.S. Court. The U.S. Court asserted personal jurisdiction over the matter ^[9] and decreed that they would not enforce a foreign order that violates the protections of the United States Constitution by chilling protected speech that occurs simultaneously within French and U.S. borders (U.S. District Court for Northern California, 2001). This action by the American Judiciary did not nullify the French Court's decisions; it instead blocked the enforcement of fines and demand for removal of content by LICRA.

Analysis

While this ruling simultaneously protects U.S. interests and allows France to exercise its judicial power, it characterizes the escalating tension between foreign nations on issues related to online jurisdiction. Clearly, the U.S. Court subverted France's ability to enforce its judgment, one of the critical elements of extending jurisdiction. Without the cooperation of the U.S. Judiciary to enforce, France has been left with a hollow ruling similar to the situation that resulted from the German case against Frederick Toben.

Despite the legal wrangling, a unilateral policy regarding online international jurisdiction is not evident from the case's outcome. Questions of international jurisdiction still remain. It is clear that country of destination practices substantiated France's ruling; the French Court recognized content viewed in France must abide by its sovereign laws. The ruling was issued with little regard to the fact that YAHOO!, Inc. had no physical hardware within French borders or was domiciled in the U.S.

First Amendment advocates have hailed the results of this legal action as a victory for free speech, but such a broad statement should be issued with caution. Jack Goldsmith, a law professor at the University of Chicago, has stated: "If you are a global Internet company (with assets) doing business in many countries, you have to follow local laws" (Kaplan, 2001, p. 2). Despite the United States' failure to cooperate in enforcement efforts against YAHOO!, Inc., corporations and individuals would be remiss to overlook the laws of individual nations when venturing online today.

^[5]For example: the U.S., France, Italy, and Germany.

^[6]Minimum contacts consist of physical presence, financial gain, stream of commerce, and election of the appropriate court via contract. (International Shoe Co. v. Washington, 1945).

^[7]The Laws of a country where content is viewed or received.

^[8]The Verfassungsschutz is the German federal criminal investigation agency that prosecutes Nazi and hate speech cases.

^[9]Since YAHOO!, Inc. is physically headquartered in the U.S. (San Jose, California).