The Borderless Internet And Jurisdictional Disputes: A Growing Problem

from the different-laws,-different-places dept

For many, many, many years, we've discussed how the fact that the internet easily reaches anywhere, despite different laws in different places, makes for some really screwed up legal situations, and little has been done to address this over the years. We recently wrote about a troubling decision in Belgium, whereby a Belgian court seemed to think that Yahoo -- despite no presence in Belgium -- needed to comply with Belgian laws. And, we're seeing similar situations again and again and again. Two new examples...

First, we already wrote about how London's National Portrait Gallery was threatening someone in the US for copying photos of public domain paintings from the Gallery's website and putting them on Wikimedia's servers. The problem is that this is entirely legal in the US, and the guy was in the US, the computer he used was in the US, and Wikimedia's servers are in the US. But the threat of a lawsuit is in the UK. Luckily, the EFF has taken on the case and is trying to stress this point:
It's quite clear under U.S. law that Mr. Coetzee did nothing wrong -- as far as U.S. law is concerned, the photos are not copyrightable, the NPG website's "browsewrap" contract is unenforceable, there is no "database right," and using Zoomify on public domain images doesn't get you a DMCA claim. It's also clear that everything he's alleged to have done took place on his computer and Wikipedia's computers, none of which are in the UK.

In the offline world, that would certainly be the end of the matter. If Mr. Coetzee had flown to London, purchased posters of the same paintings at the museum store, brought them home, and started making copies for his friends, it's clear he would be well within his rights in doing so.

Why should the answer be different simply because he posted the photos to Wikipedia? NPG seems to think that UK law should apply everywhere on the Internet. If that's right, then the same could be said for other, more restrictive copyright laws, as well (see, e.g., Mexico's copyright term of life of the author plus 100 years and France's copyright over fashion designs). That would leave the online world at the mercy of the worst that foreign copyright laws have to offer, an outcome no U.S. court has ever endorsed.
In a separate case involving people in the US and a lawsuit in the UK, Mike Arrington, who runs TechCrunch, was recently sued for libel in the UK. The standards for proving libel in the UK are significantly lower than in the US, and considering that TechCrunch is a US site, based in the US on US servers, Arrington (reasonably) felt that responding to the lawsuit itself made little practical sense. Even if he could have won the case (and from the details, the case seems patently ridiculous, more a case of sour grapes than anything else), it would have been way too costly to defend. So he refused to respond... leading to the inevitable summary judgment (which is what happens by default when the other side doesn't appear). This is a bad result for everyone, as it means Arrignton can no longer travel to the UK (and, in fact, canceled planned travel there), for no good reason at all, other than not wanting to spend an incredible sum of money to defend himself in a country he doesn't live in or operate in. It's hard to see what's reasonable or fair about that at all.

Issues like these have been going on for many, many years, and at some point this is going to need to be addressed. You can't have a situation where the lowest common denominator of laws applies across the board in every country. And you can't have a situation where people would have to bankrupt themselves to defend themselves in a foreign country. It still seems like the most reasonable solution is to default such lawsuits to the country where the action has actually taken place and/or where the servers reside. Now, some might say that you can place the servers elsewhere, but for such situations you could just default to where the person resides.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Anonymous Coward, Aug 4th, 2009 @ 3:26pm

    The problem for Mr Arrington would have easily been resolved with geo targeting and htaccess, just don't let your blog be seen outside of the US and everything would be fine.

    What many web people forget is that although your servers are in one jurisdiction, the reality is that you are distributed everywhere. So in many cases, the lowest level jurisdiction is where you might end up being judged. It's no different from forum shopping certain cases in the US, trying to find a friendly jurisdiction to try a case. After all, the laws are different state to state as well.

     

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  2.  
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    Ryan, Aug 4th, 2009 @ 3:37pm

    Re:

    That makes no sense at all. He didn't actively seek out other users to become available to, they came to him. For the prior instance, should Wikipedia have blocked off the U.K.? If another country want to enact a national filter to block certain sites such as Mr. Arrington's, that is their prerogative(but certainly sounds like a sucky situation for their citizens). Distribution != Availability.

     

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  3.  
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    John R. Sedivy, Aug 4th, 2009 @ 3:42pm

    Borderless Internet

    One of the most fun parts about blogging is the self regulating nature of the Internet. Popularity appears to be driven by trust, which is built by repeated quality content. If you provide quality content in a consistent manner, your popularity increases - the opposite is also true. One can only hope that the lawyers do not become overly involved and dampen the experience.

     

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  4.  
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    Jake, Aug 4th, 2009 @ 3:50pm

    Quite. It seems to me that if you take payment for services from people in a country beside your own, you can hardly claim to be immune to their local laws just because your corporation is based somewhere else. Otherwise we'd have another, even worse lowest common denominator situation; anyone wanting to make child pornography or sell banned firearms or solicit murder just has to host their site in the country where they're it's least likely they'll get arrested, and maybe acquire citizenship in the same place, and any attempt to prosecute them in the target country is stymied.

     

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  5.  
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    Frances Monro, Aug 4th, 2009 @ 4:17pm

    Maybe we need a special international Internet Court that "sits" online and decides Internet matters between people and companies based in different countries.

     

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  6.  
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    Benjamin Wright, Aug 4th, 2009 @ 4:34pm

    Transparency

    In a world of innumerable, conflicting, overlapping laws, legal compliance will never be perfected. But compliance problems are more manageable if you pursue transparency, outreach to local authorities and good public relations. --Ben

     

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  7.  
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    Anonymous Coward, Aug 4th, 2009 @ 4:37pm

    Legislation should be simple: my internet server is my place of business. Anyone visiting it is "visiting" my place of business (it's not a delivery service). They may just as well get in a plane and visit me personally. So, I don't need to cater to every single visitor's place of residence, and obey their laws. If I owned a bookstore, and some dude from France came and got a book, he can't sue me because some obscure and silly french law.

    Now, Amazon has to physically deliver their goods to whoever, so that's a different matter. But not if you're just reading books online.

     

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  8.  
    identicon
    Anonymous Coward, Aug 4th, 2009 @ 4:46pm

    A company in Northern Ireland (Supposedly part of the UK) said our small (completely) US company "copied" a portion of their unpatented design on a piece of our equipment. Pushed it quickly through a court in NI and received summary judgment in two days (Because we failed to appear). We didn't even hear about it until the following week. The design is completely different. Now in their marketing is spreading that they won a law suit that we infringed on their patent.

    Come to find out, the magistrate is the Director of Marketing's Uncle.

     

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  9.  
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    Joe, Aug 4th, 2009 @ 4:54pm

    Looking at the same issue but in terms of cybercrime instead of copyright infringement, Gary McKinnon, the British hacker that broke into the Pentagon looking for evidence of a ufo coverup was approved for extradition this week.

    The argument there is that the crime was committed in the UK, but the 'damage' was felt in the US. Therefore, the US argues, the trial should be held where the damage was felt.

    This matches up with the UK argument here, though I can't help but feel if a US hacker was accused of hacking the Chinese government (or really any other country) there would be zero chance of that person being extradited.

     

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  10.  
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    Anonymous Coward, Aug 4th, 2009 @ 4:57pm

    Why does anyone believe that similar acts do not apply to the off line world?

    Does anyone recall the US's prosecution of Noriega?

    How about Spain's of the Argentina military officers?

    Or Netherlands' prosecution of Africans?

    No differences. Same thing application of foreign law to citizens of a different country.

     

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  11.  
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    DJ (profile), Aug 4th, 2009 @ 5:03pm

    Re:

    "you can hardly claim to be immune to their local laws just because your corporation is based somewhere else"

    If you are not physically present in a place when an action that is illegal in that place, you CANNOT be held accountable.

    It's haughtilly laughable to presume otherwise.

     

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  12.  
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    DJ (profile), Aug 4th, 2009 @ 5:04pm

    Re: Re:

    ^when an action that is illegal in that place occurs

     

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  13.  
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    DJ (profile), Aug 4th, 2009 @ 5:05pm

    Re:

    "How about 'No', Scott"

     

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  14.  
    icon
    DJ (profile), Aug 4th, 2009 @ 5:35pm

    Re:

    If Firefighters fight fire, and Crimefighters fight crime, what do Freedomfighters fight??

     

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  15.  
    icon
    DJ (profile), Aug 4th, 2009 @ 5:46pm

    Re:

    Noriega was a drug trafficker:
    U.S. District Court Judge William Hoeveler upheld the government's right to prosecute Panama's military ruler, Gen. Manuel Antonio Noriega, on charges that he turned Panama into a way station for cocaine traffickers.

    Cavallo was a mass-murderer:
    Mexico's landmark decision to extradite former Argentine Navy Captain Ricardo Miguel Cavallo to Spain, where he faces charges of genocide and terrorism, reinforces the potential power of international law to end impunity around the world.

    Couldn't find anything about the Netherlands thing. There are some differences here, though. Noriega was moving drugs INTO the US and other countries; therefore he's subject to US law. Cavallo committed a crime against humanity; therefore he's subject to international law.

     

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  16.  
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    Big Al, Aug 4th, 2009 @ 6:06pm

    Re: Re:

    Unfortunately, both the US and Europe deem that items on the internet are published in the country in which they can be read. If you physically published a book in the UK which was defamatory then, no matter where you live, you will be taken to court in the UK.
    What people have to realise is that the internet is truly a world-wide medium, and hiding behind national boundaries will not help. Instead, being more circumspect in what you 'publish' is the only way to go.
    While I sympathise to a degree with Mr Arrington's plight, if he had either checked himself first, or made an effort to defend himself then this wouldn't have happened.

     

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  17.  
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    Anonymous Coward, Aug 4th, 2009 @ 6:21pm

    Re:

    The problem for Mr Arrington would have easily been resolved with geo targeting and htaccess, just don't let your blog be seen outside of the US and everything would be fine.

    It isn't his job to police the people of other countries.

    If the British gov't doesn't like what people can access on the Internet from outside of their jurisdiction, then maybe they should just block the internet at their borders. Nothing in or out. Then they can have their own little British-only internet that works just the way they want.

     

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  18.  
    identicon
    Anonymous Coward, Aug 4th, 2009 @ 6:32pm

    Re: Re:

    If you are not physically present in a place when an action that is illegal in that place, you CANNOT be held accountable.

    It's haughtilly laughable to presume otherwise.


    No, unfortunately it's naive to believe that you can't.

    The British are currently in the process of extraditing one of their own citizens to the US to face criminal prosecution for internet computer crimes. http://www.pcworld.com/businesscenter/article/169403/british_court_allows_hacker_to_be_extradited_to _us.html

     

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  19.  
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    Nick (profile), Aug 4th, 2009 @ 6:36pm

    International waters

    The entire net should fall under UN law, and only UN law.

     

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  20.  
    identicon
    Anonymous Coward, Aug 4th, 2009 @ 6:46pm

    Re: Re: Re:

    What people have to realise is that the internet is truly a world-wide medium, and hiding behind national boundaries will not help. Instead, being more circumspect in what you 'publish' is the only way to go.

    That's right. Take, for example, Saudi Arabia where it is illegal to publish Christian bibles. People in other countries have been publishing such material to the internet anyway, "hiding behind national boundaries". I think extraditing a few of them and then broadcasting their subsequent beheadings just might put a stop to that.

    [/sarcasm]

     

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  21.  
    identicon
    Anonymous Coward, Aug 4th, 2009 @ 6:49pm

    Re:

    Maybe we need a special international Internet Court that "sits" online and decides Internet matters between people and companies based in different countries.

    And let's put it in Iran!

     

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  22.  
    identicon
    Anonymous Coward, Aug 4th, 2009 @ 6:55pm

    Re: Re:

    If Firefighters fight fire, and Crimefighters fight crime, what do Freedomfighters fight??

    If soybean oil comes fro squeezing soybeans, and olive oil comes from squeezing olives, then where does baby oil come from?

     

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  23.  
    identicon
    Anonymous Coward, Aug 4th, 2009 @ 7:05pm

    Prohibited Speech?

    I know that it is a criminal offense in Britain to promote certain kinds of ideas or say certain kinds of things. Could people who say such things on the Internet in the US be extradited to stand trial in Britain?

    How about if it was said in a telephone conversation between the two countries instead? Now the telephone is nothing new, so I really would have expected there to be some kind of precedence in that area.

     

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  24.  
    identicon
    Anonymous Coward, Aug 4th, 2009 @ 7:16pm

    Re:

    This matches up with the UK argument here, though I can't help but feel if a US hacker was accused of hacking the Chinese government (or really any other country) there would be zero chance of that person being extradited.

    The extradition agreement between the US and UK is indeed lopsided in that it is more difficult to extradite a US citizen to the UK than vice versa.

     

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  25.  
    identicon
    Anonymous Coward, Aug 4th, 2009 @ 7:20pm

    Re: Re:

    If the British gov't doesn't like what people can access on the Internet...

    Applies to Belgium to.

     

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  26.  
    identicon
    Anonymous Coward, Aug 4th, 2009 @ 7:43pm

    Re: International waters

    That is the worst idea I have ever read.

     

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  27.  
    identicon
    Luci, Aug 4th, 2009 @ 8:38pm

    Re: Re: Re:

    Umm... That's because the crime took place on US soil. It was a US computer that was broken into. You cannot say the crime took place elsewhere. Not the same thing at all.

     

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  28.  
    identicon
    Big Al, Aug 4th, 2009 @ 11:02pm

    Re: Re: Re: Re:

    90% for sarcasm, 20% for reading comprehension.
    Mr Arrington is not being extradited - but if he goes to the UK he could well be arrested for non-payment of damages, so he'll have to avoid the country for the foreseeable future. Similarly, if one of the known bible publishers decided to take a holiday in Saudi, who knows what the repercussions might be?

     

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  29.  
    identicon
    Anonymous Coward, Aug 5th, 2009 @ 12:34am

    Re: Re: Re: Re:

    Umm... That's because the crime took place on US soil. It was a US computer that was broken into.

    Umm... No, the US computer extended it's presence to the UK, where the alleged crime took place.

    You cannot say the crime took place elsewhere.

    Umm... I just did. Strike two, you wanna try for three?

    Not the same thing at all.

    Strike three, and she's outta there, folks!

     

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  30.  
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    Andy (profile), Aug 5th, 2009 @ 12:36am

    Don't encourage them

    It is sad enough that governments seem to take increasing levels of power for themselves, becoming law machines which churn out ever more intrusive laws against their own citizens. This is undesirable as it is, but when they become so full of their sense of importance that they start thinking their laws should apply to other states, it becomes obnoxious.

    The EU has already enacted laws to enable member states to prosecute citizens of other member states for things which may be illegal in the accusing state but not in the state where the person resides. Furthermore it seems that the accused does not even need to have set foot in that state for this to apply. Remember that the EU is a collection of independent sovereign states, not a federation.

    If the internet becomes subject to the law of particular states, it logically becomes subject to the law of all states with access to the internet, much of this law is contradictory. That alone shows why this should not be.

     

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  31.  
    identicon
    Anonymous Coward, Aug 5th, 2009 @ 12:39am

    Re: Re: Re: Re: Re:

    Mr Arrington is not being extradited -

    Didn't say he was either. What were you saying about "reading comprehension"?

     

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  32.  
    identicon
    ethorad, Aug 5th, 2009 @ 5:16am

    Re:

    There does seem to be a case of double standards here.

    NPG: a US citizen connected to a computer in the UK and broke UK laws. He is very unlikely to be brought to the UK for his crime.

    Gary McKinnon: a UK citizen connected to a computer in the US and broke US laws. He is off to the US to face trial.

    I know that there is a difference in that if the NPG was based in the US it would be legal, but if Gary had hacked into UK computers it would still have been against the law but I don't think this matters - in both cases US laws are trying to be applied which is inconsistent.

    To me, if the person specifically targetted an action to a certain country then they should be beholden to the laws of that country regardless of your home laws.

    Lets say you lived in a country where shooting people if they wore green was allowed. You stand in your own country and start shooting at filthy green-wearers across the border in a different country. You're not committing a crime in your own country but you're targetting another country where it is against the law and so you can likely expect to hear from the authorities about extradition.

    Similarly the NPG guy (forgot his name) specifically targetting the NPG site, and so his actions there should come under UK law (and similarly Gary by default should go to the US - although I hope they do consider his mental health condition).

    The TechCrunch thing I'm not aware of but I'd be suprised if he was targetting the UK specifically. It's upsetting that he is now essentially denied access to the UK over it, but if he can find somewhere neutral perhaps he can meet up with Cat "Yusuf" Stevens for a chat? (and yes I'm aware that since being banned from entering the US Yusuf has been allowed back in)

    Taking the Iranian Bible publishing point - I'm not suggesting that because Iran doesn't allow it, nobody should be allowed to publish them online. But you have to acknowledge that if you stand up and promote something that goes against another country's laws you can't expect to feel welcome there (see UK citizen David Irving and his arrest in Austria for denying the Holocaust while in the UK)

     

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  33.  
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    Mechwarrior, Aug 5th, 2009 @ 5:45am

    Re:

    That doesnt matter, if there isnt a cooperation treaty between nations for this sort of thing, then there is a strict delineation of jurisdiction. In Arrington's case, it was about libel, and in the United States, where he and his services live, there is no legal case for it. Arrington doesnt have to follow any other countries laws, because United States has no treaty agreement to do so.

    Of course if ACTA goes through, that may not be the case anymore...

     

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  34.  
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    The Infamous Joe (profile), Aug 5th, 2009 @ 9:11am

    Re: Re: Re:

    If pro is the opposite of con, what's the opposite of progress?

     

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  35.  
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    btr1701 (profile), Aug 5th, 2009 @ 1:20pm

    Re: Re: Re:

    > What people have to realise is that the internet
    > is truly a world-wide medium, and hiding
    > behind national boundaries will not help.

    Actually, yes it will. I live in the USA and am an American citizen. What I say is protected by the 1st Amendment to the Constitution. I don't give up that right and become subject to criminal prosecution in a country like China or Iran, which doesn't recognize *any* freedom of expression just because someone can pull up my internet site in those jurisdictions.

    If China or Iran or North Korea or Syria tried to extradite me to face criminal prosecution for exercising my right to free speech which is fully protected in the USA, the United States government would be legally prohibited from enforcing that extradition request or doing anything which would facilitate that prosecution, and in fact would be required to be an advocate on my behalf in opposing such proceedings.

    So yes, "hiding behind" national boundaries (if you want to call exercising one's guaranteed freedoms hiding) very much is an effective strategy.

     

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