A few weeks ago, eBay, the largest auction web site on the Internet, quietly halted the sale of items associated with hate groups. While ebay has long disallowed merchandise promoting hate, it has now broadened that prohibition to include t-shirts bearing the likeness of notorious murderers, crime scene photos, and even historical items such as Nazi documents and regalia.
While this may not seem like a huge development, it reflects the growing influence of international laws over U.S.-based e-commerce companies. As the eBay site explains: “As the eBay community expands to include many nations, it is important that our policy regarding these items be consistent throughout our global marketplace.” The Internet may pose vast possibilities for the world, but its ability to facilitate instantaneous global communication has created the potential for conflict among nations’ laws, broaching the sensitive issue of national sovereignty.
The OECD’s June 2000 report on the new economy illustrated how the Internet has fostered an explosion in productivity, which is inextricably linked to global economic recovery. Throughout the world, technological development and the high-tech industry has enabled once poor countries to make their mark on the global economy. But while foreign nations have been quick to embrace the Internet as a means of boosting development, their domestic regulations are, in many instances, stifling e-commerce and unleashing a flood of legal sovereignty issues.
Numerous recent cases in Europe have pitted American web companies against local regulations and customs. In one case, French Judge Jean-Jacques Gomez upheld a ruling that Yahoo is responsible for illegal content on its Web portal, forcing many American-based industries — and not only those in the web hosting business — to try to work out what laws apply when and where in cyberspace.
Web surfers once could anonymously explore Yahoo’s portal, which features an online auction with everything from books and CDs, to electronics equipment, to World War II memorabilia. But access to materials such as Nazi uniforms and KKK memorabilia sent French authorities and civil rights groups through the roof, resulting in a lawsuit against Yahoo for violating a law that prohibits the public display of materials that incite racism. In its defense, the California-based company argued that it simply wasn’t possible, technologically speaking, to filter out certain items from its auction web site for specific regions. Judge Gomez was unconvinced.
The case is but one example of a growing list of litigation involving online content that crosses borders. Plaintiffs reason that because users of a web site access content within their country’s particular jurisdiction, local laws prevail, despite the seamless nature of the Internet.
The Question of Jurisdiction
Already nations are moving to implement in international conventions of trade and commerce the idea that the laws governing the Net ought to be those of the region in which the consumer or end user is located.
In Europe, revisions to the Brussels convention — a legal treaty governing the way in which European nations address jurisdictional question for trade purposes — are creating a conundrum for commercial web sites. The Brussels convention stipulated, broadly speaking, that the laws of a business or company’s home state prevailed over those of the consumers’ home state.
Thanks to a decision by the European Union, this will no longer be the case. In the name of consumer protection, EU citizens may apply laws of their own state to foreign-based businesses, including e-commerce sites or web-based retailers. Similar revisions are also under consideration right now in the European Commission for the Rome Convention, which would apply the same type of revisions made to the Brussels convention to the communications market.
These kinds of regulations raise broader issues of legal jurisdiction on the Internet. Countries are already updating their laws to create safety mechanisms for their citizens. As a result, they are establishing murky guidelines for, among other things, free speech or even the ability of domestic laws to govern U.S. companies.
Indeed, the United States is not exempt from the debate. A patchwork of legislation has made its way through the House and Senate addressing issues such as gambling and pornography. Web sites hosted in countries such as Sweden, where pornography isn’t regarded as a big deal, are readily available to U.S. consumers anytime, anywhere. But could an American sue a Swedish based web site for displaying pornography?
The answer is unclear. That’s because the jurisdictional issues once governed by international treaties like the Hague convention are now in the process of being revised to accommodate technological changes in commerce and trade. In a series of negotiations with foreign signatories, representatives from a variety of federal agencies — including the Federal Trade Commission, the Patent and Trademark office, the Department of Justice and the Commerce and State Departments — are facing tough questions on how to apply territorial laws to a commercial instrument that does not recognize borders.
Whose Culture Matters?
Nations’ cultural sensitivity towards materials on the Internet cannot easily be reconciled through a consensus-building process. And competing laws and regulations governing issues such as free-speech are not easily harmonized across borders. Consequently, some deeply-rooted resentments and disagreements among nations are amplified by the global and constant nature of the web.
While the Internet has caused unprecedented growth in economies world wide, its lack of boundaries poses one of the greatest challenges world governments will face in the coming years. Increasingly, online phenomena such as hate-speech will become a U.S. problem as it is regulated globally. Already, scores of international policymakers and representatives from non-governmental organizations are looking to regulate Internet speech. At a U.N. conference on intolerance in Stockholm in January, U.N. High Commissioner for Human Rights Mary Robinson told delegates that “a further topic which needs to be addressed is the use of the Internet to spread messages of hate and prejudice. A technical advance, which has a great capacity to enlighten and entertain, becomes, in the hands of some, a weapon of racism. We must be alert,” she argued, “to the corrupting effect of such messages and seek ways for the high tech companies — and the media — to become more involved in fighting racism.”
While each country has the right to maintain it owns cultural domain, one cannot help but recognize the implications for international commercial trade. Disputes over Internet content, and indeed, the very idea of how to regulate the world’s fastest growing utility, holds global ramifications for anyone doing business over the Web. And while the United States respects the rights of free speech, even when it promotes racism, countries such as Germany do not.
Elliot Maxwell, former special assistant to Commerce Secretary William Daley in the Clinton administration, warned that territorial application of laws on the Web could destroy the open nature of the global network. “Imagine moving from an Internet where everyone can communicate freely,” Maxwell told a group of trade lawyers in December, “to one in which there is essentially an Internet for the French and an Internet for the Chinese and an Internet for the Germans and an Internet for the Italians. It’s a very different model,” he noted, “from what was originally intended.”
Is there a sensible way to approach this issue in the context of the global market? Global policy makers will attempt to resolve some of these jurisdictional questions when they meet in the Netherlands in June to begin revising the Hague convention.
Faced with the task of reconciling the conflicts that technology has bred, many agree that we should not adapt the Internet to the law, but rather adapt the law to the Internet. U.S. policy makers must recognize that the first nation to address these issues will set the global standard for regulations.