The United States has a tradition of generally broad protection of freedom of speech, which has persisted in the Internet age. Thus American courts have struck down most laws attempting to limit content on the Internet, including provisions of the Communications Decency Act restricting indecent speech on the Internet (in Reno v. American Civil Liberties Union, 521 U.S. 844 (1997)) and sections of the Child Online Protection Act, aimed at protecting children from material defined as harmful to them (in ACLU v. Mukasey, 534 F.3d 181 (3d Cir. 2008), cert. denied, 129 Sup. Ct. 1032 (2009)).
But other nations do not necessarily share the same expansive view of freedom of speech, and place restrictions on what their residents can post or access online. For example, China places restrictions on sexual content and content regarding political dissidents (as we’ve discussed on this blog before here, here and here). Several countries, including Germany and France, ban the sale of Nazi memorabilia. Australia and France are each now considering mandatory Internet filtering laws. And many countries have more draconian libel and privacy laws than we do in the United States. [Of course, there are Internet restrictions in the United States as well, as NCAC has documented.]
Often countries impose their restrictions by using filters that limit access to offending websites and material from beyond the country’s borders. Others require that search engines tailor their results to restrict access to forbidden content: Microsoft has implemented such restrictions and so has Google, though Google has recently spoken out against limitations on its services in some places, while agreeing to them in others. And some websites take action on their own, restricting access to particular material in particular countries for reasons such as restrictions on pre-trial publicity.
The problem is that restrictions in these countries inevitably affect Internet users in less-restricted countries, including the United States: Americans can’t access information that is restricted at its source in accordance with local Internet limitations. Many country’s Internet restrictions block content from and about the United States, resulting in an incomplete or distorted view of the U.S. These restrictions also have economic implications. Still, the biggest threat imposed by foreign Internet restrictions is that foreign countries will try to sanction American content providers for Internet material that is protected in the U.S. by the First Amendment, but may run afoul of local laws.
As NCAC has discussed before, an example of this is an effort by a French group to get a French court to order Yahoo! to stop offering Nazi memorabilia for sale on its U.S.-based, English language auction site, which was accessible in France. The French court ordered Yahoo to remove the auctions . Yahoo went to court in the United States, seeking a declaration that the French court order did not apply to its site; but it also took steps to remove the auctions. A federal court eventually agreed with Yahoo’s argument, but an appeals court dismissed the case on the grounds that it did not have jurisdiction over the French parties. Yahoo!, Inc. v. La Ligue Contre Le Racisme et L’Antisemitisme, 169 F. Supp. 2d 1181 (N.D. Cal. 2001), rev’d, 433 F.3d 1199 (9th Cir. 2006) (dismissing on jurisdictional grounds), cert. denied, 126 S. Ct. 2332, 164 L.Ed.2d 848 (U.S. 2006). A second case in France, a criminal prosecution, was unsuccessful.
A more recent example is Italy’s conviction of three Google executives for violating Italian privacy laws by hosting a video posted by some students of them harassing an autistic fellow student. European countries have different concepts of privacy than the US, which in itself may result in limitations on what Americans can access online, if Internet companies feel they have to refuse or remove material that is acceptable in the United States but may violate European privacy notions. But outside the United States Internet hosting companies don’t have the protection of sec. 230 of Communications Decency Act, which gives broad immunity from liability to such sites in the United States. The European Union actually has a similar law, but it allows a site to be held liable if it doesn’t remove the material after receiving a complaint. Google did this, removing the video and helping Italian authorities identify who posted it; the convicted executives will appeal.
If the Italian precedent is allowed to stand, Internet companies will face a bewildering array of laws and standards for privacy, defamation, and other online offenses. For example, there is now an effort to enforce Germany’s privacy laws against an English, U.S.-based Wikipedia entry. With no practical way to monitor all the material that users are posting on their sites, Internet hosts facing these challenges may resort to shutting down or severely curtailing (to trusted users, for example) their services for user-created content.
American courts, like the federal court in the Yahoo! case, have generally rejected attempts to enforce foreign judgments from other nations. And several states have passed statutes to this effect. But there is still a danger to international entities that have assets or personnel in both the United States and in other countries that do not share our broad free speech principles. Such entities — such as international news organizations, or publishers — may just shy away from posting such content online at all in order to avoid litigation or prosecution abroad.
The end result would be that foreign countries would be able to chip away at the First Amendment, at least for Internet content providers who may be vulnerable to jurisdiction in these nations.
by Eric Robinson, a guest blogger