The First Amendment provides American-based websites with the freedom to report on newsworthy events, including those that happen in other countries to citizens of other countries. Yet, the global nature of the Internet opens it up to legal challenges from countries with more restrictive speech regimes.
Last fall, for instance, lawyers for the convicted murderers of German actor Walter Sedlmayr sent Wikimedia, an Internet content provider located in the United States that runs Wikipedia, a cease and desist letter demanding that Wikimedia remove from its Wikipedia article the names of Sedlmayr’s killers in compliance with the German law that protects the privacy of individuals.
German courts have reasoned that criminals are no longer public figures nearly 20 years after being convicted, and thus should be afforded privacy by not having their names published.
The issue here is whether American-based producers of online media are required to comply with foreign restrictions of free speech. As laws regulating the Internet are still evolving, and most of the compliance has been voluntary, we have yet to find a definitive answer to this question.
In the case of Ligue contre le racisme et l’antisémitisme et Union des étudiants juifs de France c. Yahoo! Inc. et Societe Yahoo! France (LICRA v. Yahoo!), LICRA, a French based human rights organization sued American-based company Yahoo! because Yahoo! permitted users to auction off Nazi memorabilia. LICRA claimed that these auctions violated a French law against displaying Nazi memorabilia. LICRA argued that because French citizens could theoretically access and participate in Yahoo’s American-based and -run auctions, the auctions’ content were covered under French law, and thus illegal. A French court ruled in favor of LICRA.
Yahoo!, instead of appealing the French court’s ruling, sued LICRA in the United States, arguing that the organization had violated Yahoo’s First Amendment right to free expression. (See Yahoo! Inc. v. La Ligue Contre Le Racisme et l’antisémitisme, 433 F.3d 1199 (9th Cir. 2006).)
Yahoo’s case against LICRA was eventually dismissed by the federal court in the Northern District of California on an order from an en banc panel at the Ninth Circuit Court of Appeals. The appellate court determined that it lacked personal jurisdiction over LICRA. This decision overturned an earlier finding that LICRA had violated Yahoo’s First Amendment rights of free expression.
As it stands, American courts are not even sure if they have jurisdiction over foreign entities that wish to restrict the expression of American-based companies. This is a story worth watching.
Thus far, Wikipedia has asserted its right to free expression and not removed the names of Sedlmayr’s murderers from its English article.