Once it's on the Web, whose law applies?
Australia court ruling applies its libel law to an article published online in the US. An American court differs.
We were told that the age of the Internet would deliver nothing short of a global revolution, spreading ideas across borderless cyberspace at the speed of thought itself. But a strange thing happened on the way to the promised land.
They came armed with a litigation strategy: If information published in the US could be accessed via the Internet in remote international locations, American publishers could be sued overseas for violations of foreign law. And the First Amendment, the crown jewel of the Bill of Rights and pillar of US press freedom, would not apply in such lawsuits.
Last week, that litigation strategy became an international legal precedent after it was endorsed 7-0 by the High Court of Australia. The Australian court ruled that a Melbourne businessman is entitled to file a local libel lawsuit against Dow Jones, publisher of The Wall Street Journal and Barrons, as a result of information in an article that could be downloaded from Dow Jones's New Jersey web server.
Suddenly, libel law is a speed bump on the information superhighway.
But before the ink on the Australia decision was dry, a federal appeals court in Richmond issued a decision in a similar case - reaching a different conclusion. The court ruled 3-0 that a prison warden in Virginia was not entitled to sue a Connecticut-based newspaper for libel in his home state simply because the Connecticut newspaper's website could be accessed and the article downloaded in Virginia. Instead, if he wants to sue, the court said, the warden must file in Connecticut.
BOTH cases point up the thorny question of jurisdiction - where such lawsuits should be brought and under whose laws - involving a global innovation that belongs to no single nation.
On one side are free-speech advocates who believe freedom of thought and expression are global rights worthy of international respect. On the other side are those who say the US has no right to impose its values on the rest of the world.
"There aren't any easy answers," says Lee Tien of the Electronic Frontier Foundation in San Francisco. "One of the reasons it is especially hard is because the United States has such a dominant role in the Internet and produces so much of the content," he says. "A lot of countries ... would like to stop the flow of information from the United States."
Earlier this year, an American journalist working in Zimbabwe faced two years in prison for allegedly violating a local law that makes it a crime to publish information that turns out to be false. The reporter did not write for local publications. Instead, the information was published in England, in The Guardian, and displayed on its website. The ability to download it gave the Zimbabwe court its jurisdiction.
Although the reporter was acquitted, analysts say the Australian decision can only encourage similar prosecutions.
"It opens up the possibility, if not the probability, that media organizations will face litigation all over the world," says Sandra Baron, executive director of the Media Resource Center in New York. "This decision [in Australia] gives a Western democratic imprimatur to that which the worst dictators in the world would choose to do, which is to prevent reporters from reporting ill about them and their nation."
IN November 1986, Saddam Hussein and the Revolutionary Command Council of Iraq authorized life in prison for anyone who "publicly insults" the Iraqi president. In cases where the insult is deemed "flagrant," the penalty is death.
Some analysts say that under the Australian precedent, even US-based editorial writers who have never set foot in Iraq could find themselves with Iraqi death sentences. Many Islamic countries have similar laws authorizing severe penalties for anyone who disparages Islam. Analysts question whether any critical comment ever posted on the Internet could bring lawsuits and default judgments against people who thought they were protected by Western concepts of free speech.
"This introduces a massive amount of uncertainty into ... publication and speech," says Baron. "This isn't just Dow Jones's problem. It is potentially a problem for anyone who has ever posted something on an Internet bulletin board."
One of the reasons some analysts are praising the Richmond appeals-court decision ordering the libel trial in the newspaper's Connecticut jurisdiction rather than the plaintiff's Virginia jurisdiction, is that it establishes a precedent for solution on an international scale. By requiring libel suits to be in the publisher's jurisdiction, publishers can know in advance what laws they must obey.
Is it reasonable to expect, for example, that editors and reporters at regional US newspapers know the defamation laws in foreign countries where their websites may be viewed? "That just seems unacceptable in this day and age," says Bruce Sanford, a First Amendment lawyer in Washington.
The alternative is that Internet publishers are aware of the potential international consequences of posting on the Web. Some fear the result will be self-censorship. "If every country can apply its own laws to speech coming from the United States then you wind up with a race to the bottom on the part of speakers to tailor their speech to the least tolerant community," says Mr. Tien of the Electronic Frontier Foundation.