Friday, December 13, 2002

Zittrain on the Aussie Internet ruling. Got some excellent e-mail regarding the Australian court decision ruling that Dow Jones may be sued for libel in Australia for a piece published by Barron's magazine, which it owns. The court's ruling, in a nutshell, held that because the piece was available on the Web, it was "published" in Australia just as surely as it was published in the United States. Click here and here for my earlier posts on the ruling.

The most interesting e-mail comes from Harvard Law School professor Jonathan Zittrain, whom I tweaked for not reacting with what I believed was the appropriate level of outrage. Here's his entire e-mail:

I don't see how the court could have realistically decided otherwise without essentially immunizing Internet speech from any legal boundary, while keeping books, magazines, etc., in a separate box. Certainly the U.S. view of its own jurisdiction is broad: if someone far away does something to hurt someone here, and there's any indication that the activity was targeted to the U.S. or even likely to end up here, that's all it takes. (Just ask Manuel Noriega.) I was actually impressed with how solicitous the written opinion is about the burden to someone publishing over the Internet of knowing and hewing to dozens of countries' respective laws about speech. A lot of discussion in the opinion distinguishes a paid-subscription site that actively solicits business around the world from a site that might simply be up and not targeted anywhere in particular -- so there's room for the average blogger to not be hailed into court in Australia for saying the same thing the Barron's article did.

On the actual merits, I think this really is a dilemma: like you, I don't want to see the revolutionary reach of the Internet gummed up by a network of oft-conflicting laws. But the other side is that it's not fair for someone injured by a faraway wrongdoer to have to travel to, say, New Jersey to seek vindication. (At the extreme, one might publish through Sealand and then say, since Sealand bans very few things, that there's no recourse.) One might think that there ought not to be any laws restricting speech at all (the First Amendment certainly says that on its face!), but then the issue isn't jurisdiction, but that any sovereign near or far might complain about speech. The satellite point is an interesting one -- how terrible if each country (or individual homeowner...), with respective airspace going straight up forever, could complain about satellite orbits. But that's too easy: satellite orbits have no measurable burden on life in the country they overfly. (Leaving aside spying.) Imagine one simply wanted to fly planes, or hot air balloons, around the world without regard for boundaries -- somehow a country demanding permission for that doesn't seem so archaic. Balloons and planes can impact the citizens within, giving the country some measure of moral authority to regulate.

Zimbabwe will do whatever it does -- restraint by Australia would bring no particular pressure on that country to refrain from trying impose touch speech laws if that's what it's inclined to do. It's probably worth noting that Dow Jones doesn't care one bit what Zimbabwe thinks about its publishing, since there's no realistic way for that country to make Dow Jones's life hard. Ultimately what would make an adverse judgment in Australia have bite is a bank account or other operation by Dow Jones there -- much more fair game. An attempt to get U.S. courts to execute an Australian judgment against U.S. assets would have to pass some form of first amendment scrutiny. So, so long as one keeps one's arms and legs inside the U.S. car, judgments other countries make about one's Internet speech don't matter so much -- at least if they would not pass constitutional muster here.

Much of this debate seems frozen in 1995 or so. The dilemma of Internet jurisdiction goes back that far, with the underlying Internet technology evolving all the while. The real advance that will impact this debate is the ability of the provider of content on the Internet to actually express a preference for who should be able to see it. If Dow Jones could check a box that said, "This material not for consumption in Australia," it'd be a lot harder for them to cry foul if they left the box unchecked and then had to answer in Australia for it. I think these checkboxes are in rapid development -- they're the sort of thing that a three-expert panel found Yahoo could implement to keep those on French territory largely away from Yahoo auctions that would be banned in France -- and they suggest a world in which really strict countries end up shooting themselves in the foot: if Australia wants to have draconian speech laws, everyone outside will check the "no Australia" box and citizens there will find a much less interesting Internet to surf. I find the prospect of a cantonized Internet horrible, but it may be inevitable, and countries could find themselves under a natural pressure to harmonize their rules about speech so as to encourage Internet speakers not to exclude their citizens from what they have to say. Australia may think that a given article in Barron's is no good, but they're not China -- they wouldn't be pleased to see Dow Jones taking its ball home if it were easy to do. I hate the idea of a "little guy" Internet speaker being cowed into circulating her stuff only to her neighbors -- checking most of the boxes -- so as to avoid faraway lawsuits. But as the architecture of the Internet starts to more and more track that of the physical world, we need either to make a compelling case to Australia to simply change its defamation laws to be a little more lenient, or see that it won't hesitate much to impose its laws as soon as our bits cross its borders.

Perhaps the most frightening aspect of the Australian ruling is that it does make sense. Yes, of course the Barron's article was "published" in Australia. How can anyone argue that it would be wrong for the aggrieved party to be able to sue for libel in Australia? But though not necessarily wrong, it's still bad. As Zittrain himself notes, what we may be seeing is the cordoning-off of the Internet, which would be terrible news for anyone who cares about free speech.

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