International Liability for Internet
Content: Publish Locally, Defend
For decades, international treaties have promised freedom of expression “regardless of frontiers.” 1 The global Internet finally has provided a means by which this promise may be achieved. Geopolitical frontiers, however, remain crucial to issues of responsibility and risk even on a borderless medium such as the Internet. This is particularly true for U.S. media companies that now find themselves being sued or prosecuted in foreign courts for libel, invasion of privacy, or other causes of action based on content accessed through the Internet outside of the United States.
The prospect of foreign litigation is a constant challenge for publishers because of the complexity, inconvenience, and expense involved in defending an action outside one's home country. But these traditional concerns pale next to the greatly increased risk profile of publishing on the Internet at all because of the growing potential for a foreign court or prosecutor to seize jurisdiction over an Internet content dispute and apply local law that does not protect speech as robustly as does U.S. law governed by the First Amendment. International plaintiffs, governments, and courts have begun using the Internet to manipulate jurisdictional principles to avoid application of the First Amendment to claims against the U.S. media's publication of content through the Internet.
Recent cases from Australia to Zimbabwe highlight the danger of the exercise of international jurisdiction against foreign Internet publishers. A just-commenced consultation by the European Commission, moreover, proposes applying the law of the plaintiff's country to all Internet-related tort disputes, regardless of where the content is published, accessed, or hosted. The problem of foreign Internet content liability is most vexing for U.S. media companies