It's a Mad, Mad Internet: Globalization and the Challenges Presented by Internet Censorship

By Bauml, Jessica E. | Federal Communications Law Journal, May 2011 | Go to article overview

It's a Mad, Mad Internet: Globalization and the Challenges Presented by Internet Censorship


Bauml, Jessica E., Federal Communications Law Journal


"It is very difficult to do business if you have to wake up every day and say 'OK, whose laws do I follow?' ... We have many countries and many laws and just one Internet."--Heather Killen, former Yahoo! senior vice president of international operations, 2000. (1)

I.   INTRODUCTION
II.  THE PROBLEM
     A. The Challenge of the Internet
     B. The Great Firewall of China
     C. Domestic and International Laws on Freedom of
        Speech
     D. Corporate Complicity
III. PROPOSALS ADDRESSING CORPORATE COMPLICITY
     A. International Law
     B. The Global Online Freedom Act
     C. Global Network Initiative
     D. The Global Compact
     E. Changing Gears in Combating Corporate Complicity
IV.  MOVING FORWARD: SCALING THE GREAT FIREWALL OF
     CHINA
V.   CONCLUSION

I. INTRODUCTION

On April 11, 2000, the Tribunal de Grande Instance de Paris summoned Internet content provider (ICP) Yahoo! into French courts for allowing the sale of Nazi memorabilia on its website, Yahoo.com. (2) Marc Knobel, a French Jew, had previously discovered the offensive material and requested that Yahoo! remove it. Yahoo!, however, refused on the grounds that doing so would violate its constitutionally protected free speech. As a result, the company was summoned into French court. The French court ultimately held that allowing the sale of Nazi merchandise on Yahoo.corn violated French criminal laws prohibiting the sale of Nazi goods, (3) and, because Yahoo.com was either directly accessible to French citizens (or indirectly through Yahoo.fr, the French portal), the court ordered Yahoo! to block all access through either portal. (4)

Yahoo!, Inc. v. La Ligue Contre Le Racisme et L'Antisemitisme was a landmark case. It unearthed the complications that arise when multiple countries seek to regulate a borderless network like the Internet, which has the capacity to transmit instantly information all over the world--information that can be simultaneously legal in one country and illegal in another. (5) The crux of the Yahoo! case was determining where to draw the line between two countries seeking to regulate information on the Internet.

Instead of appealing in the French courts, Yahoo! returned to the United States to request relief in federal court. To abide fully by the French order, Yahoo! argued that it could not simply block access by French citizens to the illegal goods, but would have to block everyone's access, including American citizens--"Asking us to filter access to our sites according to the nationality of web surfers is very naive." (6) Unlike makers of tangible products (such as motor vehicles), Yahoo! argued that it provides an intangible product that could not easily be individually tailored for different markets, as "it had no power to identify where in the world its 'customers' were from and thus no control over where in the world its digital products go." (7) Yahoo! contended that it should not be required to censor itself in order to comply with French laws. The company stated, "We hope that a U.S. judge will confirm that a non-U.S. court does not have the authority to tell a U.S. company how to operate." (8) The district court overturned the French court's ruling on the grounds that, while a U.S. court typically defers to foreign orders, a federal court could not condone a violation of the Constitution or the laws of the United States. (9)

LICRA appealed the district court's decision to the Ninth Circuit, which, in 2006, reversed and remanded the case. (10) The Ninth Circuit's decision completely skirted the legal question, reversing purely on procedural grounds, (11) an outcome that illustrates the murkiness that still exists in grappling with this complex legal quandary. Interestingly, the court's opinion noted its uncertainty on the extent of Yahoo!'s "First Amendment right to violate French criminal law and to facilitate the violation of French criminal law by others. …

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