Free speech and privacy laws have been at the forefront of legal discussion recently as globalisation has meant an increase in access to the internet worldwide. The internet, in all its glory, is free of boundaries. While this allows for freedom of expression, it also creates a legal dilemma – is the internet bound by law on a country by country basis? If so, how will this be policed?
According to Akyeniz, ‘[the] internet… challenges the notion of nation sates as [it] does not respect territories and has no boundaries, [thus] no single nation state can effectively dominate or control the internet by means of unilateral state regulation” (2009 p. 11). This presents problems for states who have laws that are specific to their culture and history – how can you apply these to the internet when it adheres to no single jurisdiction?
(This is a little boring, but the point is made well).
This was exactly the dilemma for France where websites are prohibited from displaying or selling anything deemed to be racist, such as Nazi memorabilia. However – these are not laws shared by every country and as a result, discrepancies occur.
Yahoo!, a media enterprise based in the US with sub-sites for other countries, found itself in hot water. In 2002, anti Neo-Nazi activist and director of LICRA, Marc Knobel, discovered that Yahoo’s auction site features pages of Nazi-related paraphernalia. Items included “swastika arm-bands, SS daggers, concentration camp photos” (Cohen-Almagor 2011, p.354) and more. A month later, LICRA and two other organisations requested Yahoo! restrict French citizens from being able to access Nazi artefacts available on the English-language action site (Kaplan, 2000).
If Yahoo! failed to do so, they were threatened with a fine amounting to US $96,000 every day they did not comply. Yahoo, as it was US based, appealed to the US courts as they felt the blocking breached freedom of speech laws and was impossible without removing the content altogether.
This is where the lack of transparency in internet regulations becomes contentious. Is it more important to uphold freedom of speech laws, as the site is US based; or is it more important to be sympathetic to French specific laws and their reasons for enforcement?
Despite Yahoo! fighting against the lawsuit, state regulation came out on top. Judge Jean-Jacques Gomez, who was presiding over the case, ruled that Yahoo!’s auction site containing such artefacts were offensive to French history and the website could not allow easy access of this to French users.
Eventually, Yahoo! changed it’s policies and began prohibiting auctions including items associated with hate groups correlated with violence directed at others based on race or similar factors (Cohen-Amalgor 2011). Yahoo removed all items associated with Nazi, Klu Klux Klan and more from their auction sites.
As Scheffel explains, the reach of the internet and the possibilities it presents for cultural intersections issues regarding free speech, constitutional rights and foreign state sovereignty arise (2003). This specific case involves “issues of policy, politics and culture that transcend the jurisdiction of the courts of the United States” (Scheffel 2003, p. 558) and thus presents a new breed of free speech cases.
I definitely feel that this was a good result. Access to racist memorabilia is not necessary and I do not feel freedom of speech rights should override laws in place to protect people from harm. However, there is a fine line between appropriate censorship and unnecessary censorship and this is made even murkier when trying to balance the interests of commercial companies and national governments when enforcing laws.
Akyeniz, Y 2009, Legal Instruments for Combating Racism on the Internet, Council of Europe Publishing, Strasberg
Cohen-Almagor, R 2011. ‘Freedom of Expression, Internet Responsibility, and Business Ethics: The Yahoo! Saga and Its Implications’, Journal of Business Ethics, col. 106, no. 3, pp. 353-365
Kaplan, C 2000, ‘French Nazi Memorabilia Case Presents Jurisdiction Dilemma’, The New York Times, 11 August, viewed 10 April, < http://partners.nytimes.com/library/tech/00/08/cyber/cyberlaw/11law.html>
Scheffel, E 2003, ‘Court refuses to enforce French order attempting to regulate speech occurring simultaneously in the U.S. and in France (Case Note)’, Santa Clara Computer & High Technology Law Journal, vol. 19, no. 2, p. 549-558