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We have a distinct problem with the law that governs the internet. Not which law, for of course that can always be changed. Rather, we have this problem with whose law rules it.
We’re getting this wrong, as two recent decisions from the European Court of Justice (ECJ) show. For they manage, in the different cases, to come down on either side of what is surely the only possible right line.
The essential problem is: who gets to tell us what can be done on the internet? A number of different ways of structuring that power can be thought of.
A legal jurisdiction might be able to say what someone there may do, or read, or see. It could be that we offer such nations the right to determine what may be said or done about someone there, or from there.
We do have a guide to what the system should be, the idea that legal jurisdiction flows over the, well, the jurisdiction. That’s what it actually means: the area over which that justice system has power. Any internet solution that forgets that is both dangerous and doomed to failure.
But that is the mistake that the ECJ has just made. The cases in question concern the right to be forgotten and the right to insult a politician – that second verging on the law of libel.
The ECJ ruled contrarily in the two cases, and this is something that needs to be sorted out at some point.
Where this is read
As background, we have the Common Law idea that libel depends upon where something is read, not where it is printed. This has long been true, as people have found when a few copies of a book make it over the border into England.
Rachel Ehrenfeld, for example didn’t even publish her book in the UK but was still found guilty of libel in an English court – some copies had been brought in. There was a Dow Jones case where possibly the only reader in Australia of a wire story was the person who claimed to have been libelled by it – that was enough to bring the case under Aussie law, not that of the US where it was written and published.
This is how we get to possession of foreign child imagery being illegal – it is being viewed in England so English law applies. All of which seems fair enough. The law in a place determining what may be done on the internet is the law in the place of those doing the doing.
This is what the argument about the right to be forgotten was. The law said that old things, convictions that had been aged out for example, should on application, be expunged from search engines.
You could say history is history, but that’s not the point. Rather, which versions of search engines should have to do the expunging? Google argued, at first, that an application from France should mean Google.fr should be cleaned. This was thought not to be enough. For people can, easily enough, be in France and look at Google.com.
This went around for another go through the courts and the insistence was that some form of geolocation by IP address should be used. Someone in France should not be able to see what shouldn’t be on Google.fr.
This was again thought not to be enough, and instead that the cleaning of that historical record should be global and complete – that French, or European Union (EU), law should have global application, and the relevant jurisdiction was the world.
The dangers here should be obvious. That exposes everything on the internet to every jurisdiction on the planet. If French law applies to Americans in America then why doesn’t North Korean law apply the same way? No one may ever again make the "Kim Young 'Un" joke about the Dear Leader.
Perhaps it’s not a good enough joke to bear repeating but it is a remarkable constraint upon liberty and a gross expansion of the power of any one court. Fortunately, this particular attempt was recently defeated.
It is true that the use of a virtual private network or the like can allow someone in the EU to view a version of a search engine which contains material that perhaps should be forgotten in the EU. But, to paraphrase the ruling, by making it ever so slightly difficult to find it, that’s enough.
Other countries get to live under their country’s law, as they should, Europeans under European law and accepting some slight leakage is the best compromise we can reach.
This strikes me as being the correct result – assuming that we must have something as odd as a right to be forgotten in the first place. Even if we don’t have that, we’ve still got to have some agreement upon the geographic extent of libel laws, those concerning lese majeste (who wants to be banged up for insulting the Thai King, for example?) and so on.
What’s worrying is that, having got this right, the ECJ then went to the other side of that same fence in a case concerning an Austrian politician.
There are laws in that country defending politicians from being insulted – as there are in France, where insult to any public official, including bureaucrats, can be a crime. That rather rules out a large portion of political commentary. The actual insult being complained of was what we in English law would have called “mere vulgar abuse” – something which isn’t libel.
But fair enough, the law there is different. The problem is that this must now be taken down from Facebook globally. We have stepped over to that other side, where an Austrian law, backed by a European court, now tells people entirely out of either jurisdiction what they may or may not do, see or read.
Which is, to my mind, entirely the wrong decision. True, it should be easier – even compulsory – to insult politicians and public servants. Just as there is no universal right to be forgotten. But that isn’t the point here at all. It isn’t which laws we have to obey: it’s whose laws.
The only viable solution I can see is that activities within a specific jurisdiction – whether those activities are publishing, reading, commenting or anything else – are constrained by the laws of that jurisdiction. What happens elsewhere is up to the laws of those elsewhere.
After all, this has always been the historical truth – legal jurisdiction is defined by the ability to enforce the law. This is why the very definition of a country and its waters went from one mile beyond the shore to three to 12 and onwards and up to 200 as cannons and the ability to control the seas increased in effectiveness.
Further, we simply cannot have European law defining what Americans may do in America, because if we do, we’re going to have Americans defining what we may do here.
We do need to get this sorted. For, of course, if the internet is subject to the conflicting laws of every jurisdiction on the planet, everywhere on the planet, then either we can’t do anything on it or we’ll have no law upon it at all. Neither of which is going to be of any great help.
The answer is that old historical one, even for something as new as cyber space. The law of a place stops at the edge of the nation. That’s the very meaning of the word jurisdiction in the first place.