A Bavarian wake-up call
A German court's conviction of a former CompuServe manager for trafficking child pornography is the cyberspace equivalent of Singapore's celebrated caning sentence. Both case are reminders that U.S. laws don't govern all of the Internet.
In convicting former CompuServe manager Felix Somm of trafficking in child pornography,
 Felix Somm - AP |
While Americans have become used to international extradition in cases involving terrorism, organized crime, and fugitive Nazis, many of us continue to assume that the Internet laws of our land should rule all of the virtual world. In reality, this would be like the Manhattan DA enforcing local New York ordinances in Baton Rouge.
In the absence of consensus at any level of governance in different jurisdictions, the CompuServes of the world must increasingly take matters into their own hands for their own good. And the key to their protection may be as simple as the speed of their response.
Perhaps the best preventive measure against content liability suits such as the Bavarian case can be found, of all places, in copyright law. Although charges involving software piracy and online decency may seem to be apples and oranges, Internet service providers should respond with urgency to allegations in both areas as a show of concern, responsibility, and good faith.
Copyright legislation being debated in both houses of Congress would apply safeguards to ISPs such as America Online if they act "expeditiously" to remove questionable material from their networks once they learn that it may have been illegally pirated. That line of thinking can logically be applied to objectionable content as well.
For example, response time is critical to cases involving injury to reputation. In 1996, Kenneth Zeran sued AOL after an unknown member posted a message on the online service accusing him of selling T-shirts bearing offensive phrases about the Oklahoma City bombing. The postings stayed on AOL for days and proliferated, eventually becoming publicized by a local radio station and resulting in death threats.
As a result, Zeran has accused AOL of negligence--not for allowing the information to be posted, but for failing to respond quickly once its existence was made known.
Free-speech purists would argue against any laws that encourage immediate removal of material before allegations have been proven, saying that such action is tantamount to shooting first and asking questions later. A legitimate fear is that such a practice, if commonplace, would result in a wide chilling effect on the carriage of any material that might be considered risky or risqué.
A parallel model has been long established in print media. Many states allow a fixed time in which newspapers can retract or correct articles to avoid libel lawsuits, such as California's 30-day response period. But that may not be an attractive option for publishing on the Internet, where material can be viewed repeatedly when left posted, unlike the sharp drop in the visibility of a newspaper article after its one-day publication.
Many believe that nothing short of an international treaty can begin to address the Internet and its myriad effects on various societies. The question here, again, is one of time: It took more than a decade to negotiate arms control, and--as we have seen in India and Pakistan recently--a treaty is rarely a panacea.
Others lean toward the formation of regional organizations that adopt laws for nations believed to share certain cultural characteristics, such as the European Union. Yet even among neighboring regions, differences of opinion can be as vast as the Pacific.
On the same day that the Beijing government announced its formal crackdown on the Net, officials just across the Kowloon Peninsula said Hong Kong was exempt from those draconian measures. And only a few hundred kilometers away from Bavaria, a member of parliament decried last week's CompuServe ruling as a "catastrophe."
Even within U.S. borders, Congress and the courts are still trying to sort out conflicting legal rulings in the wake of the demise of much of the Communications Decency Act. Although the Zeran case may go to the Supreme Court, America Online won an unexpected victory when a federal judge ruled that it was not liable for material it carried by gossip columnist Matt Drudge in a $30 million defamation suit filed by White House aide Sidney Blumenthal.
Clearly, something will have to be done. We Americans tend to think of our country as the center of the universe, and our concepts of cyberlaw are no exception. We invented the Internet, after all, and we occupy more than 80 percent of it by many estimates. Besides, it's America--since when do we need a reason to tell the rest of the world what to do?
As it turns out, other countries have some news for us: There is a reason it's called the World Wide Web.
Managing editor Mike Yamamoto owes special thanks to NEWS.COM's Courtney Macavinta for translating the foreign language of federal legislation for this installment of his monthly column.