While we all love the idea that there are no boundaries anymore and we can feed the world from our dorm in a little village, unfortunately courts and prosecutors had the same idea and extended their tentacles to cross national boundaries
Remember the days we were all afraid of viruses and Trojans? When your mom warned you about MSN as that friendly bloke could be an adult hoping to get you to undress for your webcam. And, oh horror, that the postmen could serve you a nasty letter from a local copyright organization if your child did some file-sharing.
Welcome to 2012, welcome to a much more dangerous world. Gone are the days of our innocence as every word we utter on the Internetz is scrutinized and could be used against us in a court of law. We used to think we were safe if we complied with the law and hey, that’s not so difficult for most people!
After all, most of us are decent folks and we perfectly know what’s off limits. Well forget about it. Knowing what you can and can’t do no longer safeguards you from the long arms of the law. The truth is that your local laws no longer matter. You can be tried for violating random laws of other nations if you happen to have even the slightest connection with them.
When former German Kim Dotcom sat up a lucrative file sharing service called Megaupload in New Zealand he knew he had to comply with intellectual property rights regulations worldwide. He thought he had done his homework and had put all the required mechanisms in place to satisfy the New Zealand laws.
He never realized that a Virginia, USA, court could issue a decision to seize all his goods, his servers all over the world and arrest him in his hometown in New Zealand. Armed officers arrived in helicopters and dropped into the Dotcom mansion courtyard, not exactly what he had in mind when he emigrated to the Kiwi island.
Why, because the US thinks it controls the .com domains and Verisign is the top level domain issuer and happens to be located in Virginia. Next thing he knew the FBI asked and got full compliance with the New Zealand authorities and the raid on his private residence was a reality.
Now, Kim Dotcom, née Kim Schmitz, was a convicted criminal so the public opinion couldn’t care less. He tried to argue that his services were not that different from RapidShare or YouTube but the public was just as quick as the American court: once a crook, always a crook and living in exuberant wealth didn’t help in getting him the sympathy vote either.
But what about the little guy, British youngster Richard O’Dwyer who started a simple service (TV Shack) which hosted links to other websites where users could access content but did not host any of the content itself. The United States demanded his extradition and again claimed to have jurisdiction based on US copyright laws and once more because Richard used a .com extension putting him squarely under US jurisdiction.
His lawyer is desperately pleading to keep the 23 year old in the UK and argues that he didn’t do more than Google or Yahoo as he just provided links to other websites, but the extradition process is well on its way.
His mom is quoted as saying “If they can come for Richard, they can come for anybody … there are no safeguards for British citizens,” She is right as there is no protection against the long arms of ‘justice’. What would have been a minor misdemeanor and in the UK resulting in a fine, suddenly became a nightmare with a mother afraid that her son will commit suicide in an American jail.
It shows that, if you behave according to the laws of your own country, using the Internet suddenly exposes you to laws all over the world. Having a .com, a .org, or .net domain is sufficient to make you vulnerable to US laws no matter where you are located.
Still doubt that the Internet not only opened up your outlook on the world, but also your vulnerability to laws you never heard of before? Take the latest case dubbed ‘Twibel’ because it involves a tweet whose content is considered libel. The case should be too ridiculous to even reach the courts, but unfortunately, Justice is not only blind but also devoid of any sense of irony.
What happened is straightforward and for regular users of Twitter not remarkable at all:
Lalit Modi, head of the Indian cricket competition, tweeted that New Zealand’s international Chris Cairns was involved in a fraud by rigging a game of cricket. Now I have to admit I’m not the biggest fan so I just assume he took his time to make sure his trousers were perfectly white before doing whatever he should have done, but I understand it’s quite an insult.
Chris, the spotless player, was understandably mad at Lalit, and the tweet was removed within 16 hours. Case closed you would say, but no, Chris hired an expensive law office and went to the UK courts. Now get this clear: someone from New Zealand feels insulted by a Indian official through a statement posted on Twitter which has its shiny new headquarters in San Francisco. Why would a British judge even accept this case?
Well, there is a catch: the tweets were read by British citizens. All 65 of them, to be precise! Nobody was sure but the Indian claimed it were only 35 people and the insulted cricketer apparently thought at least 95 fans from England and Wales were sufficiently interested enough in cricket to have read it. The judge settled for 65 and delivered his verdict yesterday. Lalit, our Indian, will have to pay 90.000 pounds (107.000 Euro) for his 140 inflammatory characters.
His lawyer stated “I think Twitter makes a big difference because the whole point about Twitter is that it goes viral and it goes around the world and that’s the danger.” while we wonder if he is aware that some tweets are read by a lot more than 65 people. This got into the major UK newspapers during the two year legal battle so I guess pointing at the social media for exposing Chris Cairns as a match fixer underestimates the publicity caused by this court case.
Nevertheless it’s an important decision as we can no longer hide behind the right to comment on current events. A tweet could be as important as an op-ed in the Guardian and have the same consequences. The most worrying thought however is that you’re no longer safe if you just abide by your local laws. If your text can cross the national boundaries, so can justice, it seems.
Are you concerned about your freedom to act and speak as you see fit and is correct in the country where you reside? After all, there will always be some law somewhere, which you are violating while using the Internet and I’m pretty sure more than 65 people are reading this.
Author: Max Huijgen
Further reading:
All your domain are belong to U.S.! SOPA just in force!
https://plus.google.com/112352920206354603958/posts/JbiPngv5Yag
http://www.telegraph.co.uk/sport/cricket/9168170/Chris-Cairns-libel-trial-Social-networkers-need-to-take-greater-care-before-expressing-their-views.html
http://en.wikipedia.org/wiki/Richard_O’Dwyer
check the further reading section +Bert Lohmann SOPA did became a reality the moment a .com or .net was considered American jurisdiction.
+Max Huijgen Nail = head "Gone are the days of our innocence as every word we utter on the Internetz is scrutinized and could be used against us in a court of law. We used to think we were safe if we complied with the law and hey, that’s not so difficult for most people!" Websites like Perez Hilton, TMZ and The Onion can say almost anything they want but the little guys get crushed.
Sadly, it seems to be the day and age where money rules all. Oh wait. It has been that way since the beginning of time. Now the money is on the Internetz.
I am actually surprised the Guardian choose to ignore it +Colin Lucas-Mudd
Excellent article. This needs more attention. Thousands of war criminals and people who violated human rights are still safe (make sure you were once part of government). Yet a single tweet or digital copy of a file can get you extradited or fined. There’s also the case of a Dutch businessman who was extradited to Poland for a minor business quarrel decades ago. Military cargo planes are often used to transport those people so it’s kept out of sight of the general public
Hi, +Bert Lohmann I have one 🙂 What´s the question?
+Marc Jeuken it deserves a wider audience but I don´t know who would be interested in sharing it. +Mike Elgan +Michelle Marie +A.V. Flox +Mari Thomas +Emmett Lollis +Thomas Morffew +Peter G McDermott +Dirk Talamasca ?
i'd like to share it.
There are not that many international lawyers on G+ +Bert Lohmann What´s your question?
Feel free +Jas Mil 🙂
Great piece +Max Huijgen. Thank you for bringing it to my attention. As to the Guardian, it does find itself bifurcated. You know well where I come down on the libel and slander laws. I know that I'm a trifle contrarian given my interests and associations. The key here, however, is not these particular laws but the extraterritoriality aspects. This is not worrying—it's terrifying.
thanx, already done. you are even interested in int. patents?
what do you think about the indian court, who declared the BAYER medpatent as null and void. can we expect the same courage from african courts (thinking bout hivdrugs)?
+Jas Mil I have written extensively on international patents in november and December.
Really?
I didn´t mention SOPA in this article except as a reference to the new stance of the US legal department on jurisdiction claims on .com, .net etc domains. +Bert Lohmann
With regards to Twibel, it was the first case where a judge ruled on a tweet.
alright, I'll scroll my mouse to death later while going back 4 4 months. poor lil mousewheel…
is there a possibility to spare my rhodent?
And if your country have laws which are protecting you from extradition to a foreign country, Mr. E. Holden from the US-World Police, will soon send you one of his famous Predator drons into your living room.
To cite a well known author: "Ich kann garnicht soviel fressen wie ich kotzen könnte."
justiceLaw.another one: recht haben und recht bekommen sind zwei unterschiedliche dinge
+Jas Mil "Vor Gericht und auf hoher See sind wir alle nur in Gottes Hand"
okay, dann zieh ich ausserhalb der 12-meilen-zone.
Ich hoffe, da gibts schon die verne'sche propellerinsel, sonst muss ich noch auf dem scientologycruiser anheuern…
+Jas Mil I believe a search in G+ like this patents inurl:112352920206354603958 will narrow it down faster than scrolling.
viel bedankt, mille gracie and dōmo arigatōgozaimashita
it boils down to ´thanks´ +Robbie Griffin 🙂
This The key here, however, is not these particular laws but the extraterritoriality aspects. This is not worrying—it's terrifying. by +Colin Lucas-Mudd is the issue. I´m not particularly interested in local laws. Goes with the territory of studying international law. That you can sue everyone over libel in the UK and over a failing appliance in the US, are just particularities as I don´t live in either of these countries. In Germany there are some subjects I can´t blog about, in France I end up in jail after three warnings about downloading and so on. That´s life, but what I don´t accept is that my freedom becomes the lowest common denominator of all local laws!
+RA Sebastian Dosch said under the original share:
In my opinion, the case, as far as I read about it, is clear and justly decided. A person was libelled publicly on Twitter and brought the twitterer to trial. The only tricky problem is to decide whether a British court should be called to adjudicate that case.
In an German approach that is possible: The Bundesgerichtshof (highest civil court in Germany) decided a case of a German resident (not a German citizen, if I remember correctly) against the New York Times. On http://www.nytimes.com the man was mentionend in an article about the Mafia. He was offended and sued the NYT in Germany – successfully. And, as one can easily imagine, you can libel someone in a Tweet as well as in a full article.
Well, such is life 2.0…
Here is the German press report on the above mentioned case: http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=pm&Datum=2010&Sort=3&nr=51134&pos=0&anz=48
And I anwered:
+RA Sebastian Dosch Thanks for the link. In general libel, like other court cases, can only be tried in a court which has jurisdiction over it.
In international law this is a tricky subject, but normally it requires that at least one of the parties has a clear link to the country. Maybe the Bundesgerichthof found residency to be sufficient, that´s actually the default rule.
In this specific case however both parties, nor the content publisher had any legal link to the UK: This is an anomaly in UK law which made it into the ´libel haven´.
The situation is comparable to the Belgium and Spanish system where in extraordinary cases crimes against humanity can be tried without a formal link to the country. However this is based on the assumption that national laws often fail in these circumstances.
It´s hard to make a case for libel as a matter which super seeds the national laws. In earlier cases the UK has ruled based on the damage inflicted in the UK. So there was a relation between the effect of the libel and the country.
However basing it on 65 people who could have taken notice of it in the UK is stretching it beyond the wildest legal imagination.
There will be an appeal and let´s hope this is stopped.
The reason for the German Court to decide this case under German Law was, that according to § 32 ZPO (http://dejure.org/gesetze/ZPO/32.html) any tortious act (as, for example, libel) can be handled in the place where it has taken effect. The only precondition the Bundesgerichtshof made was, that the event needed to have a relation to Germany – which was the case.
+RA Sebastian Dosch " it has taken effect." that´s the key here. How much effect do you need?
This was all quite easy in the old days. When ´Die Zeit´ published something it was clearly done by a German paper and it took effect in Germany.
Next step it´s written in the same newspaper but the ownership transferred to a French media conglomerate. Okay, says the judge, still a German newspaper with regards to the language, the readership, the ads, the business model etc. I can follow the reasoning.
Now we have a case where you publish it in a Vietnamese newspaper, you (a German I presume) insult an American. Did this cause effect in Germany?
The UK judge said yes because somewhere between 35 and 95 copies of the newspaper were used to package some fish on a plane to Germany. Nobody knows if they have been read.
The judge settles for 65 fish and chips packages and considers it a German case.
Would you agree +RA Sebastian Dosch