On Nov. 20, a French court ruled that Yahoo! – the popular Internet portal — had to bar its French users from visiting American sites that displayed Nazi memorabilia. If not, Yahoo! would have to pay a fine of 100,000 francs (about $13,000) a day. Yahoo! is trying to get a U.S. court to rule that the French judgment is not enforceable but, meanwhile, it has acquiesced – in a complete reversal of its previous principled stand.
Previously, Yahoo! had barred sales of Nazi memorabilia on its French language site, complying with French law, but not on its English-language U.S. site – to which French citizens, like everyone else, have access.
Obviously, selling Nazi paraphernalia is a disgusting practice. In the U.S., we allow it. In fact, with our tradition of free speech and pluralism, we allow all kinds of nasty ideas to be spoken and transmitted and sold. Europeans and Asians often have a different view. What is troubling is that the power of the state in these less enlightened parts of the world is beginning to set the tone – and the rules – for the Internet.
The question, to put it baldly, is whether cyberspace will look like France or like the United States.
In an excellent article in its Jan. 13 issue, The Economist magazine, which prides itself on being a "non-American" voice, sounded the alarm over growing restrictions of freedom on the Internet. It provided many troubling examples:
"In Britain, the Regulation of Investigatory Powers Act now gives the police broad access to e-mail and other online communications. South Korea has outlawed access to gambling websites. The United States has passed a law requiring schools and libraries that receive federal funds for Internet connections to install software on their computers to block material harmful to the young. … China recently published sweeping new rules that require Internet companies to apply for a license and hold them responsible for illegal content carried on their websites."
The thorny issue with the Internet is often whether it is a common carrier, like a long-distance or local telephone company, and thus not responsible for what might be said over its lines or a medium like a television network or a magazine, which can be sued for anything spoken or written, even a letter to the editor. The answer is that the Internet is both, though even the European e-commerce directive limits the liabilities of companies that act as conduits.
But even so, the Yahoo! case and others like it raise another question: Whose laws should apply on the Net? Those of the most retrograde and restrictive countries, or of the most open? It seems to me that the French have a perfect right to regulate French sites – but not American sites. But is there really a distinction?
This is not simply a legal question. It is a social and cultural one. For those of us who believed that the Internet would bring enlightenment and freedom to the darkest corners of the world, recent developments have been very disheartening.
A. Michael Froomkin, a law professor at the University of Miami, put it best, uncovering the "great irony about the Internet." Paraphrasing him, The Economist wrote: "What was supposed to be an anarchistic and liberating technology may in fact make the world less democratic, by forcing a huge increase in legal harmonization."
That word "harmonization" should raise a red flag every time you read it. While it may seem benign, it represents the efforts of governments, as well as other entrenched interests, to enact multilateral deals – in other words, to prevent competition, in either ideas or commerce – and to foist the worst sort of restrictions on citizens of countries that deplore them.
That seems to be what is happening in the wake of the Yahoo! case. A little over a week ago, Yahoo! put into place new guidelines "prohibiting items that are associated with groups deemed to promote or glorify hatred or violence … [including] such items as Nazi militaria and KKK memorabilia."
Again, let me stipulate this is horrible stuff, but, in the United States, it is perfectly legal to sell. Yahoo! – like many other Internet firms – had consistently taken the position that it was an intermediary (again, more like a common carrier) without editorial responsibility for the content of its sites, which, after all, are broadly open to the public. As Jean Eaglesham wrote in the Financial Times: "The self-censorship marks a U-turn by Yahoo!, which had opposed on principle [the] French court ruling."
As The Economist: "Will these trends turn cyberspace into a place stuffed with even more rules than the real world? … Will litigants and governments pursue service providers they don't like, leading to an ever-tighter standard for protected speech?"
Right now, it is hard to say. But the portents are not good when we see France, with its continental disdain for freedom and libertarian ideals setting the rules for America's wonderfully edgy, open, independent Internet companies.