TCS Daily

Speak Uneasy

By Tim Worstall - March 29, 2005 12:00 AM

We all agree that bloggers are covered by the First Amendment, yes? That it is one of those God given (OK, constitutional, if you wish) benefits of being an American that one can mouth off about the weather, politicians, actresses' love lives and the perfidy of (insert group here) subject only to the laws of libel and incitement to riot? I, an Englishmen, am sad to have to break the distressing news to you that you are not; you are in fact bound by the laws of many other nations, the laws of all of them in fact, at least when you start writing about inhabitants of them.

This is not about McCain/Feingold and the evisceration of your rights to political speech, that is something that you will solve at home (and I hope with your traditional tar, feather, railroad out of town solution to idiot politicians). No this is about the libel and speech laws of other countries, and you and I are liable under all of them.

Start with this story about Rachel Ehrenfeld and the Saudi Sheik bin Mahfouz, where a book is published in the US, a few copies of which make it over to the UK, whereupon she is sued for libel under the English laws. Whether she did in fact libel the Sheik is not my point at issue; it is that English law has been clear on this for decades. If a copy of a magazine or book arrives within the jurisdiction, then its contents are actionable under English law. If you think this through for a moment it makes perfect sense. Crimes are defined by the jurisdiction in which they take place, marrying your 13 year old cousin might be legal in Arkansas, as Jerry Lee Lewis showed; drinking at 18 is legal in Mexico as Spring Break shows, but that doesn't mean that on return from Cabo San Lucas that a 19 year old can have a drink with Sammy Hagar in New York. Or his cousin. Well, not legally.

Then there is this slightly earlier story from the online journalism review concerning the online archive of a newspaper. What is the governing jurisdiction: the one where the article is hosted, or the one where it is downloaded? The answer appears to be where it is downloaded. To back this point up there is the story of Dow Jones being sued in Australia for an article about an Australian, which while written and published in the US was downloaded in Australia. Dow Jones has just settled that suit a few months back.

So the law appears to be as follows: What you write about Americans is subject to the traditional set of laws that you understand, that there are offenses of libel and defamation and that for public figures they have to show that you actually were malicious for them to be able to sue you. So it's still OK to make fun of Dean the Scream, Gore and the digital brownshirts and whatever it is that Donald Trump has got up to this week, while you have to be a little more careful with the rights of the guy that lives three houses down.

Yet when you write about foreigners, it all becomes a great deal more complicated. If you want to slag off some idiot English writer (me, to offer up an example), you need to know what are the libel and defamation laws in Portugal, where I live, perhaps also of England, where I do business and thus have a reputation to protect. The essential point is that publication is deemed to take place where the download, the reading, takes place, not where you are, or your server. (I would point out that you really, really do not want to get sued for libel in the UK. Not only is it almost impossible to defend yourself, you having to prove that your contentions were correct, but if you lose you have to pay everyone's legal bills, $500,000 minimum, plus damages.)

That is all bad enough, your every word being subject to the rules of the 190 different jurisdictions that allow defamation suits, but it doesn't actually stop there. Your words are subject to all of the rules of the some 200 plus different legal jurisdictions on the planet, at least all of those in which your post is downloaded. As Yahoo famously found out, the sale of Nazi memorabilia is illegal in Germany, so they had to either block their auctions of people selling old uniforms from all Germans, or they had to insist that such things were not sold on their network globally. The same is true of holocaust denial, a crime in Germany. Your writing a post that denies that that gross slaughter happened, if read by someone in Germany, makes you liable to punishment (and however foul I think holocaust denial is, I am with Voltaire, I hate what you say yet will defend your right to say it,), and yes, I can see some in the audience thinking that this is OK, so what if the Illinois Nazi Party can't go to the Oktoberfest in Munich?

The problem is that so many countries have so many such laws and restrictions. Calling Castro or Mugabe a dictator is illegal under their home (self written) laws, so by doing so in this electronic forum I have committed a crime in those jurisdictions. To indicate that Turkmenbashi is the odd sandwich short of a full picnic is a crime in Turkmenistan; to intimate that perhaps Boy Assad is not the best thing since the sliced bread missing from that dejeuner sur l'herbe similarly so in Syria. Yet even those examples are not the worst of it, for I have no desire to travel to any of those countries and it is therefore unlikely that anything will happen.

Where it gets a great deal more scary is in places like France, as the recent row over Jacques Barrot, the French European Union Commissioner, showed. Now remember, this is one of the 25 men who run the entire EU:

        Mr Barrot received a suspended prison sentence for party funding 
        offences, but it was immediately voided by a 1995 presidential amnesty.

One of the conditions of that amnesty was that it was a crime to reveal that he had actually benefited from an amnesty! The story only came out because it was raised in Parliament, and thus privileged, so that the media could report it. It rather diminishes my occasional forays into the noble and ancient art of Frog bashing to find out that they are even worse than we English suspect.

Now I don't want to scare you, but this is an important point, something that someone needs to solve. How it is going to be solved I have no idea, but the situation at present is that your words, your blog posts, your comments added in forums, they are subject to the different and sometimes highly restrictive laws of every jurisdiction on the planet where they are downloaded and read. As I say above I'm not too worried about being chased by the representatives of whichever murderous thug I happen to insult this week or next, but there is one character that strikes the fear of God into me, the English libel lawyer, and everything I write, just as everything you do, is subject to his beady little eye and hunger for fees.

It wasn't for nothing that Private Eye spelt the name of the doyen of the profession, Peter Carter-Ruck, with an F after the hyphen rather than the R. Now that he's dead they actually get quite rude about him.


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