The
legal implications of the Yahoo! Inc. nazi memorabilia dispute: an interview with Professor
Pierre Trudel 
«
The
censuring techniques are a poor way of regulating conflicts generated by the
circulation of information on the Internet
»
Pierre
Trudel, Professor of Law -
University of Montreal
Email:
trudelp@droit.umontreal.ca
[Juriscom.net] Is
there a risk that judges will systematically affirm their jurisdiction and
apply local regulations in cases involving foreign-based sites? What would be
the consequences?
[Pierre
Trudel] Judges
on the most part have the tendency to declare themselves competent when they
have to give a ruling on a damage felt within their jurisdiction. The Internet
is capable of functioning anywhere and for a judge to decline
jurisdiction is to admit that the judicial system does not have the
legal means to halt an illegal activity.
Obviously,
the effects of generalizing similar decisions are important. Such a thing
would cause a certain uniformity of Law: by declaring themselves competent,
the judges could reach decisions in
a manner that would avoid causing confusion. However we could also ask ourselves if the latter would only accentuate
a tendency to revise the rules of law concerning censorship that are designed
to confront societal risks.
What
consequences does this decision command in an international context?
With
regard to the Internet, decisions rendered by tribunals of dominant countries
like France
and the United States often have a lot of importance.
Because of the
global characteristic of the network, solutions given in certain
situation
could
be considered
relevant if applied in other countries.
Can
we speak of an efficacy failure on the part of the law?
It
is more and more apparent that the law as it was intended and how it was
applied following the paradigms of state control and positivism, have
encountered more and more problems of effectiveness.
It is indeed,
interesting to note, that the expert report asked for by the tribunal,
stated that it is technically possible to conform to the tribunals order, but
only with regard to a certain proportion of IP addresses (estimated roughly at
70%).
Everything
seemed to occur as if French law was satisfied with a certain degree of
effectiveness: what was important, was not the universal respect of the rule
of law by all of its citizens, but more so to establish an
acceptable level of compliance.
It
is here that there is a hint of a change in this paradigm: The law is no
longer applied to sanction a collection of deviant behaviors, but seeks more
so to assure the lowest possible
levels of
“informational pollutants”.
From the principles that we depend on that show our will to preserve
the fundamental rights or values largely shared in the being of our society,
States must put into place strategies to assure or re-establish equilibrium
[of the law amongst its citizens].
If
this tendency were to be confirmed, it must examine the opportunity and
efficiency of resorting to techniques of criminal law to wrestle against
intentions judged to be unacceptable.
In
the domain of the Internet, characterized by a certain degree of complexity
and destined to experience frequent mutations, regulation is frequently
expressed through more or less formal rules that we often designate under the
terminology known as “soft Law”.
This technique is characterized by the highest level of discretion left
to the debtor of the obligation to attain the thresholds or the results. More
and more, soft Law reveals itself
through texts that announce general principals. In these type of texts,
the actors conserve an important scope of appreciation with regard to the
strategic means that lead towards the researched results.
The State restricts itself to a supervision more or less remote, and it
reserves the possibility to intervene in problematic situations. The
techniques of criminal law are poorly adapted to this type of approach.
Can
the freedom of speech guaranteed under the First Amendment of the U.S.
Constitution be characterised as a "globalizing
norm"?
It
is true that the concept of freedom of speech, conveyed by the American first
amendment, is far from
being adhered to by most of the other nations. However by reverberation,
the norm the least partial to censorship tends to become imposed by de facto,
onto other countries.
With the Internet, it remains always possible that content banished
from a territory will find its source from United States, considered to be an
informational paradise. Moreover, it is unrealistic to think that it would
have been enough to play the rules of international judicial
cooperation, to have the United States halt
an activity judged illegal in other countries.
Because
it presents itself as a difficult environment to control using traditional
techniques of censorship, the Internet requires
most counties to reflect about the opportunity of addressing censorship
using a greater perspective than the one traditionally shown by legal systems
of most countries.
Countries
whose legal systems instinctively consider censorship as a remedy to most of
the conflicts produced by the circulation
of information should review their approaches and
examine the costs to effectively apply their chosen techniques. In
certain cases, we will come to conclude that there exists more efficient
alternatives to combat unacceptable trash such as racism or a defense of
nazism.
Should
we envisage the creation of specific international jurisdiction’s rules with
regards to disputes arising on the Internet?
It
is without a doubt that by favoring methods that take advantage of
the potentialities of the network, we can most efficiently administer
disputes created on the Internet.
Of course, we can agree that international private law keeps to itself
resources and concepts
to resolve the conflicts created on the Internet. The question remains
to know if the legal community of different countries are ready to put into
place the approaches that will obtain rapid, just and effective solutions to
these conflicts.
Should
we consider that the information circulating on the Internet
belongs to a
space outside of national jurisdictions, governed by its own specific modes of
regulation?
In
spite of
their appealing character, claims in favor of a state run legal system
which regulates circulating information on the Web, will collide with many
practical realities.
In
such a case, it is hard to imagine a legal framework that would
tolerate two separate systems for the same information.
How can a State rule which prohibits for example, nazi hate-inciting
literature, have the power to maintain its efficiency to be enforced, if such
a document is admitted
to circulate without any hindrance or risk in cyberspace ?
Telescopically
speaking, the natural ability for information to pass through cyberspace,
insensitive to the political borders and foreign territorial jurisdictions
will become in its entirety, the greatest challenge of informational
regulation.
The law is generally constructed on paradigms that recognize the
autonomy of the territory which it serves and its unlimited capacity to
forbid, by its laws and/or
judicial orders, any discourse that it judges to be abusive.
If a nation’s legal system is unable to be effective, and halt
abusive conduct, then inevitably a crisis of its legitimacy will follow.
Such
a crisis could be resolved by the initiation of other techniques of regulation
considered to be more efficient, and help
reduce the harm caused
to the laws of the state. We could substitute the strategy of “total
eradication”- a rule set to completely abolish
certain law breaking discourses- and replace it with the strategy of
finding “acceptable levels” that society can tolerate.
One
such phenomena illustrates the difficulty of national legislators to maintain
a rule of law which hinders the circulation of information that is considered
inappropriate and progressively more unavoidable. This is why
it is foreseeable
that an increasing number of States will realize that no adequate
system is available to censure the controversial content: states must be
prepared to sharply increase their costs so that they may
effectively censure inappropriate information.
Yahoo!
Inc. argued in its defense that imposing a filtering mechanism would in a
certain way undermine the very existence of the Internet,
"a space of
freedom, hardly receptive to any attempts to control and restrict access".
What do you think of such a suggestion?
This
argument is certainly interesting, but it is difficult to imagine that a
national judge would in the end use it in a decision. By accepting such an
argument, he
would equivocally allow the imperatives of the existing cyberspace
network to prevail on national law.
Moreover,
this argument would be difficult to win over
the commercial sector which dominates the Internet.
These web based commercial services appear not to experience as much
difficulty as it attempts
to “personalize” its contents in order to “better serve” its
visitors.
They have learned how to put into place different tools
used to analyze traffic and transactions for the purpose of favoring
the development of profitable commercial activities.
These initiatives to control and restrict access are not techniques
that are associated with being immoderately alarmed! Then why can’t
we put into place the necessary
technologies to adhere to the obligations pronounced by our
democratically adopted laws?
Obviously,
this would not answer the question surrounding the adequacy of State measures
to censure. Personally, I believe that the censuring techniques are a poor way
of regulating conflicts generated by the circulation of information on the Internet. However, this does not mean that one has to conform to the common
notion held by several groups, that the Internet is technically impossible to
censure.
What liability do portals
have to assume in Canada and, more precisely, in Quebec?
In
the field of criminal law, situated in Canada under the jurisdiction of the
federal Parliament, it is difficult to imagine at this time that the servers
could be held criminally liable. The degree of control that the servers could
exercise on the information that they host is insubstantial to constitute a
criminal intention or omission.
The
question however, is dealt differently in the domain of civil liability. In
the general sense, we observe that certain factors are taken into
consideration when one tries to determine the existence and intensity of
responsibilities assumed by those who participate in the communication of
information on the Internet.
We attach importance to several factors, such as knowing the contents
of the information, and the duty to control this
information through editorial and physical control. Wee also must take
into consideration, with regard to certain types of information, the
questionable expertise of the producer, the type and role of the user, the
context and accessibility of the information.
In
Quebec, the draft bill 161, An Act respecting
the legal normalization of new information technologies,
contains provisions that relate to
the responsibility of intermediaries who are engaged with the
transmission of documents and information. These provisions have a general
application of liability and complement the provisions already existing in
common law. They prescribe a specific regime of liability to certain providers
of service.
Thus,
regarding Yahoo’s controversial services, article 22, paragraph 3 of the
draft bill, announces the following rule concerning liability:
“Similarly,
an intermediary who offers documentary referral services, such as index,
hyperlinks, lists, or research tools, is not responsible for the activities
engaged in using those services. However, the service provider may become
responsible if, upon becoming aware that the services are being used for an
illicit activity,
the service provider does not act promptly to cease providing
services to persons known by the service provider to be engaging in such an
activity.”
As
a consequence, if we can consider this provision as adopted, Quebec law would
enforce a civil liability that would appear very similar to the regime used in
the Yahoo case.
Professor
Pierre Trudel statements as collected by Lionel Thoumyre
Translated into English by Richard
Salis
