Global web law a thorny issue

By PETER GRIFFIN

Your every move on the internet may soon come with a clear set of legal guidelines if a global treaty being hammered out by 52 countries gets the seal of approval.

Along with freeing up the worldwide flow of information and creating a virtual marketplace for business transactions, the internet has blurred the lines of legal jurisdiction, leaving a big question mark over which laws apply to whom - and where.

The legal issues encasing the web weigh heavily with a diverse collection of lawyers, lobby groups and big-business representatives who met at The Hague last month, keen to have their say on a draft treaty that will chart the direction of e-commerce and life on the web in general.

New Zealand expects to join the process early next year.

Once again, negotiations ended unsuccessfully as a number of diverging opinions were expressed on a treaty that will effectively require courts to enforce foreign judgments on actions that may be legal under local laws.

In theory, a New Zealand court could enforce legal decisions handed down in a country such as China, which has harsher laws in many areas.

Wellington lawyer David Goddard, who was at The Hague, said finding common ground among the negotiators was near-impossible.

"When you have 50 people in a room all with different ideas of what's best, you get nothing.

"The treaty doesn't impose global rules on the laws of individual countries. Instead, member countries would follow rules on jurisdiction and agree to enforce foreign judgments - doing anything else would see too many countries opt out."

At present, said Mr Goddard, whether dealing with goods bought from online stores or comments posted on websites, courts in different countries made rulings based on domestic law, private international law and international treaties. As a result, legal decisions could vary greatly.

The treaty creates "white-listed" laws that all member states agree to enforce and "black-listed" laws that remain no-go areas.

The most contentious issues will fall into a legal grey area, where judgments are likely to be made case by case.

But before member states get around to ratifying anything, they must agree on treaty terms, and that has eluded them since 1992.

Ultimately the rule-making could see a frosty standoff between the United States, the gatekeeper of e-commerce which usually settles jurisdiction issues case by case, and the EU nations, which have rules governing transactions.

So far just a handful of high-profile cases have highlighted the complications of applying jurisdictional law to the internet, including last year's Nazi memorabilia case in which a French court threatened internet service provider Yahoo! with hefty fines for listing Nazi relics on its website.

French hate-speech laws disallow the trading of Nazi items within France and as the website was accessible within the country, the court claimed Yahoo! was violating the law.

Yahoo! first tried to withdraw the items from its French site. Then, threatened with a fine of $US14,000 ($34,400) for every day the items remained posted on the US site and amid growing public outrage, they were removed altogether.

The case indicates what could happen under the proposed treaty where France might expect US courts to uphold a ruling that would never stand up under US law.

Mr Goddard said countries could play their trump card under the treaty in the form of public policy exemptions - "things that are so fundamental you protect them at a constitutional level," the American First Amendment being a prime example.

But just what was exempt would raise other complicated issues.

Many fear that internet content companies and online retailers would simply restrict access to internet users in countries that have stricter laws, to avoid any legal backlash - a move free-speech activists and consumer groups say would stifle the growth of the internet.

"You'll get some companies who will say, 'We won't deal with consumers in jurisdictions that are so small it is not worth us investing in managing the risk of being sued there'," said Mr Goddard.

"So you protect these consumers and yourself by not giving them the choice of buying your product."

A host of consumer groups, free speech activists and business forums claim the treaty will therefore snuff out the liberal nature of the net, hindering the growth of e-commerce.

James Love, director of the Consumer Project on Technology, summed up The Hague conference: "In a nutshell, it will strangle the internet with a suffocating blanket of overlapping jurisdictional claims; expose every webpage publisher to liabilities for libel, defamation and other speech offences from virtually any country; effectively strip internet service providers of protections from litigation over the content they carry."

Mr Goddard said the treaty negotiations also divided the IT industry, which listened to various internet infrastructure companies express concern that they would be expected to police the content they carry, a huge task that would add great cost to delivering e-commerce.

But the idea of a global treaty appeals, in particular, to copyright holders - already shaken by Napster's flouting of established laws - who want to improve their ability to enforce copyrights worldwide.

Mr Goddard said attempts to find the right answers were futile because the world did not yet fully understand the questions the internet and e-commerce presented.

A ratifiable treaty was still some way off, he said.

"We need to moderate our ambitions. We'll agree on the uncontroversial things and over the next two years we'll work to see if we can achieve more.

"If we try for a once-and-for-all convention in the next couple of years, we'll come up with something that never comes into force."

* Tomorrow in Forum, two lawyers examine the implications of global internet law.

World Intellectual Property Organisation

Consumer Project on Technology

Draft Hague Convention Issues Paper

Ministry of Economic Development