Legislating the Tower of Babel: international restrictions on Internet content and the marketplace of ideas.

• Author: Sutton, Michael F.

1. INTRODUCTION 418 II. FOREIGN THREATS TO FIRST AMENDMENT PROTECTION OF ONLINE AMERICAN NEWS CONTENT 419 A. Differing Standards of Speech Protection 421 1. Defamation 421 2. Liability of Internet Service Providers 422 3. International Effects on State Law Protection of Speech 423 B. Foreign Criminal Liability for Speech 425 C. Disproportionate Impact on Small Publishers and Individual Content Providers 426 D. Additional Problems 428 III. THE NEED FOR INTERNATIONAL AGREEMENT ON PROTECTION OF SPEECH 429 A. The Threat of "Watered-Down'" Speech 429 B. Enforcement of Foreign Judgments 430 IV. A PROPOSAL FOR SPEECH LAW HARMONIZATION 431 V. THE FCC AND DOMESTIC MEASURES 435 VI. CONCLUSION 437 I. INTRODUCTION

   New technologies that transform the way people communicate worldwide perpetually create new challenges for the protection of free speech in America. The First Amendment was written during a time in which the printing press, the quill pen, and word of mouth were the only viable methods of spreading information. In spite of that, judges, lawyers, and politicians have reinterpreted and reenvisioned the First Amendment as applied to new media, including technological advances of the twentieth century, such as radio and television. This flexibility of the First Amendment's application has been one of its greatest strengths. (1) The Amendment's adaptability may derive from the simplicity of its message: citizens should be free to produce and share political speech and social views without fear of government interference. (2) So long as this principle can be applied to new technologies, the First Amendment thrives.

   However, the modern innovation of communication via the Internet strains that fundamental idea. Unlike prior advances in communications technologies, the Internet allows individual users to reach an international audience virtually instantaneously. Posting information online allows its users to transmit content from country to country just as effectively as distributing that content within the confines of one's own neighborhood. The First Amendment may prohibit federal and state governments from unduly hindering civic debate, but it can do nothing to similarly prohibit foreign governments from taking even more extreme measures, such as placing an outright ban on Internet speech when that content is distributed within foreign borders. Thus, the benefit of the Internet's broad reach is paradoxically also a disadvantage in terms of First Amendment protection.

   The limitations to the First Amendment's application to the Internet are especially ironic, given that the Internet is perhaps the most democratic medium of speech to date. (3) To spread information via the Internet, one does not need any significant financial capital, a workforce of employees, skilled knowledge, or special equipment beyond access to a computer and some rudimentary skills to operate it. The Internet thus has the potential of enabling individuals to voice their ideas regarding any issue--a power traditionally held by only those who had the money and resources to print publications or to broadcast over the airwaves.

   It remains to be seen how, if at all, the First Amendment will shield American online content from foreign legal restrictions on speech. This Note details several international threats to American-originated Internet content. After analyzing these potential hazards to American content providers, this Note suggests some possible solutions or approaches to dealing with the problem, whether through international law and diplomatic measures, domestic strategies, or a combination of both.

2. FOREIGN THREATS TO FIRST AMENDMENT PROTECTION OF ONLINE AMERICAN NEWS CONTENT

   Domestic news agencies are progressively using the Internet to increase readership and viewership, presenting alternative formats of news presentation, and supplementing news content that is already available in print or via broadcast. However, information posted online has an international reach, making it subject to the domestic laws of each nation where Internet users can access the material. (4) The consequences for American news content providers are serious, since the Internet disseminates content to countless foreign jurisdictions. While domestic news agencies enjoy the high standards of protection of speech the First Amendment grants when content remains within U.S. jurisdictions, this protection is undermined when that speech travels beyond the borders of the United States via the Internet. (5)

   Moreover, the international community does not share any common method for dealing with conflicts of laws problems. (6) Thus, the methods utilized by any given foreign jurisdiction to resolve international legal conflicts related to Internet speech may differ greatly from another country's means for resolving the same type of conflict. (7)

   Without any assured protection from liability, the online distribution of news originating from American news organizations can expose those news providers to potential litigation in nations that offer far less protection of speech than does the First Amendment. Thus, American content providers who are accustomed to making prepublication editorial decisions based on known First Amendment protections may unwittingly run afoul of the libel and defamation laws, or even criminal laws, of any country whose citizens have the capability of accessing the information.

   In light of the unique capability of the Internet to allow news to be disseminated freely without regard to national boundaries or foreign laws, news organizations that have traditionally operated domestically must now adapt in order to face potential international challenges to content. For example, providers may choose to alter their editorial decisions, change their selection of content, and increase their understanding of what might cause them to incur liability. Yet these very changes in content that might allow American news agencies to avoid foreign liability might also render futile the First Amendment's core purpose of encouraging spirited, open debate.

   Since the First Amendment cannot effectively protect news providers when their content reaches audiences beyond American borders, some measure of extraterritorial protection is necessary to maintain the freedom news providers enjoy in choosing content when they distribute news domestically. Therefore, the United States should seek to promote international agreement in order to allow American news organizations to operate internationally without being hindered by the heightened liability imposed by countries that offer the least protection to news providers.

   Of course, the First Amendment does not require the government to actively do anything to promote speech; it only proscribes the government from unduly interfering with speech. (8) Although this would seem to suggest that there is no constitutional imperative that the government promote or even participate in an international agreement on Internet content protection, governmental inaction would effectively subvert the intent of the First Amendment by allowing other countries' governments to prohibit American speech that the American government itself cannot. In order to preserve the integrity of the First Amendment's goals, the United States should be at the forefront of advocating the adoption of an international agreement for the protection of online content.

   1. Differing Standards of Speech Protection

      Perhaps the greatest problem posed by liability for online content is the uncertainty content providers face about international standards of speech protection. Most content providers have at least a general awareness of what constitutes protected speech in their own countries and the potential consequences for publishing unprotected content. However, foreign legal standards of speech protection are likely to be entirely unknown to any given publisher. This problem is amplified by the fact that content on the Internet may reach not merely one or two other countries, but potentially every nation in the world. The contrast between the countries that provide the most and least protection for certain types of content may vary widely.

      1. Defamation

         As an example of one such difference, the First Amendment affords media defendants in the United States a greater level of protection from public figures' libel claims than many foreign laws would grant media defendants in other countries. In particular, plaintiffs who are public figures and bring claims of libel in U.S. courts must overcome the actual malice barrier to recovery established in New York Times Co. v. Sullivan. (9) Under New York Times Co., in order to pursue a defamation claim in the United States, a plaintiff who is a public figure must prove "actual malice" on the part of the defendant. (10) The actual malice standard demands that the plaintiff prove the defendant published the disputed statement with knowledge of falsity or in reckless disregard of whether the statement was false or not. (11) In addition, the plaintiff must prove the existence of actual malice with convincing clarity. (12) Because of this heightened standard of fault, the defendant often prevails in U.S. cases that involve the issue of actual malice.

         Outside of the United States, defamation is often a strict liability tort in which plaintiffs who are public figures need not prove actual malice. (13) This offers an opportunity for plaintiffs to engage in forum shopping by bringing a suit in another country in order to do an "end run" around the First Amendment. For example, a plaintiff could file a claim in England in order to avoid the requirements of the First Amendment, as many plaintiffs already have:

         It is becoming increasingly common for publishers based in the United States to find themselves on the receiving end of a defamation claim filed in Europe. England in particular has been a favorite forum for those aggrieved by an...