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International Issues

Posting art online makes it available to audiences in other countries – and other legal systems.

The global reach of the Internet is a transformative aspect of the medium.  The work you post online has the potential to be viewed by people all over the world.  It might be created by you in one country, hosted on a server in another country, and accessed by someone in a third country, and involve equipment in multiple countries to complete the transmission.  This is one of the features that makes the Internet a fast and robust information network.

But it also makes it difficult to figure out which country’s laws apply to disputes that might arise.  In the physical world, most events that a person could be sued or prosecuted over happen in a discrete and identifiable location, where only one or two bodies of law could possibly apply.  When multiple states or countries try to claim jurisdiction over a matter, there are often contracts, treaties, or established case law that guide judges in deciding which law governs.

Jurisdiction for Internet-based communication, however, is more complicated, and the process for determining which country’s laws apply to a given situation is not settled.

Traditionally, whether a state or country has jurisdiction over a matter depends on whether the people involved in the matter have significant connections with the country (so that they could reasonably expect to be called before its courts), or whether the matter takes place within the territorial bounds of the country.  (The court asserting jurisdiction must also have authority over the subject matter at issue in the case.)  The difficulty in Internet-based cases is clear: National boundaries do not map onto websites in any regular way, and the degree to which a person has knowingly had contacts with others in a particular country can be difficult to determine.

When courts in the U.S. decide whether they can assert jurisdiction over a person based on online activity, they consider a number of factors, including whether the online activity was interactive; formed the basis of a business relationship or commercial transaction; was intentionally directed to a particular state, especially if the activity constituted marketing that generated sales in the state; was accompanied by offline activity in that state; or was intended to achieve some form of harmful effect in that state.  When determining jurisdiction over a foreign party, U.S. courts use the same type of analysis, returning to the question of whether an exercise of jurisdiction could be considered reasonable.

Foreign courts also look to assert jurisdiction over U.S.-based individuals and corporations based on their online activity.  This can be a particular concern in the area of free expression: artists and others in the U.S. enjoy the strongest free speech protections in the world, but they may find that what is protected in the U.S. is prohibited in other countries.

A significant example of this is the French government’s 2000 prosecution of U.S.-based corporation Yahoo!, Inc. for violation of a French "hate speech" law.  In France, it is illegal to display Nazi memorabilia outside of a museum context, and Yahoo! maintained an auction website that permitted the sale of, among other things, Nazi memorabilia.  Even though the content of Yahoo’s! website was protected by the U.S. Constitution and was directed at U.S. audiences, the French court found that, because the site was accessible in France, it violated French law.  The court ordered Yahoo to make its site inaccessible to French visitors or face a recurring fine.

Yahoo! then sued in U.S. district court in 2001 to prevent the enforcement of the French court’s order.  The district court found that the French order violated the First Amendment and was therefore unenforceable in the U.S., but the French appealed this decision to the U.S. Court of Appeals for the Ninth Circuit.  That court ultimately decided that the case was not "ripe" for determination because the French parties had not moved in the U.S. to enforce the French judgment.  At that point, however, Yahoo! had already taken down the auctions for Nazi memorabilia.  The court dismissed the case on the grounds that the original question, whether the French court could enforce its order to remove the material, was moot.  Thus, while there is no definitive answer to the legal question of whether France could enforce on a U.S.-based corporation a court order that violated that corporation’s First Amendment rights, the practical effect of the 6 years of litigation was to chill the speech of Yahoo! and Yahoo!’s users.

It is important for artists to understand that the question of which country’s laws apply to content posted online is not settled.  Free speech standards, liability laws, and Internet regulations vary from country to country, and content that violates a particular country’s laws may catch that government’s attention.  If you are targeting your work to a particular country, you should investigate that country’s Internet and free speech regulations, so that you aren’t caught off guard if someone decides to go after your work.




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