<nettime> Even More Yahoo

[Curt Hagenlocher <curth@motek.com>]

>From today's (print) Wall Street Journal:

	BRUSSELS -- European Justice Ministers signed off on a
controversial law that subjects anyone selling goods or services on the
Internet to the laws of each of the European Union's 15 member states -- a
move some fear will discourage dot-coms from doing business in the EU.

	The decision concerns the so-called Brussels Regulation, which
sets rules on where disputes between consumers and busi- nesses located in
different countries should be settled.  The text adopted yesterday --
which essentially updates existing law to take account of electronic
commerce -- would allow European consumers who order goods or services
from a non-EU business over the Internet to sue the vendor in their own
national courts.

	The European Commission welcomed the decision -- which finalizes
the law, to take effect in March -- saying it will protect the rights of
online consumers.  "It is a regulation that we need," said Leonello
Gabrici, a commission spokesman.

	But Mike Pullen, a British lawyer who lobbied for a less-
restrictive law, said the regulation will have a chilling effect on the
development of electronic commerce in Europe and prompt some online
retailers to avoid consumers in some EU countries. He cited as an omen of
troubles ahead a French judge's recent decision to order Yahoo! Inc.,
Santa Clara, Calif., to prevent users of its Web portal residing in France
from viewing Nazi material on Yahoo's site.

	While the French case is among the first in which a court has
claimed jurisdiction over a foreign Web-site operator, Mr. Pullen said it
foreshadows "exactly what will happen" under the Brussels Regulation.  
That's because the Brussels Regulation would allow EU citizens to invoke
local laws that run contrary to the laws of the country in which the
business is incorporated -- unless the business refuses to deal with the
consumer.

	"You're going to start seeing disclaimers like they have in the
United States," warned Mr. Pullen.  "If I [am operating a business in
France and] don't like certain aspects of Greek consumer law, I'm going to
say we don't trade into Greece."

	Consumer groups were also unhappy with yesterday's deci- sion, but
for different reasons.  "It's not as specific as we'd like it to be," said
Machiel van der Velde, a lobbyist for the European Consumers'
Organization, which wants consumers to enjoy the same protections in
cross-border transactions that they enjoy when shipping locally in a
conventional, off-line environ- ment.

	The regulation stops short of applying a blanket extension of
national law beyond national borders.  A consumer in Germany, for example,
can't sue a foreign Web-site operator simply for offering 2-for-1 deals or
steep discounts -- advertisements that are illegal in Germany.  A contract
must actually be concluded before the German could sue the foreign
business in German courts.

--

Some ideas:

1. In asserting national sovereignty over the wants of multi- and
metanational corporations, these rulings go against the spirit of the WTO,
which I'm sure many will see as welcome.

2. On the other hand, the Internet is an environment not controlled or
represented by any single corporation that simply does not see
international boundaries.

3. The combination of government and business poses a much greater threat
to personal privacy than either force alone. Governments are, at least
today, somewhat reluctant to gather a lot of personal information about
their citizenry.  But by passing laws that encourage or require businesses
to gather this sort of data, government has ensured that it is a mere
subpoena away (if even that).

4. The only way to prevent a Frenchman from downloading "Nazi"
information, or an Alabaman from downloading pictures of sodomy, or an
Iranian from downloading a copy of "Satanic Verses" or someone in China
from accessing information which is critical of the government in Beijing,
or for someone to download a movie for which Jack Valenti hasn't been paid
is to rearchitect the relevant parts of the Internet.  If the locale of
the user is sent with each http request in a secure manner, for instance,
then this becomes possible.

5. For the government of France to enforce French laws on a company which
is not doing business in France -- say, for example, that Yahoo did not
have a French subsidiary -- would be more difficult.  There would have to
be treaties, or reciprocal agreements with other countries, to enable
this. To a certain extent, this is already happening on the matter of
international computer "crime".

6. If the citizens of France feel strongly enough that their fellows
should be prevented from accessing Nazi information over the Internet,
then they will probably not object to giving up some of their privacy to
prevent this.  Neither would they be opposed to creating a structure or
engaging in reciprocal agreements that also prevents residents of Kentucky
from downloading pictures of bestiality from French sites.

7. I certainly don't mean to pick on France in this regard. The US
government has been a trailblazer in asserting the power of its national
courts in international situations.  American troops entered Panama on the
basis of a US court indiciting Manuel Noriega for drug smuggling.  More
recently, an American court found that the country of Iran was liable for
the ordeal of US hostages in Lebanon, and imposed a judgement of several
million dollars against that country.  More ominously, the US government
accepted the judgement on behalf of the government of Iran, with the
expectation that it would recover the funds from Iranian assets frozen in
the United States.  In conjunction with the Panama action, this leaves
open the possibility that, in the future, American troops might be used to
collect on fines imposed on foreign entities in US courts.  (Of course,
some would say that the US and its military have frequently engaged in
just this sort of "collection" activity on behalf of American corporations
in the past.)

8. Internationalism has always been a bogeyman of the right.  Now that
corporate globalization and cultural imperialism have succeeded in
creating a contemptible variant of internationalism, it's not in very good
odor on the left, either.  The Internet is the most noncommercial
transnational *thing* we have, and it would be a shame for national
borders to become a permanent feature of the Internet landscape.

--
Curt Hagenlocher
curth@motek.com





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