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Friday, November 13, 2009

Cross-Border Speech Conflicts

According to this report, two German nationals who were convicted of murder and have served their prison terms have sued the Wikimedia Foundation to have their names expunged from the English language version of an article on Wikipedia relating to the victim.  The plaintiffs have already successfully sued for the same relief with regard to coverage of their crime in German media.  Germany's privacy law apparently provides for such relief, under a high court ruling from 1973.

Cross-border speech conflicts of this sort have become increasingly common in the Internet age.  The report references the case involving an order by a French court enjoining Yahoo! from permitting the auctioning of Nazi memorabilia in France.  So-called "libel tourism," where a plaintiff sues for defamation in a jurisdiction lacking Sullivan-like protections (typically the U.K.) seeks to enforce the judgment in the U.S., has also arisen with some frequency.  Several courts in the U.S. have refused to enforce such judgments.  A few state legislatures have enacted laws prohibiting courts from enforcing certain foreign libel judgments.  Congress is currently considering libel tourism bills that would bar enforcement of foreign judgments and perhaps provide a cause of action for American defendants.  Meanwhile, across the pond, British officials are considering changes to defamation law that would prevent manipulation of its courts by defamation plaintiffs. 

These and other cross-border speech conflicts are complicated by a number of issues, including the lack of global speech and privacy laws, the uncertain "place" of the First Amendment in a digitized and globalized world, the need to develop standards for resolving conflicts among national speech and privacy laws, the "rights imperialism" that may be involved in exporting a single nation's speech or privacy laws to other nations, and the practicalities of enforcement. 

As to the last, it is difficult to see how the foreign lawsuit will provide any meaningful remedy for the plaintiffs in this case.  The Wikimedia Foundation does not appear to have any assets in Germany.  More importantly, it will be practically impossible to scrub the Web, including archival materials, of all references to these plaintiffs.  As Dan Solove explained in The Future of Reputation, this information is part of a permanent chronicle of their lives.   

Posted by Tim Zick on November 13, 2009 at 11:23 AM in First Amendment, Web/Tech | Permalink


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Interestingly, Justice Eady (a prominent English judge who deals with a lot of privacy and defamation cases) will be giving a talk at the University of East Anglia this November. You can learn more at (www.LexFerenda.com). I have to say I am jealous that I won't be there -- this time last year I was living in Norwich and studying at UEA.

Posted by: John | Nov 13, 2009 3:17:34 PM

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