ACTA U N IV ERSITA TIS LODZIENSIS
FOLIA OECONOM ICA 167, 2003
Katia B o d a n í
THE CONFLICT BETWEEN FREE ACCESS TO
INFORM ATION A N D THE USE OF FILTERING
TECHNIQUES IN LIGHT OF THE YAHOO CASE
T h e e x p o n e n tia l g ro w th a n d e x p lo sio n o f In fo rm a tio n o n the In te rn e t h a s g iv e n rise to se v e r a l q u e stio n s o f s o c io e c o n o m ic , p o -litic a l a n d le g a l n a tu re, e s p e c ia lly a s r e g a r d to th e is su e o f f r e e a c c e s s to in fo rm a tio n a n d p o s s ib le lim ita tio n s to th is f r e e use. S in c e th e In te rn e t is a g lo b a l o p e ra tin g n e tw o rk e x c e e d in g th e r e -f o r e n a tio n a l te rrito rie s, th e p r o b le m o -f u n iv e r sa l ju r is d ic tio n rises. T he in tro d u c tio n o f filte r in g te c h n iq u e s h a s b e e n in tr o d u c e d to d e a l w ith th is p ro b le m . H o w e v e r th e u se o f filte r in g te c h n iq u e s p o s e s se v e r a l p r o b le m s a s w e ll a n d c a n c le a r ly h a v e a c h illin g e ffe c t o n f r e e sp e e c h a s w ell.
T he exponential grow th o f inform ation 011 the Internet
Since the Internet netw ork was introduced to the general public in the m id-nineties, we have seen an exponential growth in inform ation o f all sorts which is available to Internet users.1 This explosion o f inform ation has given rise to sev-eral questions o f socio-econom ic, political and legal nature.
Indeed, the increasing flow o f inform ation and^ the abolition o f national frontiers have given rise to substantial legal problems."
The Internet is undeniably challenging the laws o f territorial based states because o f its intrinsic borderless character. States are continuously trying to
Vrije Universiteit Brussel, Faculty o f Law, Institute for European Studies, e-mail: kbodard@ vub.ac.be
1 See also B. de Vuyst, K. Bodard, Meta Tag Litigation: An Overview And Sum e Policy
Conclu-sions, E-Law, June 2002, Vol. 9, nr. 2, I Op. (available at:
http://www.murdtKh.edu.au/elaw/issues/v9n2/devuvst92nf.htinl )
2
L. C. LEE, S. J. Davidson, Intellectual Property f o r the Internet, New York, Wiley Law Publica-tions, 2000 Supplement, 56.
obtain som e form o f control on the basis o f their national rules o f jurisdiction on the significant flow o f what is being considered as illegal inform ation according to their national laws. These classical rules o f jurisdiction may lead in practice to the establishm ent o f universal jurisdiction as a general principle, which under the classical rules is on the contrary quite an exception. This in consequence leads also to som e im portant practical problem s as the national rules in different parts o f the world when com pared to each other are indeed often contradicting and therefore com ing into conflict since various states in the world have repeat-edly expressed a dillerent idea o f what is allow ed under f.ex. the free speech concept.
U ndoubtedly the possible conflicts between those different national laws based on the territoriality principle might arise in a great num ber.3 T he conflict between free access to inform ation and possible limits to this free access when based on the concept o f universal jurisdiction raises clearly questions about the legitim ate character o f these limits.
Го m eet the problem related to the different perceptions which exist within the different national states which are put on the forefront through the applica-tion o f the universal jurisdicapplica-tion principle the use o f filtering techniques has been put forward.
T he introduction of filtering techniques: solution to the likely extension o f the universal ju risd iction principle?
The introduction of filtering techniques has been introduced as a solution to deal with those legal rules w hose application is in principle lim ited within the territory o f a state.
Filtering techniques can in first instance be introduced on a voluntarily ba-sis. Several reasons exist why Internet users would want to m ake use o f these kinds o f techniques. This can be to avoid spam, to block certain inform ation, to limit overload in inform ation, to protect children from certain content, and so o n ... These are valid, legitim ate reasons.
H ow ever with the use o f techniques like PICS (Platform for Internet C on-tent Section), ICRA (Internet C onon-tent Rating A ssociation), ..., the standard or
See also our observations in K. Bodard, Global Electronic Commerce: Dealing willi legal p ro b
-lems on an international level!, in Marian Niedzwiedzinski (ed.). Electronic Data Interchange -
Electronic Comm erce, M ateriały IX Krajowej Konferencji EDI-EC, Lódź-Dobieszków 2001, 19-27; and К. Bodard, 'I lie challenge o f global Internet regulation fo r global electronic com-
rating schem e is not defined by the user, but basically by private organizations, which entails the risk o f censorship.4 W hen those rating system s are integrated in Internet brow sers, the risk exists furtherm ore that all sites ‘have to ’ be scre-ened by the criteria used by these system s to avoid being blocked as the possibi-lity might be integrated in those brow sers that Internet users can autom atically block those w ebsites which were not rated by the w ebsite designers according to the criteria as em ployed in those rating schemes. T his as consequence could lead to substantial loss o f incom e resulting from advertising banners on w ebsites as less Internet users would visit those w ebsites.5 Besides as current technology stands, legal inform ation is blocked as well, which m eans that the free access to ‘perm issible’ inform ation is seriously hindered.
A nother problem is that Internet users can be unaw are o f the fact that in-form ation is blocked by their ISPs, either out of a certain policy, either in re-sponse to court rulings or to avoid a court judgm ent. IS P ’s can indeed be ‘for-c e d ’ to blo‘for-ck ‘for-certain inform ation in ‘for-com plian‘for-ce with spe‘for-cifi‘for-c ‘for-court rulings, even when the inform ation they offer is not illegal in accordance with the laws appli-cable to their place o f business. Again the problem o f jurisdiction is apparent here. In most cases ISPs will even react autom atically on an inform al notice and take dow n procedure. Since a lot o f these cases d o n ’t get public, the possible chilling effect on free speech and free access to inform ation might be tar greater than estim ated.
T his issue o f m andatory or voluntarily blocking o f access has been param o-unt in several cases, am ongst which the CompuServe, M itterand, Yahoo, Google and e-Bay cases got w orldw ide attention.
T he blocking of inform ation in Internet ju risd iction cases: the French Y ahoo case as significant exam ple
In the French Y ahoo case judge G om ez ordered on 22 May 2000*’ the Am erican m other com pany to take every m easure possible as to disable every possible access to w ebsites that auction or defend nazi-related item s for the French market. French Internet users could access the inform ation offered by the
4 L. Lessig, Tiranny in the Infrastructure. Tlie CDA was bad - but PICS m ay be w orse, < liltp://w ww .wired.com /wired/5.07/cvber rights.Iitm|>, July 1997, 1-2.
5 M. Klaver, Geen rooie oortjes, Inforniatic & Informatiebeleid, 1998, Vol. 16, No. 3, 5-6. 6 Tribunal de Grande Instance de Paris, ord. Réf. (U EJF et Licra c J Yahoo ! Inc. et Yahoo
France), available at: < http://leLalis.nel/inet/decisioiis/rtfsponsabilite/ord
Yahoo com pany through its subsidiary Yahoo France but also through the direct link offered by Yahoo France to Yahoo.com , and via Yahoo.com . Not only was the local subsidiary therefore targeted, but also the m other com pany which basi-cally directs its service to its Am erican audience.
The report o f the experts in this particular case cam e to the conclusion that only 90% o f the inform ation aim ed at could be effectively blocked on the basis o f geographical location. This criterion poses how ever also som e problem s since it is necessary that an Internet user confirm s that he is a French national or oper-ating from the French territory. This criterion also leaves the question open w hether the French jurisdiction also applies to French citizens w ho are not re-siding in the French territory the m oment they access the Internet.
A lthough a 100% filtering seems not to be possible and neither the origin from where an Internet user accedes the network can be determ ined with abso-lute certainty, it becam e already clear from this specific case that the geographi-cal filtering o f the Internet would increase which is indeed confirm ed by later cases. W here the filtering in itself might not create the greatest problem , the problem may how ever lie in the fact that Internet com panies have to introduce several tens o f filters. W hen this becom es too com plicated, Internet com panies might ju st rem ove altogether the inform ation offered creating a chilling effect on free speech.
Conclusion
As real harm onization o f legal rules will undoubtedly take m ore time than the pace with which the inform ation society has com e to developm ent yet and will in the near and distant future7, the likely chance is that m ore cases will rise that deal with conflicting legal rules.
W hat becam e clear from the French Yahoo case is that the filtering tech-nology is currently not faultless. The risk that too much inform ation will be blocked ultim ately is not im aginary. This in result could have a chilling effect on free speech. The removal o f inform ation altogether has undoubtedly a chilling effect on free speech.
7 P. Sirinelli, L'adequalion enlre le village virtuel el la créalion normative ■ remise en cause du
role de l'Etat? in Katharina Boele-W oelki en Catherine Kessedjian (ed.), Internet. Which Court
decides? Which law applies? Quel tribunal décide? Quel droit s'applique? (Proceedings o f the international colloquium inhonour o f Michel Pelichet), Den Haag, Kluwer Law International, 1998, 20.
It also obliges legal scholars to rethink certain concepts (f.ex. is a revision o f the rules o f jurisdiction necessary or is a re-interpretation sufficient?) and to com e forw ard with solutions adapted to the new environm ent (f.ex. to limit a certain degree o f the free chilling effect which is the result o f the private notice and take down procedures, this procedure should be com plem ented at least by a notice and take back procedure which is integrated in the official legal system applicable to the liability position o f ISPs, and which forms a part o f the co- regulatory system predom inantly present in dealing with legal problem s around technological evolutions like the Internet concept8).
Technological evolutions in the near future might solve the current problem o f deficiency o f the existing techniques, putting less pressure on the need to com e to global solutions as well, but are no way out for the present conflicts which have to be solved clearly in another way as suggested above.
The jurisdiction issue will certainly lead to and clearly needs more discus-sion in order to deal with the current issue o f conflicting national rules.
R eferences
1. K. Bodard, Aansprakelijkheid van ISP's: tu xxb fla k lot ngulering! De Europese Unie zel de lidstaten
op het spoor, nutar is dil voldoetule?, Algemeen Juridisch Tijdschrift, 2001, nr. 14,403-406.
2. K. Bodard, Global Electronic Commerce: Dealing with legal problems on an international
level!, in M arian Niedźwiedziński (ed.), Electronic Data Interchange - Electronic Commerce.
Materiały na IX Krajową Konferencję EDI-EC, Łódź-Dobicszków 2001, 19-27.
3. K. Bodard, The challenge o f global Internet regulation fo r global electronic commerce. Acta Universitatis Lodziensis, 2002, Folia Oeconomica 157, 59-62.
4. K. Bodard, The need fo r harmonization o f ISP liability, publication proceedings 2nd European Conference on E-Comm erce-Line 2001 (R&D Institute for Automation Bucharest (IPA SA) and Academy o f Economic Studies Bucharest (ASE)), Bucharest, Romania, 24-25 September 2001, 112-115.
5. B. de Vuyst, K. Bodard, Meta Tag Litigation: An Overview And Some Policy Conclusions, E-Law, June 2002, Vol. 9, nr. 2, Юр.
(available at: < httn://w w w.iiiuidoch.edu.au/elaw/issues/v9n2/devuyst92nt. hi ml >)
8 For critical rem arks on the shortcomings o f the European Electronic Comm erce Directive, and the need for introduction o f notice and take down, and notice and take back procedures in the European Directive, read K. Bodard, The need fo r harmonization o f ISP liability, publication
proceedings 2nd European Conference on E-Comm erce-Line 2001 (R&D Institute for A utom
a-tion Bucharest (IPA SA) and Academy o f Economic Studies Bucharest (ASE)), Bucharest, Ro-mania, 24-25 september 2001, 112-115; and K. Bodard, Aansprakelijkheid van ISP's: noodzaak
lot regulering! De Europese Unie zet de lidstaten op het spoor, m aar is dit voldoend, Algemeen
6 . M. Klaver, Geen rooie oortjes, Informatie & Inl'ormatiebeleid, 1998, Vol. 16, No. 3, 5-6. 7. L. C. Lee, S. J. Davidson, Intellectual Property fo r the Internet, New York, Wiley Law
Publi-cations, 2000 Supplement, 81 p.
8. L. Lessig, Tiranny in the Infrastructure. Tlie CDA was bad - but PICS may be worse, < http://w ww .wired.eom /wired/5.07/cvber rie h ts.h tm b . July 1997, 2p.
9. P. Sirinelli, Ľ adequation entre le village virtuel et la creation normative - remise en cause du
rôle de l'Etat? in K. Boele-Woelki en C. Kessedjian (ed.), Internet. Which Court decides? Which
law applies? Quel tribunal décide? Quel droit s'applique? (Proceedings o f the international collo-quium inhonour of Michel Pelichet), Den Haag, Kluwer Law International, 1998, 1-22.
