Four recent United States court actions / decisions highlight the issue of just how global the Internet has become as to legal issues. It does not matter where a Web site or a Webmaster or Webmistress is located or housed, the long arm of the law will find you.Four recent United States court actions / decisions highlight the issue of just how global the Internet has become as to legal issues. It does not matter where a Web site or a Webmaster or Webmistress is located or housed, the long arm of the law will find you. This article is not only intended as an introduction to a new player in the Internet legal field, but to give warning to all those who have Web sites – you are not immune from legal matter or actions, no matter where you are located.
The first of these actions was, in fact, a non-action. The United States Supreme Court, in an action involving a health plan rating Web site, refused to accept an appeal of a lower court’s decision allowing a potential defamed healthcare company to bring a defamation claim against the Web site in Washington, even though the Web site operators maintained the physical Web site and its presence in Colorado.1 While the lawyers for the defendant rating service (Healthgrades.com) argued before the lower courts that it was a nationwide service not focused on any one region or state, the federal appeals court felt that others harmed by the site made the Webmaster vulnerable to the specific state jurisdiction.
While most adult Webmasters do not target a specific geographic area or residents, it must be noted that the failure to reverse this Ninth Circuit ruling, the latest in a series of cases, clearly allows for arguing / contending multi-jurisdictional liability. Until the Supreme Court addresses the jurisdiction issue head on, each and every one of you must be cognizant that you are subject to laws of every state and the results thereof.
In that same vein, we come to action number two – in the form of the Attorney General of the State of Pennsylvania. Last year, Pennsylvania enacted a law which permits the Attorney General to order Internet Service Providers (ISP’s) to block the access of Pennsylvania residents to Web sites/domains which are suspected of featuring / condoning child pornography. Thus, as in the case above, it does not matter where the ISP is located, the rules would only apply to Pennsylvania residents.
Two recent actions / studies put into severe question, however, the impact of the Pennsylvania law and the more far-reaching effect of blocking access across borders. World Com recently announced that it could not comply with the Pennsylvania law because it lacks the technical ability to prevent residents from one state from viewing specific Web sites and that the blocking of a site would lead to blocking sites for all North American subscribers.2 This announcement follows on the heels of a study by Havard Law School’s Berkman Center for Internet and Society, which concluded that because Web standards at this time permit thousands of domain names to share one Internet address, the blocking of sites of an illegal nature will lead to the blocking of legal / innocuous sites as well. If the Pennsylvania law can not be imposed as initially designed, which is the offsite blocking by ISPs, then Pennsylvania could seek to block adult sites either by direct instate attempts under the present law, or seek legal action against the individual sites in the Pennsylvania courts under this law and related litigation.3
Then there is the recently passed “Amber Alert” bill. While this bill was purportedly intended to provide for a national child abduction alert system, Congress managed to bury provisions which would hand out prison sentences to those who were supposedly engaged in child pornography. For example, the law bans the distribution of “virtual child pornography,” defined as pornographic images of adults which, by digital alteration are made to look like children having sex.4 The law also calls for the prohibition of Webmasters from using misleading domain names in order to lure underage viewers into adult sites; however, the use of the terms such as “sex” and “porn” in their domain names would not be prosecution eligible, according to Congressman Michael Pence (R-Indiana), a key sponsor of the Act.5 However, the opposing voices, such as Senator Patrick Leahy (D-Vermont), believe prosecutors could misinterpret the legislation by finding that sexually oriented art or graphic safe-sex demonstrations are criminally prosecutable if they are found to have misleading Internet addresses.6 (A more detailed article on this bill will be forthcoming).
Finally, there is the concern for members of the industry as to the impact of the Digital Millennium Copyright Act (DMCA) and the use of content. Under the DMCA, there is a requirement that a possible offending party / Internet Service Provider (ISP) be subject to an investigation prior to the claim of a DMCA violation.7 That investigation initiative, however, seems to be in jeopardy if the provisions of InternetMovies.com v. MPAA are upheld.8 The United States District Court for the District of Hawaii determined that a copyright holder’s belief that its materials had been pirated, on “good faith” belief alone, was sufficient to invoke a DMCA action.9 Thus, a “good faith” belief without any more proof was sufficient to allow MPAA to shut down InternetMovies.com.10 InternetMovies.com purportedly was doing nothing more than providing movie trailers to the community at large, well the MPAA thought otherwise and convinced the court accordingly. The concern that seems to be developing out of this decision is the mere presence of copyrighted materials could cause a site shutdown under the DMCA.
Borders do not prevent issues from occurring or leaving Webmasters open to possible legal action. The waters become more treacherous out there and all parties involved, Webmasters and Web viewers, must pay particular attention to the surf and surfing.
1 D. McGuire, “Internet Legal Borders Remain Hazy”, washingtonpost.com (April 29, 2003)
2 D. McCullagh. “Group questions State Site- Blocking Law”, cnetnews.com (April 22, 2003)
3 Id.
4 Id.
5 D. McGuire, “New Law Targets Internet Porn”, washingtonpost.com (April 30, 2003)
6 Id.
7 A. Vance, “Court confirms DMCA ‘good faith’ website shut down rights”, Theregister.co.wk (May 30, 2003)
8 Id.
9 Id.
10 Id.
Eric M. Bernstein, Esq. is the partner in the law firm of Eric M. Bernstein & Associates, L.L.C. in Warren, New Jersey. Mr. Bernstein, and members of the firm, represent clients on all aspects of Internet law, including but not limited to, site content issues, employment issues, First Amendment issues, civil rights issues and other legal matters concerning the internet industry on a nationwide basis. All of the statements / comments represent the opinions of the author only and do not constitute specific legal advice. Please consult your own individual legal counsel on specific legal matters. You can contact Eric M. Bernstein, Esq. at embernstein@embalaw.com or info@embalaw.com.
