'Everybody wants to rule the Web' Globe and Mail article

[Mark Perkins <MarkP@spc.int>]

Dear Michael Geist

Thanks for a very interesting article, but there are certain areas in which
I strongly disagree.

"The United States, however, is not alone in this regard. The European
Union's Data Privacy Directive has spurred the enactment of privacy laws in
Canada and around the world by including a provision that prohibits the
transfer of personal data to non-EU countries that do not employ adequate
privacy protections. Australia's on-line content regulation, enacted last
year, includes provisions that mandate blocking obscene content that
originates from foreign Web sites."
These are not extraterritorial provisions. The EU Directive states that
these companies are not allowed to remove data from the EU unless the
countries have adequate privacy protection, ie. the law is only applicable
to actions on EU soil. Similarly, the Australian legislation does not
require foreign websites to stop 'transmitting' such content to Australia
but requires Australian ISPs to block such notified content, again - an
action on Australian soil.
"Canada has also gotten into the act. Last year the Alberta Securities
Commission prosecuted the local promoters behind the World Stock Exchange, a
Web site based in Antigua with Cayman Islands ownership. The securities
regulators argued that the effects of the site were felt to such a degree in
Alberta that asserting jurisdiction was proper."
Here, the prosecution was against the local promoters, not the
Antiguan/Cayman Island owners.
"First, foreign law matters. Once a company has assets or customers in a
foreign country, it can ill-afford to ignore the local legal system."
Here is the real issue - and the crux point in Yahoo ruling. If Yahoo
withdrew it's assests from France, then they would be in more of a position
to ignore the French courts.
Your examples of extraterroriality offline should also be broadened. The US
government, while extending it juristiction in drug cases overseas, it
refuses to sign up for an International Human Rights Court; ie. choosing
extraterritoriality when it suits it. I think the historical reality is much
more political than legal.
Yours 
Mark Perkins
Librarian
Secretariat of the Pacific Community Library
BP D5, 98848 Noumea Cedex
New Caledonia, South Pacific
Tel: 00 687 262000  Fax: 00 687 263818
email: markp@spc.int
web: http://www.spc.int/library/

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