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

[Mark Perkins <MarkP@spc.int>]

Michael

Thanks for the prompt response. The lists I forwarded to were the Internet
Societal Task Force discussion list and APPLE.

1. I do not agree that the end effect is the same. If a company wishes to
register itself & hold assests in a country - it is subject to it's laws. If
it does not wish to, but that country wishes to provide access to global
resources based outside it's own borders, then it should prosecute the
'importers' not the 'exporters'. 

2. The fact that the promoters and owners are one and the same, and US
based, makes a great difference, making this non-extraterritorial.

3. That is Yahoo's choice, however it could do what many multinationals do
and break into obscure holdings companies, etc to avoid national
legislation.

4. I agree with the limits - but feel it is important to distinguish between
the cases.

Mark

-----Original Message-----
From: Michael Geist [mailto:mgeist@uottawa.ca]
Sent: 23 January 2001 04:31
To: Mark Perkins
Cc: jim.halpert@piperrudnick.com
Subject: Re: 'Everybody wants to rule the Web' Globe and Mail article


Mark,

Thanks for the email -- not sure what the lists you cc'd are, so I'm 
responding just to you and Jim Halpert (feel free to forward if you 
like).  To address each of your points in turn...

1.	While I appreciate the distinction between laws that are 
directly extraterritorial and those that are indirectly 
extraterritorial (as are, I would suggest, both the EU and Australian 
laws), I think the point remains the same.  Countries and courts are 
regularly considering the effect of the Internet on their local 
jurisdiction and choosing to enact laws that impact not only local 
organizations, but organizations worldwide.  Note that I don't think 
that there is something per se wrong with this.  The point of the 
article was only to note the double-talk that exists amongst those 
that would criticize one instance but not another.

2.	As for the World Stock Exchange case, the local promoters and 
the Cayman Islands owners are the same people.  The company was owned 
by Alberta residents who formed the company offshore.  By piercing 
the corporate veil, the Alberta Securities Commission clearly 
extended its jurisdictional reach outside the province (and admitted 
as much in its decision).

3.	Yahoo! would have hard time withdrawing its assets -- its 
ownership interest in Yahoo.fr is its primary asset.

4.	I certainly agree that it would have been great to expand on 
the extraterritoriality issue -- unfortunately, space is limited in 
the Globe so I'm always forced to provide a condensed version of the 
issue.

Regards,

MG

>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/

-- 
**********************************************************************
Professor Michael A. Geist
University of Ottawa Law School, Common Law Section
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Tel: 613-562-5800, x3319     Fax: 613-562-5124
e-mail:	mgeist@uottawa.ca
URL:	http://www.lawbytes.com

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