Ignorance is no Defence, but is Inaccessibility? On the Accessibility of National Laws to Foreign Online Publishers

Abstract

The article examines, first, to what extent the legal exposure of online actors to multiple foreign laws creates a legal obligation on states to make their laws easily accessible to them and whether a state by failing to do so breaches any human rights. Second, it is examined what ‘easy accessibility’ actually entails. The discussion builds upon the premise that the Internet has created an environment where transnational trade or publications are no longer the prerogative of resource-rich multinational companies with large inhouse legal departments to advise them on their respective legal position in different jurisdictions. Yet, there is growing worldwide consensus that online content providers have to comply with the laws of the places where their sites can be accessed. This raises the issue of whether the legal expectation of states on foreign online actors goes, or should go, hand-in-hand with an obligation to cater for the special regulatory needs of foreign actors.

Acknowledgements

I am grateful for the comments by Professor Chris Harding and Professor Ryszard Piotrowicz. This article is based upon a paper presented at the 6^th Conference on Computerisation of Law via the Internet in Paris in November 2004.

Notes

There are a few notable exceptions to that consensus where states have opted for the country-of-origin approach. See, e.g., European Union E-Commerce Directive 2000/31/EC, OJ L 178, 17/07/2000, p. 16. Also see current United Kingdom Gambling Bill 2003 and commentary online at: www.culture.gov.uk/gambling_and_racing/gambling_bill.htm.

Screening devices or selling or subscription policies often entail that only users from certain jurisdictions can either access the site or enter into transactions through the site. This in turn may mean that these users do not ‘enter’ the excluded jurisdiction for regulatory purposes.

LICRA & UEJF v. Yahoo! Inc (Paris, 20 November 2000). Available online at: www.cdt.org/speech/international/001120yahoofrance.pdf; for commentary and further material see Center for Democracy & Technology website at: www.cdt.org/jurisdiction/; Uta Kohl (2001) ‘Yahoo!—But no Hooray! for the international online community’, Australian Law Journal, 75, p. 411.

E.g., European Union consumer protection (e.g., European Council Regulation on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, No 44/2001 of 22 December 2000, OJ L 012, 16/01/2001 p. 1 – 23; United States gambling regulation: US v. Ross [1999] WL 782749 (SDNY); Dutch gambling law: National Sporttotaliser Foundation v. Ladbrokes Ltd District Court, The Hague, 27 January 2003; Australian securities regulation: Australian Securities and Investments Commission, Offers of Securities on the Internet, Policy Statement 141 (10 February 1999, reissued 2 March 2000), PS 141.5, 141.14, 141.16; Australian defamation law: Dow Jones & Co Inc v. Gutnick [2002] HCA 56; United Kingdom obscenity regulation: R v. Perrin [2002] EWCA 747; German law on Nazi propaganda: R v. Töben BGH, Urt. v. 12.12.2000 – 1 StR 184/00 (LG Mannheim), reproduced in Neue Juristische Wochenschrift, 8, p. 624. These are all examples of the country-of-destination approach to regulatory competence, according to which online actors have to comply with the laws of the states where the effect of their activities is felt. States have been unmoved by the objections to this approach, which range from arguments based on the undesirability and impossibility of having to comply with the law of multiple or all states, to arguments about the illegitimacy of states imposing their laws on foreigners whose activity only marginally affects them.

But note David Luban (2002) ‘The publicity of law and the regulatory state’, Journal of Political Philosophy, 10, pp. 296, 299ff, citing a number of cases when ignorance of the law was a successful defence; also note Tom McMahon (1999) ‘Improving access to the law in Canada with digital media’, Government Information in Canada, 16, available online at: www.canadalegal.com/gosite/asp?s = 3364, part 2.

But mentioned, e.g., in Peter W Martin (2000) ‘Legal information—A strong case for free content: An illustration of how difficult “free” may be to define, realize and sustain, available online at: www4.law.cornell.edu/working-papers/open/martin/free.html, at Paragraph II.A: ‘whatever goals the law is pursuing and through whatever immediate means, the prime instrument is communication. Efforts to make law more accessible, more understandable, more clearly expressed are ultimately efforts to make law more effective and in a democracy, more accountable.’

At times a law's objective may also be achieved by leaving margins of safety for undercompliance which penalises those who comply with a law at the expense of those who do not.

It has been observed before that people often obey the law ‘not because they know it directly, but because they follow the pattern set by others whom they know to be better informed than themselves’, Lon Fuller (1967) Morality of Law (New Haven, CT, Yale University Press), p. 49. As will be discussed below, these patterns may be seen as an indirect way of publication upon which the legislator can legitimately rely to some extent.

Cf. David Luban, ‘Publicity of law’, p. 299, where the discussion appears to be based upon the assumption that the state has an interest in ‘burying every regulation in a mountain of other regulation’.

Most facilitative rules are also to some extent restrictive as they impose conditions upon which the law validates or condones the action. For example, in respect of self-help to abate a nuisance, the victim needs to give reasonable notice of the intended actions to the perpetrator. This condition then becomes a restriction on the person exercising self-help. Note also, that it has been argued that ‘it is better if most people do not know exactly what criminal defences the law makes available, because knowing the full range of defences might create perverse incentives to commit the crimes’ (Luban, ‘Publicity of law’, p. 313).

On indirect regulation, see Lawrence Lessig (1999) Code and Other Laws of Cyberspace (New York, Basic Books), Chapter 7.

J. Raz (1977) ‘The rule of law and its virtue’, Law Quarterly Review, 93, pp. 195, 198; Paul Craig (1977) ‘Formal and substantive conceptions of the rule of law: An analytical framework’, Public Law, p. 467. Note ‘access to law’ activities of the Council of Europe, online at: www.coe.int/T/E/Legal_Affairs/Legal_co-operation/Law_making/Access_to_law/.

Raz, ‘Rule of law’, p. 198.

Luban, ‘Publicity of law’, p. 296; see also Fuller, Morality of Law, p. 49.

Fuller, Morality of Law, p. 39 (emphasis added).

Merkur Island Shipping Corp v. Laughton [1983] 2 AC 570, 612.

Merkur Island Shipping Corp v. Laughton [1983] 2 AC 570, 612.

For a discussion of some of these, see McMahon, ‘Improving access to the law’, part 2; see also Article 252 of the European Community Treaty.

Articles 6 and 7 of the European Convention on Human Rights.

Sunday Times v. UK (No 1) [1979] 2 EHRR 245, see also David Feldman (2002) Civil Liberties and Human Rights in England and Wales, 2nd edn (Oxford, Oxford University Press), pp. 755ff.

It is also used in other human rights and constitutional instruments as, e.g., the New Zealand Bill of Rights Act 1999, discussed in D.J. Harvey (n.d.) ‘Free public access to law: The problem and the solution’, available online at: www.law.auckland.ac.nz/learn/itlaw/Freepub.doc.

Sunday Times v. UK (No 1) [1979] 2 EHRR 245, Paragraph 49; see also Silver v. UK (1983) 5 EHRR 347.

In Silver v. UK (1983) 5 EHRR 347, Paragraph 88, a case concerned with state interferences with prisoners' correspondence, the Court noted ‘that although those directives did not themselves have the force of law, they may—to the admittedly limited extent to which those concerned were made sufficiently aware of their contents—be taken into account in assessing whether the criterion of foreseeability was satisfied in the application of the Rules'. Note, the relevant Orders and Instructions were not made available to the public or prisoners, although the prisoners received, by means of cell cards, information about certain aspects of the control of correspondence (Paragraph 26).

Sunday Times v. UK (No 1) [1979] 2 EHRR 245, Paragraph 47.

But in Michael Kirby (1999) ‘Free the law—Beyond the “dark chaos”: Launch of the National Law Collection of AustLII’, available online at: www.austlii.edu.au, where the author refers to Jeremy Bentham's critique of the common law as the ‘dark chaos’ and the author himself describes it as a ‘messy system’.

Sunday Times v. UK (No 1) [1979] 2 EHRR 245, Paragraph 49.

R v. Perrin [2002] EWCA 747, Paragraph 34.

Luban, ‘Publicity of law’, p. 302.

Polyukhovich v. The Commonwealth of Australia (1991) 172 CLR 501, Paragraph 30: ‘The distinctive characteristic of a bill of attainder, marking it out from other ex post facto laws, is that it is a legislative enactment adjudging a specific person or specific persons guilty of an offence constituted by past conduct and imposing punishment in respect of that offence. Other ex post facto laws speak generally, leaving it to the courts to try and punish specific individuals.’

Lord Wright (1945) ‘Liberty and the Common Law’, Cambridge Law Journal, 2, p. 4: ‘all are equally subject to the law, though the law as to which some are subject may be different from the law to which others are subject’.

See Her Majesty's Stationary Office online at: www.hmso.gov.uk/about/hmso.htm.

Department of Trade and Industry on the use of a handheld mobile telephone while driving, online at: www.dft.gov.uk/stellent/groups/dft_rdsafety/documents/page/dft_rdsafety_025216.hcsp.

Incorporated Council of Law Reporting for England and Wales v. AG & Anor [1971] 3 All ER 1029, 1034, where Russell LJ noted: ‘in many instances the ordinary member of the public either does not attempt to, or cannot by study, arrive at a true conclusion of their import, or because the true understanding is largely limited to persons engaged professionally or as public servants in the field of any particular enactment or otherwise interested in that field’.

Merkur Island Shipping Corp v. Laughton and Others [1983] 2 AC 570, 595.

In respect of some types of activities, state regulation is reasonably foreseeable (e.g., law against murder or theft, or areas in which states have traditionally taken a regulatory interest like drugs and firearms), see Luban, ‘Publicity of law’, p. 297, where the author also explains why there has been a massive increase in the type of regulation that is not easily predictable.

• Explicitly, e.g., in Dow Jones & Co Inc v. Gutnick [2002] HCA 56, Paragraph 39:

• • It was suggested that the World Wide Web was different from radio and television because the radio or television broadcaster could decide how far the signal was to be broadcast. It must be recognised, however, that satellite broadcasting now permits very wide dissemination of radio and television. … However broad may be the reach of any particular means of communication, those who make information accessible by a particular method do so knowing of the reach that their information may have. In particular, those who post information on the World Wide Web do so knowing that the information they make available is available to all and sundry without any geographic restriction.

See, e.g., statistics in OECD (2002) Measuring the Information Economy, available online at: www.oecd.org/dataoecd/16/14/1835738.pdf.

Harvey, ‘Free public access to law’, p. 1.

See above Note 4. In respect of harmonised rules, online actors only have one set of laws they need to know and comply with. If states adopted the country-of-origin approach to regulatory competence, then online businesses only need to be familiar with their local rules, but their foreign customers now need to know their rights and obligations under multiple sets of laws. Effectively the country-of-origin approach shifts the notice requirement from the business to the consumer.

Namely potentially all those who make their sites accessible outside their home jurisdiction.

E.g., a recent survey by the Australian Competition and Consumer Commission found that more than 50% of the Australian sites surveyed that sold goods or services illegitimately attempted to disclaim consumers' warranty rights or limit liability. See ACCC, ‘ACCC issues warning to on-line traders: “Shape-up” sites’ (25 June 2004) online at: www.accc.gov.au/content/index.phtml/itemId/519730/fromItemId/2332; also see ACCC, Shopping Online: Rights and Obligations when Trading Online (June 2004) online at: www.accc.gov.au/content/index.phtml/itemId/513872.

This is reflected, e.g., in the number of high-profile publishers who intervened in Dow Jones & Co Inc v. Gutnick [2002] HCA 56 and argued strongly for a radical change in the law.

The ideal solution is harmonisation or at least convergence of domestic laws which, at least in respect of certain areas of law, is very difficult to achieve.

Luban, ‘Publicity of law’, p. 297.

But for contrary American position, see Staples v. US 511 US 600 [1994], discussed below.

‘It is rather easy to observe that the largest part of behaviour regulation is not generated in today's capitalist societies by the relational networks of sociality but as a result of operating within institutional frames of activity’ (Michalis Lianos (2003) ‘Social control after Foucault’, Surveillance & Society, 1(3), pp. 412, 414, available online at: www.surveillance-and-society.org. See also L. Hancher & M. Moran (1998) ‘Organizing regulatory space’, in: R. Baldwin, C. Scott & C. Hood (Eds), A Reader on Regulation (Oxford, Oxford University Press), p. 148.

At times this may also involve public agency (e.g., social security agency), which means that the law does not require the self-application by citizens.

For an excellent evaluation of the extent of harmonised legal standards, see Marc D. Goodman & Susan W. Brenner (2002) ‘The emerging consensus on criminal conduct in cybercrime?’, International Journal of Law and Information Technology, 10, p. 139.

Sallie Spilsbury (2000) Media Law (London, Cavendish), p. 77, where the author notes that the ‘reputation of a dead person is deemed to die with him’.

To make foreign substantive law accessible it is necessary that online publishers realise that foreign substantive law may be applicable to them.

Marks and Spencer, Terms and Conditions, online at: www.marksandspencer.com (emphasis added).

Amazon, Conditions of Sale & Use, online at: www.amazon.co.uk, Clause 16.

Staples v. US 511 US 600 [1994], discussed in Luban, ‘Publicity of law’, p. 303ff.

Staples v. US 511 US 600, 614 [1994].

Such restraint is shown, e.g., in adopting the targeting or directing approach to jurisdiction—that is, only those sites which target a state, must comply with the state's laws, as opposed to all websites that can be accessed in the state.

Under international law, while states may extend their laws to foreigners and foreign activities in certain circumstances, they can never take enforcement action on the territory of another state. However, private parties may approach a foreign court for the enforcement of a civil judgement.

E.g., Harvey, ‘Free public access to law’; but note also Martin, ‘Legal information’, Paragraph V, where the author explains the barriers to free access.

See www.austlii.edu.au and www.law.cornell.edu.

See www.westlaw.com; www.lexis.com and www.juris.de/jportal/index.jsp.

For a discussion of why ‘access to law’ should generally mean more than ‘access to raw data’ and what it may entail, see McMahon, ‘Improving access to the law’, part 6.

See www.hmso.gov.uk/acts.htm.

See www.worldlii.org/catalog/33.html.

See, e.g., statistics on Austlii in Kirby, ‘Free the law’.

Kirby (‘Free the law’) also suggests more legal education for the average citizen: ‘Providing undigested legal material is not enough. It is essential that we provide citizens with the tools of thinking through problems, finding the applicable legal rules and deriving from legislation and case law any principle that must be obeyed … a huge mass of undigested legal data will not truly make the law free and more accessible.’ It is doubtful how realistic that solution is.

See www.dti.gov.uk/for_business.html; and for guidance on regulation, see www.dti.gov.uk/for_business_regulations.html. See also www.businesslink.gov.uk (IT and e-commerce).

See www.dti.gov.uk/ccp/topics1/ecomm.htm and www.dti.gov.uk/industry_files/pdf/smallbusinessguidance.pdf.

See www.consumer.gov.uk/ccp/topics1/ecomm.htm.

See www.accc.gov.au/content/index.phtml/itemId/54056/fromItemId/3669.

ACCC (2003) Dealing with My Competitors Online, available online at: www.accc.gov.au/content/index.phtml/itemId/54070/fromItemId/54056.

See www.econsumer.gov.

For information on the Member States of the International Consumer Protection Enforcement Network ICPEN, see www.imsnricc.org/ and www.econsumer.gov (Member Countries Information).

Other common complaints: the merchant cannot be contacted, the unauthorised use of identity/account information, billing for merchandise or services not ordered, see www.econsumer.gov/english/contentfiles/pdfs/PU15%20-%20Jan-Jun%202004.pdf.

See http://conventions.coe.int/Treaty/en/Treaties/html/180.htm and www.coe.int/T/E/Legal%5Faffairs/Legal%5Fco%2Doperation/Information%5FSociety%5Fservices/.

See, e.g., Explanatory Report to the Convention, Paragraph 7, online at: http://conventions.coe.int/Treaty/en/Reports/Html/180.htm. For a summary of the European Union legislation on information procedures regarding technical standards and regulations and regulation on information society services, see http://europa.eu.int/scadplus/leg/en/lvb/l21003.htm. Of particular relevance are Directive 98/48/EC which amends Directive 98/34/EC (laying down a procedure for the provision of information in the field of technical standards and regulations) and extends the application of the information procedures to information society services (i.e., the services rendered against payment, electronically and at the individual request of a services recipient). In the European Union, which for the purposes of many online activities has established the country-of-origin approach to regulation, the need for the accessibility of foreign norms is reduced.

Sabina Gorini (2004) ‘Council of the European Union: EU joins Council of Europe Convention on Notification of Rules on Information Society Services’, IRIS, 5(3), available online at: http://merlin.obs.coe.int/iris/2004/5/article3.en.html. The Convention is open for signature to the 45 Member States of the Council and observer states such as the United States and Canada as well as the European Union.

See Article 1(1): ‘[T]he Parties shall exchange texts, where practicable by electronic means, of draft domestic regulations aimed specifically at “Information Society Services” and shall co-operate in the functioning of the information and legal co-operation system set up under the Convention.’ Article 2(a) defines Information Society Services as ‘any services, normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services’.

See www.coe.int/T/E/Legal%5Faffairs/Legal%5Fco%2Doperation/Information%5FSociety%5Fservices/Texts%20and%20summaries.asp#TopOfPage.

Article 2(b) of the Convention.