In the works for nearly a decade, the Hague Convention on Jurisdiction and Foreign Judgements is practically unknown outside international policy circles. Nevertheless, it could have broad implications for consumers and businesses by setting new rules for online copyrights, free speech and e-commerce--if it is approved.
Critics--primarily from the United States--voiced their opposition to the treaty following the end of a two-week drafting session on Wednesday. The US representatives claim the pact threatens free speech and could force Internet service providers to become global content police.
"In a nutshell, it will strangle the Internet with a suffocating blanket of overlapping jurisdictional claims, expose every Web page publisher to liabilities for libel, defamation and other speech offenses from virtually any country, (and) effectively strip Internet service providers of protections from litigation over the content they carry," Jamie Love, director of Ralph Nader's Consumer Project on Technology (CPT), wrote in a report after the meeting.
The treaty is one of several efforts by the global community to grapple with complicated legal issues on a borderless Web.
Four years ago, nations including the United States signed a World Intellectual Property Organization pact to protect copyright in the digital age. And several countries, including the United States, are hammering out the world's first cybercrime treaty, which would provide a standard for fighting online crime.
The Hague treaty differs from those efforts because it would not outline specific laws participants must follow. Instead, it is much broader, requiring participants to agree to enforce each others' laws on a variety of topics. As it stands, the treaty would require courts to enforce the commercial laws of the convention's 52 member nations, even if they prohibit actions that are legal under local laws.
Until now, many countries and companies have wrangled with jurisdictional disputes on a case-by-case basis. In the brick-and-mortar world, companies doing business in a foreign country must abide by the laws of that land. However, because the Web allows companies to sell items and services to people in foreign countries without requiring them to leave home, it promises to spawn a legal tangle some think can be solved only by a treaty outlining global rules for cross-border litigation.
No legal borders
A glimpse of the cross-border problem was already seen in the Yahoo Nazi-paraphernalia case. Last year, a French court ruled that Yahoo must block French citizens' access to online auctions of Nazi memorabilia on its US-based site or face fines of US$14,000 per day because the items violated France's hate-speech laws. In response to the ruling, Yahoo pulled the Nazi paraphernalia, even though such items are protected under US laws.
A US court is considering whether to declare French laws unenforceable in this country, but the treaty, if enacted, could make that difficult.
Diverse opponents have criticized the treaty, among them librarians, online stores and global ISPs. However, few of those groups managed to insert major changes in a new draft of the treaty hammered out over the past two weeks.
Delegates did not soften speech laws to provide for countries that value the exchange of information. In addition, they strengthened some intellectual property provisions--over the objections of consumer groups.
"The bottom line is that it didn't go well," said Barry Steinhardt, associate director of the American Civil Liberties Union, which sent representatives to the convention. He said that although American delegates listened to free-speech worries, most others did not.
CPT's Love agreed. "We got our ass kicked," he said. "It was a bad two weeks for us."
Free-speech advocates fear US citizens could lose many of their rights if all Web sites have to ensure they are following the narrowest laws, such as those of, say, China or Morocco.
They point to worst-case scenarios. For example, a site criticising government wrongdoing--which is legal by US standards--might have to shut down because it runs afoul of laws in some other countries.
In a letter to Hague convention delegates sent last week, the American Library Association wrote: "We are concerned that the draft convention...could subject Internet users in the United States to intellectual property infringement in other countries for activities that are lawful in the US"
But delegates point to an exemption that allows judges to refuse to enforce judgments in countries where they would violate that region's public policies. "We're not using this treaty as a vehicle to change laws," said one convention delegate who asked not to be named.
However, critics say those exemptions don't go far enough and don't prevent litigants from shopping around for a forum most favorable to their cause. What's more, US judges may be reluctant to overturn a ruling under the treaty because they would not want a judge in another country to refuse to enforce a US law.
