The following article is developed from a lecture given by W.S. Gale QC to the Scottish Society for Computers & Law at the joint meeting with the Faculty of Advocates IT Group in Edinburgh. The meeting was chaired by John Scott, Chairman of the Scottish Human Rights Centre, and was the fourth in a series on Human Rights and IT.
Some years ago my late father observed to me that he could not imagine that I would, in my lifetime, witness the economic, social and technical changes and advances which he had seen in a lifetime which spanned most of the last century. Whether he was right is perhaps a matter for debate, but he could not have envisaged the developments in information technology which have occurred over the last 20 years, and the effects which these developments have had in relation to the dissemination of information and the way in which the world now conducts business. It is trite that the global information infrastructure crosses jurisdictional boundaries, and it gives rise to a myriad of legal problems. At present these problems have to be considered having regard to laws which existed long before the Internet and online commerce became a reality. The law is playing catch-up with technological developments, but this is not new. In 1968 in Greater Fremont Inc v Fremont 302 F Supp. 652 a federal court expressed the opinion that ‘the public has about as much real need for the services of a cable television service as it does for hand-carved ivory backscratchers’.
An International Perspective
In Europe, and here in the United Kingdom, the ECHR provides the backdrop for continuing development of human rights jurisprundence. That being so, what use is an international perspective? It might be thought that it is really of academic interest. This is far from being the case. Although the sources and the expression of the rights differ, there is nonetheless at a deeper level a conceptual common ground within Western democratic societies. As someone whose academic background (admittedly many years ago) concentrated on the study of comparative law, I suggest that it is inevitable that this deeper correspondence of ideas will tend to give rise to the increasing use of comparative resources as part of the pleader’s armoury, especially when the Internet itself makes such comparative sources much easier to research.
A consideration of the US system, and particularly the application of human rights principles to certain aspects of business law, affords the observer an opportunity to examine the judicial treatment of the fundamental freedoms guaranteed by the Constitution with a view to informing the present and future interpretation of the principles contained in the ECHR. It also has to be said that, notwithstanding the development of online technology over the past decade, the courts in the UK have had little opportunity to consider the many difficult legal problems which are associated with that development, and even less of an opportunity to consider the development in the context of human rights. In America there has been less reticence to litigate on these matters. The comparative exercise is, in my opinion, informative, albeit that it cannot be thought of as determinative. I note that in his judgment in the Privy Council in Brown v Scott (supra) Lord Bingham concluded by noting that the decision reached by the High Court of Justiciary (which the Privy Council reversed) was supported by reference to American and Canadian authority, and observed that the American and Canadian Courts were considering different constitutional provisions.
Civil Jurisdiction
I consider civil jurisdiction to be of central importance to any consideration of legal wrongs committed online (whether these involve infringements of human rights or not). Thus far the courts in the UK have given precious little guidance as to the criteria which will be involved in establishing whether the court has jurisdiction in such matters, and it should be remembered that the present regime for establishing jurisdiction dates back to 1982, and thus before the proliferation in online commerce.
We require to give consideration to the place of the wrong. If a wrongdoer commits a wrong over the Internet it should be relatively clear to him that the information which he makes available may be accessed by persons outwith the country in which he (the wrongdoer) resides. Indeed it may be that it is the wrongdoer’s intention to cause damage to someone in another country. In America the general approach has been to identify (1) subject matter jurisdiction, which is the power to decide the particular type of dispute, and (2) personal jurisdiction – the power to subject the wrongdoer to the order of the court. Of these the rules relating to personal jurisdiction are extremely complex. Jurisdiction over a resident is relatively straightforward, but what of the position of a non-resident? A person may be subject to the jurisdiction of a particular state if he has submitted himself to the jurisdiction by his actings.
Most states have what are termed long-arm statutes, but these are, themselves, subject to the due process clauses of the Constitution. The jurisprudence of the Supreme Court of the United States has, in considering personal jurisdiction over non-residents, analysed what is referred to as the ‘minimum contacts rule’, and the question has become whether the defendant has sufficient contacts with the forum state so that to hold that the court has jurisdiction over him/her will not offend traditional notions of fair play and substantial justice. Another way of putting it is whether the defendant purposefully availed himself of the privilege of doing business or conducting activities in the state, and thus should have put himself on notice that he could be subject to litigation there. It should be said, however, that the application of the minimum contacts rule has been the subject of considerable discussion, and in Asahi Metal Industry Corp. v Superior Court of California 480 US 102 the Court divided 5 to 4 on the application of the rule.
It is perhaps useful to look at two cases in which the American courts have considered jurisdiction in an online context.
Compuserve Inc. v Patterson
In Compuserve Inc. v Patterson 1994 US Dist. LEXIS 20352 the plaintiff brought an action against a Compuserve member resident in Texas in the federal court in Ohio, claiming that the defendant had submitted himself to the jurisdiction of the court by signing up for membership and by offering certain software for sale on a Compuserve bulletin board. The court was of the view, however, that the connection was too attenuated to support the exercise of personal jurisdiction. The court made clear that no exhaustive list of factors could be given which would indicate that a non-resident had, through an online transaction, submitted to the jurisdiction of the forum court. It can probably be concluded that persons who enter into transactions online are at risk of being sued just about anywhere, albeit that certain contractual terms, such as providing for deliveries FOB the vendor’s place of business or a specific forum selection clause, can reduce the risk.
California Software Inc v Reliability Research Inc
In California Software Inc v Reliability Research Inc 631 F Supp 1356 it was held that California had jurisdiction over non-residents who used a nationwide bulletin board service to publish false statements about a company’s right to market computer software. The court held that the defendants had made tortious statements which, though directed at third persons outside California, were expressly calculated to cause injury in California. The defendants knew that the plaintiffs would feel the brunt of the injury, ie the lost income, in California.
It is apparent from the foregoing discussion that the approach taken in America depends heavily on the rather amorphous minimum contacts rule. Given the fact that a number of states may have jurisdiction over the same wrongful act, there is the possibility of forum shopping. In this connection I would observe that the Court of Session has, in recent years, granted interim interdicts to prevent the commencement or continuance of proceedings in foreign jurisdictions, although in both cases the court observed that such an order should be granted only with caution given that the order indirectly affects the jurisdiction of a foreign court (Pan American World Airways Inc v Andrews & Others 1992 SLT 268 and Shell UK Exploration & Production Ltd v Innes 1995 SLT 807).
Human Rights in a Global Setting
In this context online communication and the online dissemination of information has the potential to be both enormously beneficial and enormously harmful. The Internet may provide us with knowledge of abuses of human rights in other countries which would otherwise be confined to a reading of the more obscure pages of the Guardian or the books of John Pilger. It may allow those who consider their human rights to have been abused to publicise their case, but on the other hand the worldwide nature of the Internet may allow a disaffected individual to publicise his cause by establishing his Internet site outwith the jurisdiction in which he might otherwise have difficulty in publishing his material. In these circumstances, is it possible to found jurisdiction against the Web site and/or bbs operators? An online provider may risk litigation in one jurisdiction by sponsoring the publication of information or a dialogue which might be protected by the laws of another jurisdiction. It may also be that the operator of a Web site which features explicit pornography risks prosecution in a less liberal country with stricter obscenity laws. At present it is difficult to see how these matters can be the subject of any clear advice, and until laws are well developed, the advice must be to err on the side of caution.
Freedom of Expression
Article 10(1) of the ECHR provides that everyone has the right to freedom of expression, including the freedom to hold opinions and receive and impart information without interference by public authority and regardless of frontiers. The right is subject to constraints which are necessary in a democratic society, in the interests of national security, public safety, the prevention of disorder or crime, for the protection of health or morals, for the protection of the rights and reputation of others and for the prevention of the disclosure of information received in confidence. In the US the First Amendment to the Constitution provides that Congress shall make no law abridging the freedom of speech or of the press. As was said in Police of Chicago v Mosley Dept 408 US 92 ‘government has no power to restrict expression because of its message, its ideas, its subject matter or its contents’.
US v Baker
The First Amendment protects online communications (United States v Baker 890 F Supp 1375, Cubby Inc v Compuserve Inc 776 F Supp 135), but it would appear that the First Amendment does not prevent online service providers from censoring messages which are published by their members, or, indeed, from denying services to those whose expressions they deem inappropriate. Defamatory communications and obscenity and child pornography are not protected under the First Amendment, nor is speech if it creates a clear and present danger of imminent lawless action. In this latter context the case of Baker reveals a surprisingly liberal attitude towards a sinister aspect of communication online. Mr. Baker was a violent fantasist who found a like-minded Canadian with whom he communicated through e-mail his fantasies of murder and rape, and discussed possible means of carrying them out. He was prosecuted under the federal anti-threat law (18 USCAA s 875(c)); indeed he was the first person to be prosecuted for an online violation. That statute prevents the transmission in interstate or foreign commerce of any communication containing a threat to kidnap or injure the person of another. The Federal Court of Appeal held that the messages, notwithstanding their offensive nature, were not directed to inciting or producing imminent lawless action, and accordingly they were worthy of the First Amendment’s protection.
US Telecommunications Act 1996
The US Telecommunications Act 1996 (which included the Communications Decency Act 1996) attempted to restrict access to material which were ‘patently offensive depictions of sexual or excretory activities’. The intention of this Act was to protect minors, but therein lay the difficulty. The ACLU challenged the Act as an unconstitutional restraint of free speech. In particular it was argued that, because of the online medium against which it was directed, it essentially prohibited indecent speech in its entirety, and thus reduced the options available to the adult population to those which were deemed only fit for children.
ACLU v Reno
In the US District Court for the Eastern District of Pennsylvania in the case of ACLU v Reno 929 F Supp 824 it was held that the Communications Decency Act was unconstitutional. (Incidentally, the findings of fact in that case contain a definitive explanation of the history and basic technology of the Internet, and anyone who has occasion to plead a case which involves an understanding of the Internet would do well to consider the terms of the District Court’s judgment).
An appeal was pursued to the Supreme Court, and there (by a majority of 7 to 2) the judgment of the District Court was affirmed. The majority justices saw the Act as an overreaction, one justice saying that the banning of all offensive material on the Internet was the equivalent of burning the house down to roast a pig. It is also considered that the wording of the Act lacked the precision which the First Amendment requires for a statute which regulates the content of speech. In delivering the judgment of the Supreme Court, Justice Stevens concluded as follows:
‘The dramatic expansion of this new marketplace of ideas contradicts the factual basis of this contention – the contention being an assumption that the unregulated availability of indecent and patently offensive material on the Internet is driving countless citizens away from the medium because of the risk of exposing themselves or their children to harmful material. The record demonstrates that the growth of the Internet has been and continues to be phenomenal. As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship’.
Privacy
Article 8(1) of the ECHR provides that everyone has the right to respect for his private and family life, his home and his correspondence. This right is subject to restrictions similar to those imposed on Article 10 above. It is perhaps rather surprising that America has no comparable express constitutional right – it is a common-law right which is based on the general principle that each person has the right to be left alone. In America this right protects against personal embarrassment and intrusion, and it differs from defamation in that the person invoking the right does not have to show that the information being disclosed is false. The right can be violated by the disclosure of personal/private facts which if disclosed would be highly offensive to a reasonable person.
As far as I am aware the jurisprudence of the European Court has not reached this level of protection, but it is clear that online communication has the scope to place before a potentially unlimited audience material which an individual would prefer remained private. If that material were to be untrue an action of defamation would lie, together with interim remedies. If it were true, but simply embarrassing, it is far from clear that the aggrieved person founding on Article 8 would have the same remedy as his American cousin. In Winer v UK (application 10871/84) the Commission indicated that it did not regard the limited range of domestic remedies available to the applicant to protect his reputation from both true and false accounts of his sexual relations with his wife as amounting to a failure to respect his private life.
In America the right to privacy of online communications is emphasised through the federal Electronic Communications Privacy Act (18 USC s 2701 et seq) (the ECPA). That affords protection to all forms of electronic communications, and was enacted in light of the widespread concern that unauthorised persons were gaining access to communications which were not intended to be available to the public. The Act imposes a general prohibition on persons intentionally intercepting electronic communication, or disclosing the contents of such a communication. This generality does not prohibit the provider of the service from intercepting or monitoring such communication so long as that occurs in the context of the provider’s business. In addition the ECPA prohibits any person from unlawfully and intentionally accessing a stored electronic communication without authority. This Act has particular implications for the employment situation.
E-mail in the Workplace
E-mail is now a standard tool which is provided by an employer for use by an employee, and there may be a variety of reasons why an employer would wish to monitor the e-mail of an employee. He may suspect the employee of engaging in some illegal conduct – possibly the passing on of confidential business information to a competitor. The employee may be acting in a way which brings the employer into disrepute or he may be harassing another employee. To seek to intercept electronic communications in such circumstances would appear to be entirely legitimate, but there may be improper motives such as a prurient interest in an employee’s private life. As with many issues involving personal privacy, the law has to balance competing interests, and many cases have been litigated in America based on the employee’s legitimate expectation of a right of privacy.
This issue has now to be considered in the context of the ECPA. The Act admits of two exceptions to the general prohibition on interception of communications which are relevant to the employment situation. These are referred to in shorthand terms as the ‘prior consent exception’ and the ‘business use exception’. It is the generally held view that these exceptions (which mean exactly what they say) provide private employers with an almost unlimited latitude in monitoring the electronic communications of employees. Employers may require consent to monitoring to be given as a part of a contract of employment, and even where consent is not express, it may be implied, as when the employer informs employees that calls will be monitored as part of employee training. Courts have tended to interpret implied consent strictly; if the employer only hints at monitoring, that will likely not be enough.
When employees have not consented to monitoring, the business use exception is a virtual catch-all. The body which provides the equipment/service is authorised to intercept messages, but only within the ordinary course of its business, and where the intercepted message is one in which the employer has a legal interest. An employee who uses his employer’s equipment to arrange an interview for alternative employment can probably do so without fear of interception as his use of the equipment is not in the course of his employer’s business, and one in respect of which the employer does not have a proper interest.
Some Concluding Thoughts
The American model is a useful comparator for two principal reasons:
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it addresses issues involving electronic communication of information against a legal matrix of constitutionally guaranteed freedoms
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the litigious nature of the society has enabled law to break new ground in dealing with the interaction of technology and human rights.
There will be areas in which comparison will not be useful – it is unlikely that our system of criminal justice will be compromised on the altar of the ECHR so as to allow the level of pre-trial publicity which occurs in the United States.
The consideration of issues which I have sought to share with you leads me to one particular conclusion. To regulate the content of the Internet against the background of a guarantee of free speech has defeated some of the best legal brains in the United States. Is it an insuperable problem to prevent children accessing inappropriate material? Technology will probably provide the only appropriate answer – it may be beyond the ingenuity of the law to do so.
Stuart Gale QC is Chairman of the Faculty of Advocates Business Law Group and has extensive knowledge of international law matters and a particular interest in intellectual property.
