JURIST Guest Columnist Karl M. Manheim of Loyola Law School in Los Angeles says Twitter should comply with French law, but only within that jurisdiction....
French court recently ordered
Twitter to hand over the account information of users who had posted anti-Semitic and racist tweets. The court order came in a lawsuit brought by the French Union of Jewish Students and SOS Racisme after a slew of anti-Semitic postings on Twitter in late 2012. The postings at issue circulated around the hashtag (topical theme) #AGoodJew which was then followed by tweets like "#AGoodJew is a dead Jew." Twitter removed the posts at issue, consistent with its new "country-withheld content" policy of removing posts which violate local law. However, Twitter has yet to identify the users, as demanded by the French court, because company policy is to respond only to US court orders.
This French case raises the broad question of which country's law has jurisdiction over content on the Internet. Should Twitter comply with French law even though its servers are physically located in the US and it maintains no offices in France? And, as goes France, so goes the rest of Europe. Both Germany and the UK have also sought to block the activity and accounts of neo-Nazi and gay-bashing users on Twitter.
The fluidity of accessibility to the "cloud" over the Internet, anywhere and anytime, creates complex issues for social media giants such as Twitter, Facebook and YouTube (recall the explosive reaction to Innocence of Muslims). Jurisdiction over online activity is a particularly thorny issue, in part because the Internet is ubiquitous and does not respect national boundaries. We even refer to this realm as "cyberspace," as if it were a place unto itself; immune to national and physical laws.
But nations are loath to surrender their sovereignty to a bunch of Internet engineers and social media giants. Nor should they. National laws apply to actions and harms occurring within a country's borders, whether delivered in person, by mail or by tweet. It is a long-standing rule that anyone availing herself of access to a country is subject to its jurisdiction. Delivering tweets into France, or otherwise doing business there, subjects both Twitter and its relevant users to French law.
The US does not like the fact that its citizens and corporations are subject to other nation's laws when doing business there. In 2010, Congress enacted the Securing the Protection of our Enduring and Established Constitutional Heritage Act (SPEECH), which makes foreign judgments unenforceable in US courts unless they are consistent with the First Amendment. "Hate speech," including racist and anti-Semitic slurs, is fully protected in the US but not in France. Thus, the French order to disclose certain account information would likely not be enforceable in the US. But, does that mean Twitter can simply ignore it?
Just as wealthy corporations and individuals shelter their assets offshore in countries with low or no taxes global communications networks may seek to shelter their servers in countries where offensive speech is protected and they are otherwise immunized. If Twitter can defy French law simply because the hate speech circulating on its global network originates or is stored in the US, then France has lost control of its own laws. We may not like those laws, but I think we'd like even less the prospect of France surrendering its sovereignty to Twitter.
What is a fine, upstanding company like Twitter to do when faced with various and inconsistent speech regulations? We live in a networked world and we surely don't want the most repressive or "enlightened" regimes to dictate the content of speech for the rest of us. Even if we were confident in the quality of our own speech laws, exporting them to other countries is a matter for diplomats to negotiate, not corporate managers.
Still, free speech on the internet is one of the most liberating and democratizing features of the information age. Whether that was their goal or not, Twitter has become an indispensible player in the march toward freedom, as we've seen recently in the "Arab Spring." How can Twitter now surrender to the "thought police," whether in France or elsewhere?
I think there is a simple answer. First, to paraphrase Google's legendary motto: "Don't be evil." By that I mean that Twitter should not itself become a censor. It should not take down or block tweets which it believes are offensive. As Justice John Marshall Harlan wisely observed: "One man's vulgarity is another's lyric." If Twitter ever employs a "chief censor," or develops such a policy, it will quickly lose its stature as a conduit for speech and become the speaker itself. Among other things, that could result in the loss of Twitter's "safe harbor" protection under various US laws.
Equally important, however, Twitter should not resist the laws of countries in which it does business, even if that means shutting down users or blocking messages. We may not like those laws and I would hope that Twitter would use its enormous influence to campaign against them but it cannot set itself up as above the law.
Twitter may have made a commitment to its users, on privacy and other policies, but as those of us surveilled in US know, sometimes privacy has to yield to law. If Twitter thinks the only law that matters is US law, including SPEECH, it may find itself out of favor and irrelevant in other countries. Indeed, Twitter now faces a € 38 million fine for ignoring the French court. A tough choice for sure, but Twitter, like other companies doing business across borders, either complies with local law or goes home. Personally, I hope Twitter will continue to fight for user privacy and free speech in the French courts, and everywhere, but defying valid court orders is another matter.
Yes, there is a place for civil disobedience and at some point Twitter may want to make a corporate commitment to do just that, but it is a tactic that must be used judiciously; such as where lives or personal safety are at risk. I'm not sure the greater good is served when Twitter is shut down completely in a country simply because the company's executive officers dislike local law.
Bottom line: Twitter should comply with national laws, but only within the jurisdictions to which those laws apply. It has the technical means of doing so, as demonstrated by its new "country-withheld content" policy. However, Twitter cannot export US law to France or elsewhere by the expedient of housing its servers in California and Texas. We can all tweet our disapproval of French law, but we cannot unilaterally repeal it.
Karl M. Manheim is a Professor of Law at Loyola Law School in Los Angeles. He teaches in the areas of Constitutional Law, Intellectual Property, Privacy and Communciations. He is the faculty advisor to the Intellectual Property Law Concentration.
Suggested citation: Karl M. Manheim, J'Accuse Twitter, JURIST - Forum, Mar. 27, 2013, http://jurist.org/forum/2013/03/karl-manheim-twitter-france.php
This article was prepared for publication by Ben Klaber, a senior editor for JURIST's academic commentary service. Please direct any questions or comments to him at firstname.lastname@example.org