CompuServe -- like America Online -- is a commercial online service that is available to subscribers around the world through local telephone access numbers. These companies originally offered a private menu of databases and information services, but in recent years they have become full Internet service providers (ISP's). Today CompuServe subscribers can access both the Internet and the company's unique and restricted online world.
The controversy in Germany has been brewing for some time now. In December 1995 the police in Munich (the capital of the conservative state of Bavaria) raided the CompuServe offices, and in response the online service temporarily barred access to 200 Internet Usenet sites for some four million subscribers worldwide. A huge outcry ensued, with many customers and free-speech activists protesting the decision in online discussion forums. Particularly troublesome to many of these online protesters was the fact that some of the prohibited sites focused on issues like breast cancer and AIDS. See Edmund L. Andrews, CompuServe Executive Indicted in Germany on Pornography Charges, N.Y. Times, April 17, 1997.
After a long investigation that followed the police raid, criminal charges were brought against Felix Somm, the head of the German division of CompuServe. Obervers believe that this is the first time Western authorities have attempted to prosecute a commercial online service for material it did not produce.
According to the Munich prosecutors' office, Mr. Somm has been accused of trafficking in pornography and neo-Nazi propaganda. The office said that he "knowingly allowed images of child pornography, violent sex and sex with animals from newsgroups...to be made accessible to customers of CompuServe Germany." Prosecutors said that subscribers were also given access to computer games that contained forbidden images of Hitler and Nazi symbols such as swastikas. See Roger Boyes, Computer Firm to Fight Bavarian Charges of Internet Pornography, The Times of London, April 18, 1997.
While China received much attention last year for its decision to block an estimated 100 Internet sites, require ISP's to register with the government, and route international links through a government agency, there is apparently no way that CompuServe can shape Internet content specifically for the German market. Were it to restrict access to certain sites, these restrictions would be in force for all subscribers worldwide.
Not surprisingly, the CompuServe parent company has said that it would "vigorously oppose" the "entirely groundless" charges. It asserts that it "bears no responsibility for the contents of thousands of Internet sites accessed via CompuServe, and cannot monitor and censor cyberspace." See Ian Taylor, Alex Duval Smith & John Palmer, Cyberspace Faces Crucial Court Test, Manchester Guardian, April 18, 1997. Implicit in these comments is the contention that German law should not be allowed to restrict international Internet access.
While all countries generally have laws prohibiting the distribution and sale of certain types of pornography, definitions and penalties typically vary from place to place. With regard to neo-Nazi propaganda, the situation is even more complicated, since its dissemination is not a crime in many countries, including the U.S.
Over the past few years, commentators and jurists have focused increasingly on questions of jurisdiction in the online world. With cyberspace existing somewhere beyond state lines and international borders, it is unclear which laws are applicable, and in what context.
The jurisdiction issue first came to the attention of many observers in Early 1996 when the Sixth Circuit upheld the highly publicized conviction of pornography dealers Robert and Carleen Thomas. U.S. v. Thomas, 74 F.3d 701 (6th. Cir. 1996); cert. denied, 117 S.Ct. 74. The Thomases had been indicted in the U.S. District Court for the Western District of Tennessee and convicted under a variety of federal statutes. Yet the Graphic Interchange Format (GIF) files in question never actually left Northern California. And these files, judged to be obscene under Memphis community standards, were arguably not obscene under Northern California Bay Area standards.
Although the Sixth Circuit in Thomas appeared to discredit the argument that a different notion of jurisdiction might appropriately apply to the online world, it was clear that "cyberjurisdiction" questions were only just beginning. In subsequent months, a series of personal jurisdiction controversies in civil cases focusing on cyberspace reached the federal district courts.
While several cases found that online contacts were sufficient to establish jurisdiction, others determined that personal jurisdiction could not be exercised over a nonresident defendant whose only contact with the state was alleged to be through its web site. See, e.g. Maritz, Inc. v. Cybergold, Inc., 1996 U.S. Dist. Lexis 14978 (E.D. Mo. 1996) (jurisdiction found), Bensusan Restaurant v. King, 937 F. Supp. 295 (S.D.N.Y. 1996) (no jurisdiction found). And in a subject matter jurisdiction case, the court found no subject matter jurisdiction in a domain name lawsuit under the federal interpleader statute. Network Solutions, Inc. v. Clue Computing, Inc., 946 F. Supp. 858 (D. Col. 1996).
In the recent personal jurisdiction case of Zippo Manufacturing Company v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997), the court attempted to discern a pattern in these federal decisions. It concluded that a "sliding scale" of jurisdiction exists within the context of the online world: "[T]he likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet." See id.
Whether and to what extent the principles articulated by the Thomas court and the Zippo court might be deemed applicable in an international setting remains to be seen. Several commentators have wrestled with related questions in recent months, and a consensus is far from apparent.
Eric J. McCarthy, for example, suggests that the potential for international forum shopping will negatively impact "cyberspace travel," ultimately chilling the freedom of speech and individual expression. See McCarthy, Networking in Cyberspace: Electronic Defamation and the Potential for International Forum Shopping, 16 U. Pa. J. Int'l Bus. L. 527 (1996). John T. Delacourt concludes that a consensual regime offers the best hope for a solution in this regard, with Netizens of all nations agreeing to a rating system and relying on screening software. See Delacourt, Recent Development: The International Impact of Internet Regulation, 38 Harv. Int'l L.J. 207 (1997).
Matthew R. Burnstein believes that some international choice of law questions might be resolved in contracts between users and access-providers, while other disputes might be addressed by relying on existing models in such areas as admiralty law. See Burnstein, Conflict on the Net: Choice of Law in Transnational Cyberspace, 29 Vand. J. Transnat'l L. 75 (1996). Other commentators would go far beyond existing models. John K. Gamble, for example, has "little doubt that the quantity of change the information age is bringing to international law will be stunning...[and]...unprecedented. See Gamble, International Law and the Information Age, 17 Mich. J. Int'l L. 747 (1996). And David G. Post has been a consistent and articulate spokesperson for the view that a new legal regime must be devised to address transborder issues of jurisdiction, choice of laws, and international conflicts. See, e.g., Johnson and Post, Law and Borders -- The Rise of Law in Cyberspace, 48 Stan. L. Rev. 1367 (1996).
In the meantime, efforts to seek out common ground under traditional legal frameworks continue. European Union governments will be asked later this month to adopt a code of conduct governing Internet material. The World Intellectual Property Organization (WIPO) agreement of 1996 is in the process of being presented to over 100 governments for ratification. Law enforcement officials worldwide continue their efforts to work together.
And CompuServe has announced that it will "vigorously defend" General Manager Felix Somm at the upcoming trial.
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