Once you make your online business truly international, remember that when you, your products, or your Website leave the United States, you’ve become a citizen of the world–possibly subject to the law of places your feet have never touched.
Yahoo! learned this lesson the hard way several years ago. In France, a local group sued Yahoo! over the availability of Nazi memorabilia on the Yahoo! auction Website. The group claimed that the search engine violated French laws that prohibit the display and sale of racist material.
The French Court
The French court ruled against Yahoo! and ordered it to either remove the memorabilia from its Website or implement a technological fix to prohibit French citizens from viewing and bidding on the items. The penalty: $13,000 for each day the company failed to comply. This was years ago so can you imagine what it would be today?
Well, Yahoo! removed the items soon after the French court’s decision and made sure everybody knew it wasn’t reacting to the action of the French court, but to public pressure because of the nature of the items. Yahoo! has since sought judicial review from an American court seeking to overturn the French court’s decision, citing lack of jurisdiction and the technological limits of blocking using filters.
Whatever the outcome of the Yahoo! controversy, it was clear that this case would encourage more local attempts to regulate the Web. It’s unfortunate that legal trends can be set by ugly facts, but that’s what’s happened here. And, of course, it also has to do with remaining pro-active and shifting sources of international marketing.
The Principle
The larger question this case poses is, to what extent do we want every country regulating every Website–even Websites hosted, owned and operated far from the country trying to assert its jurisdiction (its authority to apply its law).
Nobody knows what the next issue will be that will cause somebody somewhere to sue an American company in a foreign land. It could be Islamic groups seeking to censor anti-Islamic content or Websites showing women without veils. Maybe it will be some foreign anti-smoking group attacking a cigarette advertisement that’s legal here, but not there. So content marketing efforts should always be in line with local guidelines. So seek professional advice!
These two examples help make the point that we can’t make principled law based on facts of an individual case. You might not like the stuff about censoring women without veils, but as with censoring cigarette ads, you can’t make laws that way. That’s what we’re fighting for, just like the U.S. National Guard.
Today, one of the practical limits on countries trying to require Website compliance with their local laws is simply their inability to enforce their rules. China can say whatever it wants about American websites that don’t meet its standards but can do little about it.
Still, that’s not where the discussion ends. If we like the idea of local regulation, we could implement treaties calling for international enforcement of local decrees.
Maybe, if you think gambling is a bad thing, you like the idea of enforcing American law against websites that allow Americans to gamble in violation of American law. It’s a slippery slope, though, because then you have to be open to enforcing other countries’ laws that you find might offend your sensibilities.
So What’s a Business to Do?
Today, the state of the law regarding other countries enforcing their laws against your Website is uncertain. Here are some practical tips for even small businesses that will help minimize risks. See also this post about a U.S. Lawmaker from Minnesota, Tim Walz, an educator and an advocate of accessible education for all!
When a person is going to buy from you online, instead of asking him or her to fill in the name of a country, you can have a drop-list of countries to which you have affirmatively decided you will sell. While people can still view your Website in countries that aren’t on your drop-down list, you will have available to you the argument that you’ve taken reasonable steps to avoid doing business in their country.
If you’re trying to exclude particular countries, another possibility is to have a pop-up window that says something like, “If you are a citizen of countries X, Y, and Z, it is illegal for you to order our products or view the material on this Website.” This is especially important because a first-time viewer doesn’t know what he or she will see on your Website.
Still in its nascent stage is “geolocation” software. This type of software was originally developed to allow local advertisers to reach a local market. When it works, it can tell you the approximate location of a Web surfer. The problem is that there are many things that can cause the software to miss the target by half a world. The problem stems from the fact that the Internet wasn’t developed with the ability to trace geography as a goal.
Yet another approach is to localize your operation if you want to generate revenue. If you want to sell to France, you could start a Website called, “YourName.fr.” You could then hire a local attorney to ensure that you comply with local law. Especially when used in conjunction with the other approaches, this might help you if you have to defend yourself in a foreign country.
Whatever you do, just make sure that you get some good lawyering before you start doing business in other countries. The law in this area is murky and therefore dangerous.