As Yahoo! tries to defend itself against what it sees as the punitive actions of the French High Court, the hoary old chestnut of "who is legislating the Internet?" is raised again.
As with the printing press, newspapers and TV before it, the Internet has become a medium for mass communication and as such will inevitably be manipulated as a political tool. The upside to this is the way it can unite people behind good causes and bring groups together against oppressive laws, but the downside is there are also plenty of sites and images dedicated to hate.
So when Nazi memorabilia becomes available in a country which has a law banning the sale of objects with racist overtones, there is bound to be trouble. Following in the footsteps of the 1998 German case in which CompuServe was charged with aiding and abetting the distribution of child pornography and the Demon libel case earlier this year, the inevitable target will be the ISP or portal on which the offending image or words appear.
Why US portal Yahoo! feels Nazi memorabilia has a legitimate place on its auction site is a question nobody has yet raised, but when challenged about its right to display them there is no-one better qualified to defend that right than a company from a country where free speech is etched throughout its constitution.
So now Yahoo! finds itself in the less than enviable position of facing thousands of pounds worth of fines or escaping the wrath of the French law on a technicality -- namely that blocking access to the site is technically impossible.
The real question remains -- whose side is the law on? Is it sticking up for those with their own personal or political agendas against the Internet, or the Internet itself?
In the Godfrey vs Demon case the nature of the Internet seemed to be the last thing on the judge's mind as he waded through the law books to find a way to hold the ISP responsible.
And there are plenty of laws to turn to -- publishing laws, libel laws, race hatred laws. Those with an axe to grind with the Net and a good lawyer will find a loophole or a clause somewhere to promote their case. The Internet on the other hand seems to have little more to defend itself with than plain old common sense. Which often seems to leave the final decision down to an individual judge, who may be a get-on-down Net savvy surfing dude -- or may not.
While it seems perfectly reasonable that an anti-racist group in France will turn to its own national laws to rid the Internet of what it sees as an insult to the collective memory of France, there is also something terribly parochial about the whole debacle. "When in my country you will abide by my laws" is exactly the kind of attitude which is often held by exactly the type of people the anti-racist lobby is fighting.
I thought the whole point of the Internet was that it rose above nationhood, providing a world window on events, news and information not previously available. So people living in dictatorships could get information other than that fed to it by its oppressive regime. People wanting to put their name to a Web site protesting about global poverty could do so -- and yes, so racists could add another piece of swastika-decorated china to their pathetic collection.
In the end it will not be morality that dictates how legal cases are settled on the Net. Trade drives the Internet and trade is decidedly jumpy about the lack of harmonised laws on a whole host of cyber issues.
I predict that global trade will sooner or later demand that legal issues be homogenised across countries to prevent the piecemeal way disputes are currently settled. We will gain an international body to deal with legal issues on the Internet -- possibly set up by the UN and called something like the International Internet Judiciary.
And it will probably grind slowly and bureaucratically to its conclusions and will probably sometimes make the wrong decisions but it will certainly be a lot better than leaving the law which affect millions of surfers in the hands of an individual judge.