The legal drama that has followed in the wake of the online publication of the film titled ‘Innocence of Muslims’ may be worthy of being used as the plot for a movie in its own right. And, given a recent judgment by Chief Judge Kozinski in the US 9th Circuit, it would no doubt be best as a horror movie.
The background to the dispute is rather complex, but put simply, Cindy Lee Garcia was cast in a minor role in a film with the working title ‘Desert Warrior.’ For the three and a half days of filming she received $500. However, that film never materialised. Instead, Garcia’s scene was used in another film – a highly controversial film titled ‘Innocence of Muslims’. Garcia first saw this latter film after it was uploaded online. At that time, she discovered that her brief performance had been partially dubbed over so that she appeared to be making a statement offensive to persons of the Muslim faith.
Garcia sought to have the movie taken down by arguing to have a copyrightable interest in her brief performance in the movie. Needless to say, such a claim has a slim prospect of success in most parts of the world, but Chief Judge Kozinski concluded that Garcia does have such a right.
Copyright lawyers will no doubt find the decision highly interesting merely by focusing on Chief Judge Kozinski contentious approach to the copyright issues involved. However, as the title indicates, my interest in the case lies elsewhere. I am concerned about the fact that the Court ordered Google Inc to “take down all copies of ‘Innocence of Muslims’ from YouTube.com and from any other platforms under Google’s control, and take all reasonable steps to prevent further uploads of ‘Innocence of Muslims’ to those platforms.” (emphasis added)
Given Google’s virtually global presence, with various country-specific platforms, the problem is obvious. US copyright law applies in the US, not globally. This fact can scarcely have escaped the Court. Yet, it was not even touched upon by the 9th Circuit on this occasion. Indeed, Chief Judge Kozinski did not even seek to legitimise the approach by putting the court order in terms suggesting that the global take down was necessary to ensure the film was inaccessible in the US.
If we let domestic courts make orders regulating what may and may not be published globally, we will quickly find ourselves in a situation where the only content (legally) available online is such content that is acceptable globally. But how useful would such an Internet be? And where would that leave us when it comes to freedom of speech?
Luckily, it is rare for courts to take such a parochial approach as the 9th Circuit did in this dispute. More commonly, courts have recognised that making court orders with global reach is problematic and typically excessive. An extract from a judgment by the New South Wales Supreme Court is illustrative
An injunction to restrain defamation in NSW s designed to ensure compliance with the laws of NSW, and to protect the rights of plaintiffs, as those rights are defined by the law of NSW. Such an injunction is not designed to superimpose the law of NSW relating to defamation on every other state, territory and country of the world. Yet that would be the effect of an order restraining publication on the Internet. It is not to be assumed that the law of defamation in other countries is coextensive with that of NSW, and indeed, one knows that it is not. It may very well be that according to the law of the Bahamas, Tazhakistan [sic], or Mongolia, the defendant has an unfettered right to publish the material. To make an order interfering with such a right would exceed the proper limits of the use of the injunctive power of this court. (Macquarie Bank Limited & Anor v Berg  NSWSC 526, at para 14.)
Thus, a global removal of content that is only unlawful in some countries but not others would arguably infringe the rights of people in those latter countries to access that content. Further, global blocking in such a situation may be seen as a violation of the creator’s right to communicate that content in the countries where doing so is lawful.
It is important that we do not overlook these rights just because there may be a duty not to communicate that content in some countries.
One often sees the adherence to the harshest rules as a proposed solution to the difficulty of variances in legal standards where more than one standard applies to specific conduct. Such suggestions rely on notions such as that expressed by Justice Souter, that: “[n]o conflict exists, […] ‘where a person subject to regulation by two states can comply with the laws of both.” (W. S. Dodge, Extraterritoriality and Conflict-of-Laws Theory: An Argument for Judicial Unilateralism 39 Harv. Int’l. L. J. 101 (1998), at 136.)
I object to this duties-focused approach. Essentially what Justice Souter and others are saying is that we should only focus on the duties imposed by law. If the duties do not conflict, the laws do not conflict. This is a too simplistic perspective. It completely neglects the importance of the rights that laws provide. Importantly, the correlative relationship between rights and duties we may be accustomed to from a domestic law setting does not necessarily survive when transplanted into a cross-border environment; that is, rights provided under one country’s legal system may not necessarily create corresponding duties under other legal systems.
I argue that in assessing whether two (or more) laws are in conflict we need to take account of both the duties and the rights those laws provide for. In other words, even where the duties do not clash, the rights of one country may clash with the duties of another country.
The difference can be illustrated by way of an example. Imagine that the laws of state A specifically provide for a right of religious freedom, while the laws of state B specifically impose a duty of adherence to Norse pagan faith. Where a person, for one reason or another, finds herself bound to comply with both the laws of state A and those of state B, there is no conflict in the view of the reasoning put forward by Justice Souter and others – such a person can comply with the law of both states by adhering to Norse pagan faith.
In contrast, from the perspective I advocate here, there is a conflict since the right provided by the law of state A cannot be freely exercised while at the same time complying with the duty imposed by the law of state B (except, of course, by those who voluntarily chose to exercise their right to worship Odin, Thor, Freya etc).
In light of all this, I argue that calls for compliance with the strictest rules, as a solution to the problem of conflicting laws, are misguided. And, it would seem beyond intelligent dispute that global blocking/removal cannot be the default response to every court order requiring an Internet intermediary to block/remove certain content in a certain country. We need a more measured and more sophisticated approach.