Charlie Cray
Essential Information
P.O. Box 19415
Washington, DC 20036
December 12, 2001
Maneesha Mithal
Bureau of Consumer Protection
Federal Trade Commission
via mmithal@ftc.gov
Dear Ms. Mithal,
On behalf of Essential Information, I request permission to
participate in the FTC's December 19, 2001 roundtable on the
Hague Convention. Essential Information is a non-profit
organization that publishes books, magazines, and web pages,
and hosts Internet listserves, in addition to supporting
various public policy advocacy efforts. My participation
in the December 19, 2001 meeting will focus on our concerns
over the Hague Convention in the following areas:
1. Defamation and libel torts.
2. Internet related copyright Infringement torts.
3. Enforcement of non-negotiated "business to business"
contracts.
4. The limitations of the Hague public policy provisions
for Internet publishing.
I. Background on Essential Information.
Essential Information publishes a number of books, magazines
and other publications, including many that are distributed
on the Internet. Some of the current EI books are
advertised here: http://www.essential.org/books.html. I am
an editor for the Multinational Monitor, which is published
in both paper and Internet versions. The Internet version
is here: http://www.essential.org/monitor/index.html.
Essential Information also hosts dozens of Internet email
listserves, including those listed here:
http://lists.essential.org/mailman/listinfo, one of which
deals specifically with the Hague Convention. EI also hosts
web pages for many other organizations, including groups
located outside the United States.
II. Defamation and libel torts.
Essential Information publications often feature articles
that are critical of repressive governments or large
corporations. As a US publisher, we have more freedom than
do publications in some other countries. Defamation and
libel laws in many foreign countries are much more
restrictive than are our own laws, because the framers of
the US Constitution believe free speech was an important
American value.
The Hague convention would expose EI to defamation and libel
suits from around the world, including countries such as the
UK, Egypt or China, where governments do not share US values
regarding free speech. Under the current Hague proposals on
torts, EI can be sued for defamation from virtually any
country the world. The Hague treaty would fundamentally
change our freedom to challenge powerful corporations and
governments throughout the world.
III. Internet related copyright Infringement torts.
I am not an expert on copyright law, but we are aware of
significant differences between US and foreign laws on such
issues as fair use exceptions to the rights of authors.
This is a particular concern for EI because we host dozens
of email listserves, and in those listserves participants
often post newsworthy articles or leaked documents from
businesses or governments. EI-hosted web pages also link to
copyrighted articles. We believe these uses are protected
under US copyright law, which recognizes certain uses as
protected as fair use. We believe that some of these uses
may be considered infringements in countries with different
national copyright regimes. We believe our ability to host
email lists would be undermined by the Hague convention,
because we would be exposed to liability from foreign
infringement cases, including cases brought specifically to
punish EI or others who use EI's listserve or web page
hosting.
IV. Enforcement of non-negotiated "business to business"
contracts.
Essential Information is concerned with Article 4 of the
treaty concerning so called business to business contracts.
Our main concern is with non-negotiated contacts. A
particular issue for EI concerns provisions in some web
pages "terms of service" agreements that outlaw product
reviews, disparagement, parody, price comparisons or even
linking to articles without the express permission of the
web page owners. We believe these contracts are not
enforceable under current US law. But in some proposals the
Hague convention would require US courts to automatically
honor non-negotiated choice of forum provisions in
contracts, requiring EI to defend itself in foreign
countries, which is prohibitedly expensive for EI, and would
expose EI to foreign laws that are hostile to freedom of
information or speech.
V. The limitations of the Hague public policy provisions
for Internet publishing.
Finally, the current provisions allowing countries to refuse
to enforce judgments that run contrary to a nation's public
policy is welcome, but not very effective for the Internet.
EI hosts its own web pages and listserves, but we rely upon
companies to connect with other persons on the Internet.
For example, we have contracts with a subsidiary of
WorldCom, and firm with assets in many different countries.
Under the Hague rules, a judgment could be brought against
WorldCom, simply because WorldCom has the ability to cut off
access to our site, so the public policy exception would
have to be exercised in every country where WorldCom has
assets, which is a lot. Indeed, a judgment could be brought
against AOL, asking that they block access to an EI web page
or listserve. This is the practical flaw in the Hague
public policy exception for all Internet publishers. The
treaty seeks to make foreign judgments much more
enforceable, by obligating every member country to enforce
every other members judgments. To the degree that this
chills freedom of thought and expression on the Internet, it
will lead to less transparency and freedom, which threatens
the fundamental basis of journalism.
Thank you,
Sincerely,
Charlie Cray
Associate Editor
Multinational Monitor