Late last month, Bertelsmann, the giant publisher, pulled Mein Kampf, the Nazi manifesto that Adolf Hitler wrote before he came to power, from its online bookstore. Barnesnoble.com also stopped selling this book. However, Amazon.com continues to sell Mein Kampf.
Why is this an e-commerce issue? The sale of Mein Kampf is illegal in Germany. Germany has a statute that makes it illegal to distribute unannotated hate literature. Even though Bertelsmann's online German service never sold Mein Kampf, it was available to Germans from its English and French services. The Simon Weisenthal Center in Los Angeles had filed a complaint with the German Justice Ministry accusing Barnes & Noble and Amazon.com of violating the German law by selling a wide variety of hate literature to German customers in violation of German law.
This incident raises a critical e-commerce question. Selling on the Web is by definition international. There are no mechanisms in place to stop those who browse the Internet in one country from viewing Web sites originating in another. The issue that looms large for anyone who has a Web site that contains advertisements or offers goods or services is whether their goods, services, or ads violate the laws, customs, or sensibilities of those who view the site in foreign countries.
There are many examples of these potential and actual problems. It is very common in the United States for us to view comparative advertising in which Product A states it's better than Product B or faster than Product B or contains more cleansing power than Product B or rids you of your headache quicker than Product B. Comparative ads have been accepted in the United States for decades. Yet these very same ads not only are considered in poor taste and are ineffective, but also are illegal in several European Union countries where running comparative ads violates local law.
Advertisements that might be considered erotic but perfectly legal in the United States may be considered obscene in other countries, particularly Third World and Muslim countries that have a much higher degree of sensitivity in regard to sexually oriented text and pictures.
Last year, U.S.-based Compuserve was cited for violating German obscenity laws. Art auctions are proliferating on the Web. In the United States, one would most likely be able to make a successful argument that the owner of a painting who is trying to sell the artwork at an auction would be entitled under the doctrine of fair use to have a copy of the painting appear in the auction catalog (there are no U.S. cases on point and other copyright lawyers might disagree).
In France, however, a recent court ruling held that auction house catalogs are not fair uses and that a royalty must be paid by the auction house or the consignor to the owner of the copyright in the painting being offered for sale. As such, any online art auction house which shows a picture of the artwork being auctioned would be liable for copyright infringement in France (and in other countries that follow the French lead).
If one sells vitamins or other kinds of packaged foods online, their labels might pass the requirements of the Food and Drug Administration and the Federal Trade Commission. But if you advertise those same products and ship them to foreign countries, you may find yourself violating various countries' drug and food labeling statutes. Processed foods from the United States that are advertised on a Web site and shipped to Europe may violate the health laws of the European countries. While the United States considers itself to be very strict in terms of health regulations, our counterparts in Europe do not always agree. Today, a great number of food products in the United States contain elements made from altered genesâ039corn syrups, soy products, cottonseed oil, and the like. These products might not be legal in Europe or, at a minimum, the disclosure requirements for such products may be much more stringent.
Suppose a U.S.-based Web site with the new technology known as streaming video presents a movie online, but has modified it to make it "suitable for the Web," as networks often edit movies for television. In the United States, the courts have held that the owners of the various rights in a film might not be able to object to colorization or editing for television, but that is not universally the case. Other countries have recognized a concept called droit moral. In such countries, the rights of film directors to control how their films are shown is much greater than those granted to American directors. As such, to show any edited or colorized movie on a Web site could put the Web host into violation of the moral rights of the director in a number of countries and liable for suit.
The laws of libel also vary greatly from country to country. English laws, for example, are much more stringent than their U.S. counterparts. Many of the defenses in defamation actions recognized in the United States are not accepted in England. Therefore, a nonactionable article that would appear on a U.S. Web site could very well lead the author and/or Web site proprietor to be liable for libel in England.
Conversely, in England the rights of publicity are not recognized to the extent that they are in the United States. Therefore, a British Web site might utilize the names or likenesses of certain celebrities in a manner that would be quite appropriate in England, but would violate the U.S. laws of publicity as set out by the various states, causing the British entity to be sued in the United States.
The above examples are just the tip of the iceberg. When one begins to analyze the local, state, federal, and international laws that affect those doing business on the World Wide Web, even after one deals with the various legal obstacles, the cultural aspects as to what they will find to be acceptable is a daunting task. What is taboo? What would be useful marketing? What would be offensive? These considerations raise another level of problems for those trying to market on the Web.
I recently attended an internet law symposium, and one of the panels was on international aspects of the Web. I raised the issues presented here to the panelists. They all conceded that problems exist, but that sufficient answers are as yet unavailable. What is clear is that the continued globalization of our economy, of which the Web is a great facilitator, will only exacerbate these problems.
Companies that fill orders and have a presence and assets abroad can become real targets for individuals and governments who feel that the entities' stateside Web site have violated their laws. No matter how many treatises we read on foreign laws and regulations, there is no substitute for good local counsel. Such issues as the way statutes and regulations are interpreted, their nuances, facilitating resolutions, and the manner of qualifying are generally going to be outside any U.S. attorney's expertise. The lawyers who will succeed in properly advising their clients on these matters will be those with the greatest network of international counsel.
One suggestion offered (although its usefulness is questionable) would be to place disclaimers on Web sites. We are all familiar with disclaimers for sweepstakes and other types of contests that state, "This offer is not available to residents of X, Y & Z states." Perhaps certain of the issues raised above can be dealt with disclaimers of that type, stating that these offers are not available to people in certain countries or that various goods will not be shipped to certain countries. It is a prophylactic step, more of a Band-Aid approach than a solution. What I think we might begin to see are more company Web sites where the home page is a logo and the flags of different nations. Residents of those countries would click on their flags and a hyperlink would take them to Web sites in their native language, vetted by local counsel to assure that they don't violate any local laws, sensibilities, or customs.
Anyone aspiring to be an IP attorney dealing in e-commerce must become proficient in international copyright and trademark law and develop a network of local lawyers around the world who can assist in the structuring of e-commerce Web sites so that they minimize, if elimination is impossible, the risk of running afoul of foreign statutes, regulations, and customs of trade.