follow-up. session 5

The interactive session was very interesting and dynamic thanks to the performance of both parties arguing pro and counter cyber-regulation. Congratulations on this and warm thanks.

In terms of improving the debate, I would recommend to concentrate on fewer arguments but then develop them more thoroughly. The use of examples is welcome and convinces the audience of the strength of your position. Do use however only one or two examples but be more precise and more detailed in their presentation. A simple enumeration of cases is not very helpful since these can often be interpreted in multiple (even conflicting) directions and can also be used as easy counter-arguments by the opposing party.
In terms of preparing for the oral exam, I would recommend looking not only at the descriptive dimension of the question of can cyberspace be regulated but also at the normative one - i.e. is it legitimate to regulate cyberspace? If yes, one should contemplate how this regulation should be designed and here it is important to consider the different levels of regulation (national, regional and international), as well as whether another modality of regulation would be more suitable. Under modality of regulation, I basically understand, as suggested by Lessig and as elaborated during the lecture, (i) law, (ii) social norms, (iii) markets and (iv) architecture. In cyberspace, the latter, i.e. code, could be said to often be displacing the law, which is a development that brings with it other and often problematic implications. Your argumentation for the exam does not need to be abstract however and you can readily apply your knowledge of ICANN, internet filtering and digital copyright.

Here are the slides of my brief wrap-up at the end of the session.

The last few slides present the Yahoo! case (La Ligue Contre le Racism et I’Antisémitisme v. Yahoo!, Inc., Superior Court of Paris, 22 May 2000), which is rather well-known and presents a situation where national jurisdiction (of France) has been 'extended' to a US based company because 'damage was suffered in France'.
While the judgment could not be ultimately enforced in the US, the Yahoo! case invites an intriguing discussion of cyberspace regulation. It is clear that people in different countries do not share the same perceptions of the world and how it should be organised. In this sense, with Yahoo!, we encounter the 'lowest common denominator' argument, i.e. if websites are subject to the laws of all jurisdictions from which they can be accessed, the legal norms of the most restrictive community will prevail.
On the other hand, if foreign courts cannot reach websites located in other jurisdictions, will the legal norms of the least restrictive community prevail? In the context of the Yahoo! case, if foreign courts cannot reach US-based entities, has the United States then imposed its relatively unrestrictive First Amendment on global Internet speech?