New web law
Man residing in the USA was extradited and tried for
web site content
According to the New
York Sun, this fellow was arrested, extradited and sent to a
foreign country, where he was convicted and sentenced to five years
in prison for "inciting racial hatred". This included his
online web publications, most notably his publications on a
Holocaust Denial web site. The story notes that his worldwide
publishing caught the attention of several countries and crossed
many national jurisdictions:
"For over a decade, Mr. Zündel has become a primary
contributor to one of the main Holocaust-denial Web sites,
Zundelsite.org, Ms. Krenz said.
Ms. Krenz said Mr. Zündel had moved to Tennessee with his wife
in 2001, only to be arrested by immigration authorities and
extradited to Canada two years later. The Canadian authorities,
who had long wanted to prosecute Mr. Zündel, in turn submitted
him to their German counterparts in 2005."
In this case, the man
published offensive documents such as "The Hitler we loved, and
why", yet even though he was residing in Tennessee, he not not enjoy America's free speech, and is facing
a foreign prison for expressing his opinions. The story says
that he was apprehended by the US Immigration department, he may not
have been legally residing in the United States.
In the USA, you cannot be punished for defaming the dead, under
the legal assumption that no libel can exist against a dead person.
However, it appears that in Germany it's a serious offense to dishonor
"the memory" of the deceased. For
example, a German historian who claimed that Auschwitz prisoners
enjoyed cinemas, a swimming pool and brothels was sentenced to 10
months in jail.
Germany has exercised their right to extradite anyone who published a
web site that can be seen in Germany, regardless of where the author
In Germany and Austria, it's a crime to deny the Holocaust, even
if you are living in America. Germany does not agree with what
Voltaire said "I do not agree with what you have to say, but I'll
defend to the death your right to say it".
Be warned if your blog is accessible in countries
without free speech
This extradition and conviction has huge ramifications for anyone
who publishes anything on the Internet, even if it's just a chatty blog
or posting in a chat room. Anyone who writes on the web is
now required to follow the laws of every country from Afghanistan to
Zimbabwe, anywhere that your web page might be accessible. For
example, the Australian courts have rules that any web page
accessible in Australia subjects the author to the jurisdictions of
the Australian courts.
Dubbed "thought crime", many foreign courts are now reaching out
to offensive Internet web sites across the globe, trying to
extradite people to foreign lands to face prison.
In the USA we protect our First Amendment rights to Free Speech,
and even offensive and hateful opinions are legally protected.
However, even in the USA there are limits to free speech,
especially when it defames or libels a person or group, and you
cannot scream "fire" in a crowded theater.
The worldwide legal landscape
Let this be a warning to all bloggers and chat room participants
that you may find yourself being extradited to a foreign land to
face charges that are covered under the US right to free speech.
Even the act of
linking to illegal or libelous content can get you arrested, as
hyperlinking is considered "advertising" and repeating the onerous
For example, in Australia, it appears that defamation and
libel laws are so strict that they can become criminal offenses, and
haul the authors of defamatory publications into Australian courts
for publishing defamatory comments anywhere in the world.
In South Australia, Victoria and the Northern Territory under
common law any libel of sufficient seriousness can lead to
In a landmark case, Australia's highest court on Tuesday gave a
businessman the right to sue for defamation in Australia over an
article published in the United States and posted on the
Let this be a lesson to anyone who write comments on the web that
our cherished freedom of speech has limits and that the long arm of
the law can reach across the globe.
US limits to free speech
Even within the USA, your blog or web page might cause you to get
This is especially
true with regard to false publications so inflammatory that they
would incite a reasonable person to committing illegal acts. In
these cases below, the Defendants published lies that were so
offensive that the publishers could reasonably forecast harassment,
threats and intimidation to result from their publications. (see
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), Cohen v.
California, 403 U.S. 15 (1971), Feiner v. New York, 340 U.S. 315
(1951), Cox v. Louisiana, 377 U.S. 288 (1965)).
We must remember that the "right to your own
Constitutional limits and those who defame others cannot drape
themselves in the First Amendment and prevail: (see
Boyce v. Wake County)
"The use of a known lie as a tool is at
once at odds with the premises of democratic government and with
the orderly manner in which economic, social, or political
change is to be effected.
Hence the knowingly false statement and
the false statement made with reckless disregard of the truth,
do not enjoy constitutional protection."
The US Courts have the right to restrict speech
if the speech constitutes "Fighting Words". Fighting Words means
speech usually intended to be a personal insult and directed to a
specific person, which by their very utterance inflict injury and
tend to incite an immediate breach of the peace.
"Fighting Words" are not considered free
speech, and they are not protected under the
First Amendment because their slight social value is outweighed by
the government's compelling interest in social order. (see
Supreme court decisions 315 U.S. 568, 403 U.S. 15, 340 U.S. 315, and 377 U.S. 288).