Information Law Possum

These days, my article on the legal protection of (religious) sentiments finally came out of the printing press of the Swiss law journal “Aktuelle Juristische Praxis” [AJP].

In the paper, I argue that it is better to strengthen social norms through appropriate procedures than to replace them by substantive rules aimed at protecting emotions.

In Switzerland, Article 261 of the Criminal Code states: “Whosoever openly and invidiously insults or derides the beliefs of others in matters of faith, in particular the belief in God, […], will be subject to fine or a prison sentence of up to 6 months.” Similar provisions can be found in the laws of many other countries on the European continent. Their purpose is to protect public order by shielding the faithful from undue encroachment.

The nature of emotions, and especially the nature of religious sentiments, sets boundaries to the protection of emotions via substantive law: On the one hand, a legal rule aiming to protect emotions cannot—and ought not to—be entirely subjective; on the other hand, objectifying emotions necessarily involves their valuation. Yet, emotions are protected by law to a certain extent precisely because they are subjective and inaccessible to the valuation of others, be it another person or the judiciary. Therefore, objectifying emotions to a certain extent contradicts the very purpose of their legal protection.

A year ago, the publication of a dozen cartoons of the prophet Mohammed by a Danish newspaper caused a huge stir in Western Europe and in the Middle East, and to a lesser extent, as I understand, also in North America. In the light of Article 261 of the Criminal Code, the publication of the cartoons is not punishable, despite the fact that many Muslims, and by far not only the zealots, felt deeply offended by them. Obviously, the sensitivity of members of different religions of the world as to the ridiculing of the founders of their religion greatly varies.

The law, in contrast, cannot take that into consideration for various reasons, and protect each belief in a different manner, according to their degree of sensitivity. As a consequence, the protection of religious sentiments does not depend on the intensity of an encroachment, but rather—and arguably to a high degree—on the cultural background of the judiciary. In these cases, the law becomes ineffective, as it cannot fulfill its function of ensuring public order anymore.

In my paper I suggest that Article 261 should be repealed.

Instead, I argue that the provision should be replaced by a procedural mechanism which to some extent parallels existing concepts of criminal mediation, and which I chose to name a palaver*: Whoever nowadays would file a criminal complaint under Article 261 of the Criminal Code should be enabled to initiate a legal proceeding with the author of the statement concerned, in which he or she can confront that person and discuss the issue. (I am skipping the details of the procedure.)

The palaver could lead to either an apology or heated argument, ore something in between, depending on the good faith of the parties. Either result is a good one because in both cases, negative emotions caused by the concerned statement can be effectively canalized within the procedure and thus absorbed. As media coverage of the palaver can be expected particularly in cases where an offensive statement and the reactions thereto have received high publicity, the palaver will also give those people some satisfaction who do not take part in the proceeding but were nevertheless offended.

Last but not least, the remedy hopefully will have a preventive effect: Whoever is going to make a defamatory statement on religious matters in the public, i.e. via more or less unidirectional media, has the prospect of being confronted with his or her statements in a face to face situation. Since most humans tend to be more moderate and tactful in the presence of a person they know they might offend, odds are that they behave the same way when they speak or write in public. In other words, odds are that the remedy I suggest leverages the social norms governing face to face conversations in a way that they are respected when people speak through the media, instead of overriding them, as the substantive legal norm of Art. 261 of the Criminal Code does.

*) After a proposition by J.N. Druey. Palavers are known as important dispute resolution mechanisms in archaic societies.
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Update: Following a suggestion by my friend and colleague James Thurman, I replaced “religious emotions” by the more precise circumscription of the uncircumscribable, “religious sentiments.”

On Friday, the FIR-HSG is holding one of its traditional information law discussion circles on the law and virtual worlds, with a special focus on non-intellectual property law. (That is, it’s not about the absence of intellectual property nor do I claim that property law isn’t intellectually challenging—you know what I mean :) Our colleague Stefan Bürge is going to talk about his Master thesis, entitled “Online Gaming – Real legal stumbling blocks in virtual worlds”.

So this is a good occasion to muse about a framework for legal research into this extremely exciting topic. Having that framework is not an accomplishment itself, but it might be useful in order to frame research questions more precisely and discover possible lacunae in existing scholarship on the topic.

The following categories might be a useful starting point for a more sophisticated taxonomy. They are of course interrelated and not entirely separable from one another, and the situations where this tentative framework could be useful might be even rare.

Here are my suggestions:

• Our law applied to legal issues of MMORPGs of our world, in particular to the game provider and his customers. This could be anything from the law of contracts (EULA/terms of service), business method patents, new legal forms for MMORPGs, etc.

• Our law applied to things that happen in virtual worlds. From this perspective, virtual worlds are all about information law because they are not much more than information. Research topics could include the copyrightability of goods created in virtual worlds, libel and slander in virtual worlds, etc.

• The law of virtual worlds, as created by their residents. Basically, this could be any field of law that could be created from scratch by the residents of a virtual world. Subjects would include the constitution of and constitutional rights in virtual worlds, virtual land and chattels, the emergence of informal or formal criminal law in virtual worlds, etc.

• What looks like the most interesting to me is the last category: The relationship between the law of virtual worlds and our law. Virtual worlds and their law—ultimately as parts of this world we live in and our law—do interact with this world, not only vice versa. How this happens could be analyzed, for instance, from the perspective of Talcott Parsons’ and Niklas Luhmann’s systems theory. But the field is much broader: We could ask, for instance, what the relationship between (real world) code and the law in virtual worlds is: e.g., if the code of the game permits theft or rape in the virtual world, can or should that be illegal in the physical world and/or in the virtual world? Or, last but not least, the border can be crossed by teaching law, like Charlie Nesson’s extension school course and his planned moot court in Second Life.

I admit I’m too (1) busy, (2) lazy, (x) tired to do a reality check with this framework. If you, dear reader, want to do it, that would be great–I would suggest that you start with the 1400+ blog posts on virtual worlds at HLS and see whether it makes sense to categorize them within the framework.  A notice of your results would be greatly appreciated.

Write about human rights!

Mention the Tiananmen square massacre and express your support for a free, independent Tibet. Don’t forget to link to such subversive organizations as the Open Net Initiative, Human Rights Watch, the Berkman Center, and the BBC.

Then, it will be difficult for a Chinese plaintiff to prove that your blog has actually been read in China, which doesn’t prevent him from suing you, though.  But suing you for what you have posted on your blog is also more difficult for a lawyer if he cannot access your blog from his country, so you’ll be safe.

As David Weinberger reports, the company behind the German blog autoregional.de is being sued by a Chinese bus manufacturer for unfair competition:  A couple of months ago, the Spiegel magazine and many other German-speaking media reported that the Chinese automotive group Zonda has stolen the design of the “Starliner”, a futuristic luxury bus developed by the German manufacturer Neoplan. (Here are some pics of the corpus delicti.)   The German blog autoregional.de quoted the Spiegel article and added the sentence: “This example shows how fast and ruthless Chinese are when it comes to copying.” Now, Zonda has sued the owner of autoregional.de for unfair competition.

What’s interesting about this case isn’t only the issue of jurisdiction (think of Dow Jones v. Gutnick and Bangoura v. Washington Post), but also the apparent chilling effect of the lawsuit: The author added three statements (in a very formal language, but not legalese) to his post that are worth translating (I’m trying to stay as close to the original text as possible):

„Statement, 01/05/2007: Given the tight economic relations between the People’s Republic of China and Germany, I–as the author of the post–would like to point out that in order to draft the text, I performed due research on the internet in October 2006. The German press only featured information that contained the situation described [in the posting, ed.]. Our Google Analytics analysis has revealed that the article actually has not been read. Probably, only a handful of Google visitors from Beijing read this post. It is not in my interest as a blogger to interfere with the relations between these two states. I myself have given a keynote on an Online Marketing Conference in Shanghai in summer 2006 and enjoyed the hospitability of the country. Therefore, I would also like to retract my „harsh wording“. I am also happy to report on it if the legal situation is different. [meaning of that sentence unclear in the original text, ed.] Should the legal situation be different, I formally apologize to the Chinese bus manufacturers. But for this purpose, I need sufficient information and detailed facts.“

„Statement, 01/07/2007: Thanks much for your comments. Unfortunately, many of them are solely libelous against China and against the Chinese bus manufacturer. In view of the pending litigation in China, I am unfortunately unable to clear them for publishing. Thank you for your understanding.“

„Statement, 01/08/2007: The post has been changed–the disputed sentence has been deleted. However, it has been cited sufficiently in the press.“

Zonda’s legal department might want to read Urs Gasser’s post on the effects of the Tron lawsuit.