In areas ranging from the so-called “right to be forgotten” to intellectual property to defamation, there is an ongoing debate over how legitimate national laws and preferences should be applied and enforced online in the content takedown context. At the core of this dispute is whether public international law doctrines of territoriality extend to digital spaces, or whether different presumptions should govern online.
In a new working paper released today entitled “Here, There, or Everywhere?”, Cyberlaw Clinic students Alicia Solow-Niederman (J.D. ’17) and Javier Careaga Franco (LL.M ’17), along with the Clinic’s Assistant Director Vivek Krishnamurthy and Clinic Advisor Nani Jansen Reventlow, offer a descriptive perspective on this debate. Using a case study method, the paper seeks to answer the question of what formal legal process determines whether objectionable online content remains accessible or removed and what territorial principles are emerging on the ground as courts tackle these questions.
By so doing, the develops a a taxonomy of global content takedown orders. Within the observed sample, the intended territorial scope of courts’ orders predominantly aligns with geographic boundaries, with this trend especially dominant in copyright disputes. This descriptive finding sets the stage for both further empirical work and policy prescriptions about the ideal role of the legal system in this domain.
Nani Jansen Reventlow and Vivek Krishnamurthy will be presenting the key findings of the paper at RightsCon in Brussels on March 30, 2017. More details on the event can be found here.