Robert's Stochastic thoughts brings first word of a very interesting incident in Italy. In his translation (slightly cleaned up here):
The magistrate Marco Patarnello has ordered the [temporary] preventive seizure of the site indymedia [http://italy.indymedia.org] for vilification of the Catholic faith and of the Pope. The prosecutor Salvatore Vitello requested this action, since an investigation by the DIGOS [police specialized in crimes against national security] revealed that there were montaged photos on the site showing Pope Benedict XVI in a Nazi military uniform.
In the leading leftist site, the Pope was called a “Nazi” and criminally insulted with insults in Spanish. Indymedia belongs to the Brazilian firm Imc, so the prosecutor has decided to make an official request that foreign judges take note of the act.
There's more at the site.
Internet lawyers will of course be waiting to hear what Joel Reidenberg has to say about this one. (Joel is the author of a very influential paper arguing that France had every right to try to stop Yahoo's US servers sending ads for Nazi memorabilia into France, and that US courts should not be shy about helping out.)
If Italy has a law that makes villification of the Pope and the Catholic church criminal, then Italy has every right and, indeed, has an obligation to enforce its law against a web site that targets Italians and violates Italian law. The site http://italy.indymedia.org web site is in Italian and, from the information posted about local events in Italy, apparently targets users in Italy. The Italian action is also consistent with the European Convention on Human Rights, Art. 10(2).
In a new paper, I argue that these type of actions will increase due to technological interactivity between web sites and users that justifies state jurisdictional authority. I also aruge that states should assert their powers so that technologies become available to enable Internet participants to respect the rule of law in states where their Internet activities reach. See “Technology and Internet Jurisdiction,” 153 Univ. of Penn. Law. Rev. (forthcoming 2005) at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=691501
BTW, thank you Michael for the compliment on my Yahoo paper, but I did not argue that the US courts should enforce the French decision. To the contrary, I think the US courts have no basis to issue a ruling. There is no ‘case or controversy’ in the US under basic civil procedure rules and the US courts have no legitimate personal jurisdiction over the French parties.
I object to the Italian law because I consider it to be inconsistent with freedom of speech. I think that freedom of speech is a universal human right which belongs to all people no matter what laws other people claim to have made. Also the Italian constitution guarantees freedom of speech.
I don’t object to the actions of the magistrates in question given the law (although they might have asked the consulta or constitutional court for an opinion). Prosecutors have very little discretion in Italy (in theory)). I share with Joel Reidenberg the view that the international rogatorio is not an extraterritorial application of Italian law, since the the site italia.indymedia.org is clearly aimed at Italy. I believe the photo is resident on a server in Brazil (probably not a Puerto Alegre).
I can’t really translate the word rogatorio. It refers to an official request for assistance from magistrates in another country. A very well known example is a request that Swiss courts force Swiss banks to reveal the beneficial owner of Swiss bank accounts. This sort of thing is in the news quite a bit over here, so I know the Italian word. Strangely I don’t know the English translation.
In any case the legal issues related to territoriality are a bit moot. I finally managed to get through to indymedia which was flooded after the news hit the front pages of Italian newspapers (and has been under denial of service attack for a while they say). I reposted the allegedly criminal post as an update. Since I am posting from Italy, obviously Italian law applies to my action.
I don’t know about the use of the term “rogatorio” in criminal cases.
In US in civil cases, however, we have the concept of “letters rogatory” which are a trans-national device in which a domestic court will request to have a foreign court order testimony or (sometimes other types of evidence) abroad from a foreign witness for the benefit of the issuing nation’s civil process. The US recognizes foreign letters rogatory, at least when there’s a treaty (and for all I know in other cases under principles of comity) and also if dim memory of law school courses serves, issues them on very very rare occasions.