Suddenly, the frontierless Internet is running up against real borders

By Lisa Guernsey

A French judge named Jean-Jacques Gomez made Internet history, and attracted a flock of critics, when he ordered the Yahoo Web site prevent French residents from viewing Nazi memorabilia in its online auctions last year.

To Yahoo, the appearance of Nazi uniforms and other objects was simply an unintended byproduct of the borderless Internet: the items, which were being offered by sellers all over the world, happened to be on French computer screens.

But Judge Gomez was intent on upholding French law, which largely prohibits the display of Nazi insignia. He ordered Yahoo to keep French viewers from seeing Nazi items and to keep pro-Nazi comments from appearing on any Yahoo pages available in France - or to pay fines of more than $A26,000 a day.

His decision raised the question of how one jurisdiction can decide what can or cannot be displayed on the World Wide Web.

American civil rights lawyers railed against the ruling. "We now risk a race to the bottom," said Mr Alan Davidson, a lawyer for a non-profit group, the Centre for Democracy and Technology. "The most restrictive rules about Internet content - influenced by any country - could have an impact on people around the world."

But Judge Gomez has company. In recent cases, judges in Germany and Italy have come to similar conclusions, declaring that national boundaries do indeed apply to the virtual world as well as the physical one.

A judge in one case said that German hate-speech laws could be applied against an Australian who posted material disputing that the Holocaust occurred. An Italian judge ruled that his country's libel laws pertained to any online information that could be read by an Italian.

Suddenly, the seemingly borderless Internet is ramming up against real borders. The imposition of jurisdictional laws could mean that online publishers decide either to keep some material off the Internet entirely, for fear of criminal and civil charges filed in different countries or even different States, or to install online gates and checkpoints around their sites, giving access to only certain viewers.

The legal battles are being fostered by new technology that appears to make those online checkpoints possible.

In the past year, software programs have been released that are supposed to figure out where people are at the instant they gain access to a Web site. By conducting real-time analyses of Internet traffic, a technique sometimes called geolocation, these software programs can try to determine the country, the State and, in limited cases, even the city from which a person is surfing the Net.

Based on that extrapolated location and with the use of programs such as keyword filters, the software can then block Web pages from being seen, essentially putting a tall fence around part of the Web.

"We are now seeing geographical zoning online that mirrors geographical zoning offline," said Mr Michael Geist, who teaches law at the University of Ottawa. "The view of the Internet as borderless is dying very quickly."

Few examples of geographical zoning exist so far, but the impact could be far-reaching. People in countries that prohibit gambling may find that they are blocked from visiting gambling sites.

In the United States, the software could provide communities with new justification for enforcing local obscenity standards online. If that happens, residents of one city may not be able to see material available in another.

Of course, there are still serious questions about whether these technologies can determine locations with any certainty.

But it was the very existence of geolocation technology, its flaws aside, that influenced Judge Gomez's decision in the Yahoo case. To determine the feasibility of online zoning, he convened a panel of three technology experts that reported in November that automated software could probably pinpoint the resident country of about 70per cent of online users in France and added that if Yahoo also asked its users to state their nationality, the site could keep content away from as many as 90per cent.

The New York Times