Fortress Iceland? Probably Not.

Today, the Icelandic Modern Media Initiative ("IMMI") will file a final proposal to the Icelandic parliament to update that nation's journalism laws into a reporter's dream.  But frankly, I'm pretty sure it won't be much help to journalists around the world.

The IMMI is pursuing a quite radical overhaul of Icelandic law to attract media companies and journalists to the country, writes BBC News.  Indeed, one of the proposal's key proponents is Julian Assange, editor of the muckraking Wikileaks website.

"If [Iceland] has these additional media and publishing law protections then it is likely to encourage the international press and internet start-ups to locate their services here," Mr. Assange said.

He believes the political mood in Iceland is receptive to the need for change.

"The Icelandic press has itself suffered from libel tourism, so there does seem to be the political will to push this through."

The IMMI proposal addresses all aspects of media law, beefing up protections for whistleblowers, reporters' sources, and communications with those sources.  It also aims to reduce prior restraints, libel tourism, and the statute of limitations for bringing lawsuits against publishers.  Plus, it offers protection to ISP hosts and implements fee-shifting for winning media defendants.  All in all, it really does seem to be as Mr. Assange describes: taking the best journalism-protection laws from around the world and putting them together in a single jurisdiction.

It's too bad that it probably won't help much.

See, the problem is that whatever Iceland does, it can't change the 500-pound gorilla of international media law: the principle that publication happens at the point of download, not the point of upload.  The poster child case for this principle is Dow Jones & Co., Inc. v. Gutnick, a case that reached the High Court of Australia in 2002.  In that case, Gutnick sued Barron's Online for publishing an allegedly defamatory article about him, and despite the fact that no one in Australia other than Gutnick's lawyers actually read the offending article, the judges unanimously ruled that Australian laws applied, and thus Dow Jones (publisher of Barron's Online) was liable to Gutnick.  At least at the time, the High Court of Australia was the highest court worldwide to hear a case involving this issue, and for better or worse, its ruling has carried the day in similar cases around the world since.

(An aside: I'd definitely put this ruling on the worse side.  Indeed, I think it's a colossally stupid ruling, as the High Court fundamentally misunderstood how the technology works.  Judging from the judges' language, they seem to be hung up on a concept of Internet publishing as broadcasting: i.e. a publisher's proactive push of an article into the hands of the reader, much like a television station's broadcast. Rather, the model should be that of print. The publisher creates his publication (an online article) and makes it available to the public at his newsstand (or in this case, website).  If someone wishes to read the article, she has to come to the newsstand/website, create a copy of the material there, and bring it home with her to read (at her home computer).  Now consider if an Australian came to New Jersey, picked up a copy of the Barron's article from a newsstand there, and then flew back to Australia and read it.  Would the High Court really say that their laws should apply in such a situation?  I doubt it.)

With the Gutnick ruling setting the current paradigm for international jurisdiction, the IMMI is not nearly the journalistic fortress it's meant to be.  Plaintiffs will still be able to sue in a libel-friendly jurisdiction (like London, for example) and thereby circumvent all the protections the IMMI is meant to offer.  To be sure, if the publisher and his assets are entirely within Icelandic jurisdiction, the plaintiff may not be able to do much about the publication.  But as the Berkman Center's own Jonathan Zittrain told the Associated Press:

"Unless the executives behind a particular media company are themselves prepared to move to Iceland, I'm not sure how substantial the protections can be," he said. "A state can still demand that someone on its territory answer questions or turn over information on pain of fines or imprisonment."

And, at least in the US, there's also the prospect of judge's applying US rather than Icelandic law under open-textured and discretionary conflicts of law doctrine. 

It's too bad, because it's quite a commendable effort by Iceland.  Hopefully, if the proposal becomes law, Iceland will have a mini-renaissance of investigative journalism.  And if that happens, maybe other jurisdictions will decide to adopt similar protections.  But I wouldn't recommend relocating your blog to Iceland just yet.  Even if Iceland's laws offer the best protections in the world, they're still just a Maginot Line.

(Arthur Bright is a third-year law student at the Boston University School of Law and a former CMLP Legal Intern. Before attending law school, Arthur was the online news editor at The Christian Science Monitor.)  

Photo "Not of this Earth - The Bubbling Sulfur Pools of Iceland" courtesy of Flickr user stuckincustoms, licensed under a CC BY-NC-SA 2.0


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