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Harassment from Hague
This is an overview on the past and current activities and dangers of the
Hague Convention on Jurisdiction and
Foreign Judgements in Civil and Commercial Matters
(short "Hague Convention" throughout this article), in response to Richard
M. Stallman's Article Harm from the Hague.
The Hague Conference is a long-standing but little noticed body of
international diplomacy, consisting chiefly of meetings conducted first in
Hague in 1893, then irregularily until 1956, after which meetings were held
every four years. It should not be confused with the
Hague Peace Conventions
of 1899, 1907, 1925/26 and 1965
The Hague Conference has 51 member states
at this time. Members range from most european nations to the USA, China and
some exotics such as Morocco or Korea.
In the past, the Hague Conference has had three major subjects, as seen on
their status list:
International trade and property transfers, international court proceedings
and - for good measure - child protection and family-related
The Act in Question
Even though it has worked close to unnoticed by media and the general public
for over a hundred years, the Hague Conference has entered the international
spotlight with its most recent proceedings. "e-commerce", the #1 buzzword of
2000, has found its way unto the Hague agenda in a
series of workshops
on the topic, as well as in a number of meetings and treaties.
The main focus of rms' article is the work on
Jurisdiction and Foreign Judgments in Civil and Commercial Matters
which aims to make court orders of one member state on civil and commercial
cases enforceable in other member states. In other words: Sue someone here
and have the result enforced wherever he lives.
This proposal makes sense for some cases, such as tourists or other foreigners
who may have left the country by the time you file suit. With the Hague
Convention, you can still get justice, without the need of a
lengthy, costly and for small claims often not justifiable extradiction
request, or alternatively a usually prohibively costly suit in a foreign
There is a number of dangers in this treaty. The most obvious is that
contrary to 2500 years of legal history, the playing field is tilted
against the defendant before even the slightest bit of guilt has been
proven. Specifically, the defendant suddenly sees himself confronted with
a civil suit in a foreign country. That which the treaty avoids for the
plaintiff, it shoves on the defendant.
However, the treaty does its worst damage in the area of the internet and
similiar virtual locations where an act can happen in any number of
places worldwide simultaneously. Specifically, the treaty goes to great
lengths to explain that the plaintiff may go to court in that member state
in which the "harm" occured - for webpages, e-mail, news postings or
similiar items that means pretty much everywhere.
With such a vague term, you will now be able to get sued in 50 countries
without even leaving your desk.
While there are a number of exceptions, all but the first apply
almost exclusively to multinational corporations. The exceptions cover
"immovable property" (real estate and buildings), corporate charters,
patents, trade marks, etc.
There is also article 22,
which might have been considered a stop-gap to some of the dangers layed
out herein, but I will show that it is completely ineffective.
First off, the article is bare of any obligation. It merely asks the court
to "consider" the listed points. In short, it leaves everything to the
judge, and doesn't even offer him a guideline.
In addition, things such as 2a) - "any inconvenience to the parties in
view of their habitual residence" - should strike even the parties drafting
this article as idioticity. There you are, writing a treaty about how
someone in Peru can sue someone in Finnland and then you talk about the
"inconvenience" of travelling the 7000 miles distance several times because
you put a trademarked word on your webpage.
Finally, even 22, 2 will almost always work in favour of the plaintiff,
thanks to part b).
So as we have seen, the exceptions and "considerations" are either
irrelevant or ineffective when it comes to individuals, i.e. you and me.
However, it is precisely individuals which are put at risk with the Hague
Convention. It is seldom a problem to get a multinational corporation into
an enforceable jurisdiction, as it will almost always already operate
within it, as the recent Yahoo case in France proved well enough.
The Hague Convention does however, enable the plaintiff to choose
the jurisdiction, and large organisations, corporations or other entities
that can as easily operate in Australia as in Canada will surely choose
whichever gives them the greater chances.
But the major danger of the Hague Convention is that it runs circles
around the national laws of the member states. For example, article 33
concerns itself with punitive damages - a concept unknown in many of the
member states. However, thanks to article 33, they will soon be well known
legal terms there. Because contrary to common sense, the article does not
set a maximum amount of damages to the lower value of the states
involved, but on the contrary the minimum amount to this sum.
In other words: even if you are living in a country where certain judgements
did not even exist so far, after Hague, this will no longer be true.
This also extends to whole classes of cases that couldn't even be brought
to court because there was simply no basis for them. Software or gene
patents may be disallowed in your country, but under the Hague Convention,
someone could sue for patent violation anyway, in a different member
state. If your unflattering article about someone is covered by free speech
in your country, there will surely be another one where the libel laws
are more to his advantage. You will never be safe from being hit by a
lawsuit, because with 51 or more states as diverse as those on the
no matter what you do on the internet, it will be cause enough for a suit
in at least one of them.
And if it's not, some of the smaller countries will surely be lobbied or
pushed into enacting a nice package of new laws. Buying a law has never been
so easy - 51 for the price of one now.
Do not forget that even if the judgement cast is obviously ridiculous, or
could have never been reached in your country, it still must be
enforced. The Hague Convention allows only a small class of judgements to
be even considered for refusal, such as if the judgement was obtained by
outright fraud or when it runs contrary to a state's constitution (I'm not aware of
any jugement from a civil case that could qualify for that,
since AFAIK even China reserves the death sentence for criminal cases).
Things get worse from here.
As seen above, the main victims of the Hague Convention will be private
individuals, who hold no patents or trademarks or any other of the few
exceptions of the treaty, and have no subsidaries in a dozen countries to
conveniently choose whichever jurisdiction suits them best.
These same private individuals most often do not even need a court
judgement to be silenced or forced into an agreement. Due to the
costs of a lawsuit, most private individuals simply fold when receiving
a "nastygram" (i.e. a threatening letter from the opponent's lawyers, often
making wildely exagerated claims).
After Hague, this will be much, much worse. Very few of those who read this
article will have the resources to fight an international lawsuit, even if
they had the will to do so. Worse, appearing in the court to defend yourself
is not only expensive, it also settles that said court has jurisdiction over
you (article 5).
However, if you do not appear, the plaintiff will file an entry of default
and the Hague Convention ensures that you are screwed.
After Hague, if some multinational corporation sends you a nastygram, you
have already lost. Without so much as a fight, not to mention justice. The
risk for not accepting this fact and insisting on a fight is simply too
high, especially for non-commercial, private or hobby interests.
It's already happening
The above paragraph is not one of belief or assumption - it's already
happening. As posted almost a year ago on my DeCSS page,
the DVD CCA lawyers Weil, Gotshal & Manges have already used the older
Hague Convention on
the Service Abroad of Judicial and Extra-Judicial Documents in Civil or
Commercial Matters (who comes up with these names?) in a vague reference
clearly intended to threaten the receipients (two other europeans aside
from myself were served with the same document) and dwell on their confusing
it with the Hague Convention which is the subject of this article and which
had just received first public attention.
It almost worked. If it had not been for the legally more educated people on
the dvd-discuss mailing list, who promptly informed me about the real situation,
I would most likely have done something stupid, such as writing a statement
to the court (which would have put me under its jurisdiction unless very
carefully worded - oops).
I hope to have shown clearly that for private individuals, i.e. the "demos" in
"democracy", or the "public" in "republic", the Hague Convention carries
incalculable risks and will greatly reduce their chances of justice. While
all humans might still be equal before the law, non-humans which can
live and operate in many places at once, such as multinational corporations,
international organisations and other legal bodies will have incredible
advantages. National laws will be circumvented by foreign legal and court
systems. The number of things forbidden will dramatically increase, and the
one new right you earn is so esoteric that almost certainly you will not
make use of it even once in your lifetime.
In short, this is a deal that would not stand the slightest chance if it
went through a public vote instead of being discussed behind closed doors
in a faraway and largely unknown conference.
After Hague, publishing anything more controversial than a picture of your
dog on the internet will be a dangerous activity. It is recommended that
you consult a lawyer before getting an e-mail address, to ensure that the
address you choose is not trademarked, copyrighted, patented or otherwise
protected in one or more member states.
I may be exaggerating, but don't forget that I have already been
threatened with Hague. This is my scream, and your chance to act before
there's nobody left to hear yours.