IAMCR PORTO ALEGRE CONFERENCE. TITLES AND ABSTRACTS

The rise of Internet editions of newspapers and magazines and of broadcast media web sites and transnational satellite transmissions has created complex issues of jurisdiction for defamation law. The Internet permits a publisher or broadcaster to circulate stories instantly around the globe. It also creates the possibility of being sued for defamation in many jurisdictions. It gives the person who believes he or she has been defamed an advantage in selecting the most favorable forum. This is mitigated by forum non conviens law in some jurisdictions.

The paper focuses on Berezovsky v. Michaels,[1] a decision by the United Kingdom House of Lords, and Gutnick v. Dow Jones & Co.,[2] a decision of the High Court of Australia. In both cases jurisdiction was conferred on national courts despite the fact that the alleged libelous stories appeared in United States publications and had little to do with the United Kingdom or Australia. The reasoning of the courts and the law upon which the reasoning is based are analyzed.

Then the paper analyzes the decision of the United States Supreme Court in Calder v. Jones.[3] That decision involved jurisdictional conflict in libel suits among American states. It ruled that jurisdiction belongs in the state to which a story is targeted rather than where it is physically published or necessarily where the plaintiff resides. The analysis concludes that the principles of Calder are the most rational and fair means of conferring jurisdiction.

The conundrum arises from principles of U.S. constitutional law to which United States courts are committed and from the Duke of Portland principle to which most other common law countries adhere. It is not likely to be solved soon. The conundrum is messy but it benefits those who favor free expression and ultimately may force more censorious nations to liberalize their defamation law.

Freedom of the press, although generally regarded as a constituent of democracy, does not have the same meaning everywhere in the world. Differences in the understanding of press freedom exist e.g. even among the West European democracies or between Western Europe and the United States. Because press freedom refers to the system level and only international comparisons allow for assessing the "goodness" of a country's freedom of the press, we need a measure that can be used worldwide. This paper discusses the difficulties of measuring freedom of the press in international comparison and the problems of the two existing scales and finally makes a plea for a more differentiated perspective on the concept.

Sandhya Rao, Professor & Graduate Adviser, Texas State University, USA (sr02@txstate.edu)

The Republic of Moldova has been one of the poorest of the former Soviet Socialist Republicans since it broke from the USSR in 1991. In 2001, the Communist Party of Moldova was elected to a large majority in the parliament, allowing the CPM to appoint the president of the republic. This paper is an examination and discussion of the means used by the CPM subsequent to its election to control governmental and private news outlets in both the print and broadcast media. In particular, instances of legislative action, government administrative action, and government regulation changes are identified. In addition, threatening statements by prominent political figures and the outright arrest of journalists are discussed. To the extent that it affects governmental policy and actions taken by the CPM, the relationship between Russian- and Romanian-speaking ethnic groups is reviewed.

The central questions to be explored are whether the Communist Party of Moldova has restored or attempted to restore the anti-free press policies identified with the former Soviet system, and whether the journalists of Moldova have attempted to reverse the government's actions.

The sources of the information are various newspapers and magazines within the country, as reported to the world by Internet newsletters and Web sites. Additional background information regarding the country is taken from texts and Web sites posted by the United States government.

The results of the study indicate that the CPM has moved to limit free press by a number of means: legislative changes; changes in administrative regulations; administrative actions, including the suspension of licenses held by private radio and television concerns, the barring of certain reporters from official government functions, threats of censorship by high-placed government officials, and the arrest of some journalists. The paper suggests that the government and members of the press should try to attain the degree of press freedom available in other former Soviet Socialist Republics; specifically, the Baltic states of Estonia, Latvia, and Lithuania.

Dr. Yuval Karniel, senior lecturer in the School of Media and the School of Law

Israel is currently trying to defend itself in the midst of a Palestinian Intifada. The paper will focus on recent restrictions to free speech introduced by Israel in response to the Intifada.

The paper will also discuss the Israeli Freedom of Information Act enacted in 1998. We will attempt to examine the right of free access to information in light of Israel’s national security situation.

The paper will be a critique of the FOI Act and will examine in particular if the FOI is actually an effective tool or merely a symbolic gesture for the free flow of information in Israeli society.

Our objective is to re-evaluate the effectiveness of the FOI Act and to propose various mechanisms to protect the intent of the law and help create a more transparent society in Israel.

Nowadays you no longer have to be a telecom-related company to sell mobile service. Mobile Virtual Network Operators (MVNOs) are organization which use part of the Mobile Network Operators’ (MNOs) network in order to provide services as well as provide mobile telephony services to its customers but don’t have an allocation of spectrum. But excess demand exists for access to radio spectrum. Allowing access to spectrum shouldn’t not be subject to public interest , nor should it rest on harmful interference. It should rest only on a request from a financially liable party and treats the spectrum as the “property right” that can be transferred and rented to the third parties. Nowadays we can take MVNOs as a new application on open spectrum access. MVNO have chosen the best host MNOs network for itself (and for its customers) and offers customers the highest quality of service and coverage by switching seamlessly between mobile network operators. Opponents , however, argue that requiring MNOs to supply MVNOs with the service they require would have an adverse impact on incentives to invest in network infrastructure. Because operators invest in coverage in such outlying areas primarily in order to attract new customers to the network, who value the ability to make calls over a wild area even though they may make relatively little use of the network outside the main population centers. MVNOs will enable a small network to achieve the same coverage as a larger one without needing to match its investment, which will largely remove the desire to gain competitive advantage in attracting subscribers as a motive for network expansion.

For promoting the competition of mobile market, the regulatory intervention is still not the best way to work out. No need to impose on MNOs a mandatory open facilities and spectrum duty to MVNOs would be the correct idea of open spectrum access and make best use of spectrum. The OFTA of Hong Kong asked that 3G licensees have to lease 30%~50% network capacity to MVNOs according to mandatory rules. That causes more administrative costs and limits on the best mode of spectrum uses and it can be solved by market force driving with the premise of treating the spectrum as a property right , which will let the one needed the resource best to get it and make it efficiently.

This paper contributes to a better understanding of the complex environment created by the new MVNOs and existing operators. Part I describes the MVNO, including its concept and effects towards the whole mobile market. Further regulation and legal issues of maximum utilization of spectrum on MVNO will be presented in Part II. Then the regulatory cases and legislation of MVNO business in England, Singapore, Hong Kong, Japan as well as in Taiwan will be analyzed and weighed gains and losses in Part III. Conclusion and discussion finalized the paper in Part IV.

Our understanding of what is a legal system still has a long way to go even for the operation of municipal law. The many ideas contributed from natural law, positivism, realism, utilitarianism and so on are undecidable. There is far from any consensus on the coherence of a local legal system. The difficulties then become compounded in trying to transfer by analogy from an inconclusive domestic context to a universal one for the operation of international law. Globalisation on the other hand operates between the local and the universal in an ever-never land, which can be defined even less. It is like being all at sea, at the mercy of natural forces with only local on board resources and external bearings to guide. Natural forces dominate.

So where a globalised media needs to be regulated, can we just launch forth by democratic decision making to construct laws without recourse to any theory? Inappropriate norms at their best can be only ineffective and inefficient without an understanding of the natural way information space is organised, of the fundamental nature of law and of how information and law interact. Science itself can perhaps provide us with some technical guidance.

The paper explores the relationship between the state and the press, a relationship facing new challenges that raise age-old questions of security and freedom.

It reviews the statutes adopted or amended in the Russian Federation in late 1990s and this decade that have imposed new limitations on the freedom of the mass media in connection with the anti-terrorist operation in the province of Chechnya and related terrorist attacks on civilians in Moscow and elsewhere in Russia. In this context it covers the failed attempts by the government to impose self-regulation rules upon the media.

Special attention is given to several recent cases of governmental intrusions to ban publication of interviews with Chechen insurgent leaders in Moscow newspapers. The paper argues that these attempts to muzzle the press violate international obligations of the Russian Federation.

[1] (2000) 2 All E.R. 986 (HL).

[2] (2002) H.C.A. 56 (HC).

[3] 465 U.S. 783 (1984).