Kender’s case points to necessity of changes

The acquittal of writer Kaur Kender, accused of producing child pornography, because he wrote his text abroad that is therefore not subject to Estonian legislation shows that laws need to be taken into conformity with the digital age,” finds Jaan Ginter, professor of criminology at the University of Tartu.

Material published online needs to be treated based on the location of the author and where it is published – physical location of the server. Tallinn Circuit Court acquitted Kender a week ago because he was in Michigan, USA when his infamous short story “UNTITLED 12” was published, while the server of publisher is located in the United Kingdom. Kender was beyond the reach of Estonian laws - writes

I can write an article that violates someone’s rights in Austria. While the servers of Postimees might be somewhere in Ireland. Is it really still important where I am physically when the piece is published in the digital age?

When a digital-age person with no knowledge of the law reads the court’s decision, they will find it very surprising Kaur Kender’s case does not fall in the jurisdiction of Estonian courts at all. Kender’s text was aimed at the Estonian market.

We also need to look at the matter of international taxation: taxes should be collected from where the service is aimed. The location of a digital services provider – the location of computers used to offer the service – should not matter these days.

I tend to believe we will have to start considering at which group of consumers digital services are aimed in the future, both in terms of criminal matters and taxation.

When it comes to taxation, Estonia has suggested it should be a company’s virtual permanent place of business that matters. You pay taxes where you have your clients and where you create value. How to bring that to criminal law?

In the case of Estonia, it would be easiest to proceed based on language: if the work is in Estonian or is being discussed in Estonian, it is aimed at the Estonian market. Things become more complicated if the work is in English, German, Portuguese, or Spanish – it is possible countries speaking the languages should then have criminal jurisdiction over online texts in those languages.

No one, including myself, has given comprehensive thought to what the criminal jurisdiction of online texts could be; however, it is clear laws are evolving, and that the location of the server cannot be the decisive factor.

What about where the work was created?

I believe that the location where the work was born has no significance today. The important thing is who it is aimed at. Whether a piece of code or a collection of text characters has been compiled in one country or another… What does it matter whether a person writes something to a USB flash drive while on a plane in international airspace, in a foreign country’s hotel room, or at home?!

It is all the more peculiar to read the circuit court’s ruling that was based on the writer’s physical location at the time of the publication of the work and, what is more, the location of the publisher’s server.

It is peculiar. That said, the court’s decision is foolproof – that is the law right now. The law is from the pre-digital age. This set of rules simply isn’t compatible with the digital age. The court has no choice – it must follow the law and cannot make it up as it goes along.

Will the University of Tartu come up with proposals?

We will discuss it. This is an interesting matter.

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