Tomorrow, hearings will recommence to examine whether or not French Internet service providers (ISPs) will be able to prevent French citizens from accessing Nazi materials on various web-sites based in the US. Internet libertarians may be concerned at the speed at which the French appear to have tackled the issue of whether or not it is possible to censor the Internet, instead of debating whether or not they should do so.
French law justifies the imposition of such controls because it makes the publication of Nazi material illegal, while the US constitution's first amendment makes it impossible to ban it. French limitations on Internet access may be justified by a desire to prevent the French from accessing the obnoxious slurs and lies that neo-Nazis use to justify their beliefs.
Such motives are open to question. For example, the Taliban in Afghanistan ensure Islamic purity by the simple means of only allowing one Afghanistani to go online. This rule may be justified by the concerns for the spiritual welfare of potential Internet users, but its real object may be to limit dissent and preserve the Taliban's political control.
In the same way, cynics may wonder, if controls are successfully imposed by the French court, whether similar controls may be sought to limit access to US-based e-commerce and entertainment material. Use of the Internet may transform free speech from being primarily a political right to an economic one: it may become the right to sell anybody the content which they want anywhere in the world at any time.
If free speech is seen as an economic right, then its proponents will find it easier to access funding. They may be able to invoke free trade agreements and the dispute resolution mechanisms of bodies such as the World Trade Organisation.
In light of this, the French court is examining the banning of US-based sites. A similar blockade on European neo-Nazi sites could infringe the free trade provisions of the various EU treaties, or possibly the right to free speech in the European Convention of Human Rights.
A variety of autocratic regimes around the world - such as Cuba, China and Saudi Arabia - have already imposed Internet censorship controls. One of the countries most successful in imposing control on what they consider to be dubious Internet content is Singapore, which forces all Internet access through a single service provider that rigorously screens out sexually explicit and politically dangerous sites.
In Ireland, the Censorship Acts remain in force. As the Irish censors continues to review books, films and magazines, it would certainly be possible to extend their brief to include the Internet. Nevertheless, any Irish ban on Internet material could be easily avoided by dialling up an ISP based in the North of Ireland or the rest of the UK.
Such a ban would encounter serious practical difficulties, but the Irish courts were willing to impose something similar with regard to abortion information in the case of SPUC v Grogan, although this was overturned following a referendum in 1992. The Regulation of Information Act of 1995 now controls how Irish people access abortion information, and this makes it unlawful to display a notice (including an advertisement) containing such information in or at a place to which the public have access, whether upon payment or free of charge.
Whether a website would fall within this provision is unclear. Although the act is only six years old it does not seem to have taken the Internet into account. If it did, an ISP might feel compelled to ban access to that site or face prosecution. Such a prosecution might not encounter any problems at a European level, as elements of SPUC v Grogan were endorsed by the European Court of Justice, and similar bans may be permitted by a protocol and declaration which Ireland succeeded in getting attached to the Maastricht Treaty.
Yet there are - basically economic - reasons why prosecution would not be taken. Such an action would cause difficulties for the marketing of Ireland as a country that enthusiastically encourages the growth and development of information and communications technologies (ICTs) and so affect foreign direct investment (FDI) in Ireland. Thousands of Irish people are currently employed by foreign companies which have already invested here.
If a ban were to be successful it would have to be applied to the internal e-mail and intranet systems of these companies, which may bypass the ISPs used by the general public. Demanding multi-nationals - which employ thousands of Irish people and bring millions into the Irish economy every year - to adapt or alter their internal systems is unlikely to benefit the economy, particularly in what may prove to be a global recession.
The ban would also have to be navigated through the dense thicket of Irish and European telecommunication acts, statutory instruments, directives, regulations and recommendations. Some of these might prove fatal to such a ban: for example the Television without Frontiers directive guarantees that all Europeans are free to receive whatever programmes their TV sets can pick up.
But more importantly, the Regulation of Information Act of 1995 itself should ensure that no Irish ISP will ever have to deal with injunction proceedings similar to those in SPUC v Grogan. It makes the display of notices containing abortion information a criminal offence, and the courts will usually refuse to grant an injunction to prevent the occurrence of a crime, which is by definition already illegal, and prosecutions for crimes under the Act can only be taken by the DPP.
Denis Kelleher is a practising barrister and co-author of Information Technology Law in Ireland.