[Juriscom.net] In its November 20, 2000 decision, the French
judge affirmed the legal tie with France, finding that auctions
of nazi paraphernalia can potentially be of interest to anyone, including
French nationals;
and that the
auction sites showed publicity banners written in French whenever a visitor
connected from a terminal located in France.
What are your
thoughts on the French judge’s appreciation of the relevant criteria to
establish the Court’s jurisdiction?
[Joel R. Reidenberg] The French judge seems to have applied traditional
criteria to determine its jurisdiction over the foreign defendant.
There was an allegation that a foreign company violated French law
within French territory. The court
looked at the fact that Yahoo’s presence in France was not passive
and specifically noted that Yahoo actively targeted French users with
advertisements in French. Indeed, Yahoo’s arguments contesting the jurisdiction of
the French courts seemed disingenuous. Once the Court established that Yahoo,
Inc. displayed advertisements in French to visitors at the US-based server, Yahoo could not seriously contend that it did not intend those services
to reach a French audience and that it did not intend to profit from
French visitors. Similarly, where Yahoo’s
French subsidiary maintained a link to the US-based server, Yahoo was
clearly seeking to do business in France.
In
terms of substantive law, Yahoo wanted to apply the American First
Amendment doctrine to its activities within France.
Naturally, the French court rejected this line of argument.
The interesting question was the degree of compliance with French law
that the French judge would require. The
court’s own experts noted that 100% compliance with French law was
impossible to guarantee through filtering out French Internet users.
Yet, the court did not order the removal of Yahoo’s Nazi
material on the US-based site. Instead,
the French court’s order was for a ‘reasonable’ level of compliance with
French law within France.
Hypothetically,
in a reverse situation involving a French site with content reprehensible in
the United States, would an American court not have likewise affirmed its
jurisdiction?
While the First Amendment
doctrine in the US makes it unlikely that content permissible in France would
be considered reprehensible in the United States, an American court is
certainly likely to assert jurisdiction over a French site that contravenes US
law and is accessed in the United States. The
American rules on jurisdiction require that the defendant have
‘minimum contacts’ with the forum state and that the exercise of
jurisdiction is consistent with ‘fair play and substantial justice’.
According to the Supreme Court in the famous case of World Wide
Volkswagen v. Woodson, 444 U.S. 286 (1980), the defendant must
purposefully avail himself of the privileges of the forum state.
Here, if a French Web site were accessible in the US and sought access
by Americans, the site would be subject to US court jurisdiction.
Indeed, in a recent Internet gambling case, the Minnesota courts found
that an out-of-state gambling site that was legal in the jurisdiction where it
was located (Nevada), nevertheless violated Minnesota law since Minnesota
residents might gamble in violation of Minnesota law. (Minnesota v. Granite
Gate Resorts, Inc., 568 N.W.2d 715 aff’d 576 N.W.2d 747 [Minn. 1998]).
Is
there a risk that judges will systematically affirm their jurisdiction and
apply local regulations in cases involving foreign-based sites? What would be
the consequences?
Judges
in any legal system have a duty to enforce the laws within their territories.
I would not expect judges to ignore the violation of local laws by
foreign-based Web sites. However, I
would similarly expect that courts will need to find some nexus between the
foreign Web site and the local jurisdiction. To
the extent that companies seek to benefit from foreign jurisdictions on the Web,
then local courts can legitimately hold those companies accountable for local
regulations. The consequences would be
that companies will have to comply with the laws where they target business.
I am very skeptical of broad claims that such actions will destroy the
Internet.
What
consequences does this decision command in an international context?
Over
time and, if other courts follow the French approach, I think we will see a
change in the Internet infrastructure to allow easier geographically
segmentation. At the moment, Internet
advertising firms are able to segment on a rudimentary basis.
If legal accountability like that imposed by the French decision is
established elsewhere, companies will have an incentive to create an
architecture that enables compliance with local laws.
I think this is a more likely outcome than terms dictated by the most
restrictive laws.
Can the
freedom of speech guaranteed under the First Amendment of the U.S.
Constitution be characterised as a ‘’globalizing norm’’?
I
do not think that the scope of the First Amendment is a ‘globalized norm’.
Most countries do not accept the protection that the United States
gives to hate speech and pornography. The
French decision in Yahoo and the early indications that other countries
will follow the French approach demonstrate that such an expansive view of
speech is not popular around the world.
Should we
envisage the creation of specific international jurisdiction’s rules with
regards to disputes arising on the Internet?
Certain
types of disputes will more easily be settled with specific Internet
jurisdictional rules. In particular,
consumer transactions and commercial transactions are likely to benefit from
online dispute settlement mechanisms that operate in an arbitral manner. However, other matters like the Yahoo case, really fit
within the parameters of the classic conflict of law doctrine, especially
where public order policies are at stake.
Should we
consider that the information circulating on the Internet belongs to a space
outside of national jurisdictions, governed by its own specific modes of
regulation?
There
are specific modes of regulation for the Internet, namely technical rules and
technical choices affecting information flows.
However, the Internet exists in a real world and intersects with
territorial jurisdictions. National
jurisdictions will and should regulate those aspects of Internet activities
that affect their citizens.
Yahoo! Inc.
argued in its defence that imposing a filtering mechanism would in a certain
way undermine the very existence of the Internet, ‘’a space of freedom,
hardly receptive to any attempts to control and restrict access’’. What do
you think of such a suggestion?
This
suggestion was the posturing of a company that did not want to comply with the
laws of a country where it had business. In
fact, Yahoo was already taking advantage of filtering for advertising
purposes. Indeed, Yahoo’s
support of the hate materials on its Web site was an extraordinary display of
arrogance and hypocrisy. At the same
time Yahoo argued strenuously to keep Nazi glorification on its Web
site, Yahoo prohibited the sale of pet hamsters and used clothing!
Yahoo’s
use of advertising filters even makes the case that filtering mechanisms will
allow the Internet to flourish without compromising democratically chosen
public order values like those in France concerning Nazi hate.
Professor
Joel R. Reidenberg statements as collected by Lionel Thoumyre
Other contributions
