A
Look at how U.S Based Yahoo! was Condemned by French Law
A
French court ruled in May, that U.S. based Yahoo! Inc. is in violation of
French Law and must therefore take the
appropriate measures to prevent Internet users in France from accessing one of
its Web site which auctions anti-Semitic material. Yahoo! Inc. claimed it was
a technical impossibility to comply with such a
court order. After hearing the recommendations from a court appointed
panel of independent technical experts, Judge Jean-Jacques Gomez is
expected to render his final decision on November 20th.
Richard
Salis,
Law student,
University of Montreal
>The
Judge's Decision of May 22, 2000 (Juriscom.net)
>The
Judge's Decision of November 20, 2000 (Cdt.org)
>Yahoo!
Inc. bans items of hate from auctions
>An
international discussion of the implications of the Yahoo! Inc. nazi
memorabilia dispute new!
>French
documents
On
November 20th, 2000, Judge Jean-Jacques Gomez of the Paris Tribunal
de Grande Instance is expected to render his final judgment on a case that
questions the right to which
local regulations can transcend their physical borders and exercise their
authority in the realm of cyberspace. This decision will determine whether
Internet media giant Yahoo! Inc. must comply with the court’s
previous ruling, reached on May 22nd, and "make it
impossible" for Web surfers in France to gain access to Yahoo! Inc.’s
U.S-based auction Web site which sells Nazi memorabilia online. In France it is illegal to sell or
exhibit anything that incites racism. Contrary to French law, this site is
legally accessible in the U.S, as freedom of speech, which includes free
expression of racist or extremist ideas, is protected by the first amendment
of the U.S. constitution.
>The
plaintiffs and their accusations
>The
defendants’ response to the accusations
>A
decision of unprecedented implications
>A
technical impossibility to comply ?
>Requiring
the advice of technical experts
>Experts
report their results
>Links
The
plaintiffs and their accusations
The suit
was brought forward last April in France by the International League
Against Racism & Anti-Semitism (LICRA) and the Union of French
Jewish Students (UEJF). These two Paris based anti-racism groups
vehemently accused Yahoo! Inc. of "banalizing the Holocaust,"
by enabling thousands of Nazi objects to be made available for auction each
day online, including films, swastikas, uniforms, daggers, photos and medals.
On May 15th, UEFJ expanded its lawsuit to include
Yahoo! Inc.’s local subsidiary Yahoo! France, who is
subject to French jurisdiction. UEFJ demanded that Yahoo! France remove
all hypertext links to Yahoo! Inc. which currently provide Web surfers
the possibility of accessing racist material.
Furthermore, UEFJ demanded Yahoo! France to explicitly warn its
French Internet surfers of the racist content that is found at Yahoo! Inc.
and thus navigating into the U.S. based search engine would put them at risk
of breaking French law.
The
defendants’ response to the accusations
In its
defense, Yahoo! Inc. argued that the French court did not have territorial authority to rule over such allegations as the
alleged fault was committed on foreign territory
(in the U.S.). As a result, this dispute should thus be subject to U.S. law
where such material, albeit controversial, is protected by the first amendment.
Yahoo!
France
pleaded in its defense that UEJF’s claims should
be dismissed as there was never intent to glorify Nazism or promote
beliefs of hatred by linking to Yahoo! Inc. Furthermore, Yahoo!
France attested that they do not personally promote any access to illegal
sites and services. In fact, Yahoo! France argued that it maintains a
strict policy of diligence and that its charter, which defines abusive
conduct, is made available to all visitors on its Web site.
A
decision of unprecedented implications
On May 22nd,
Judge Jean-Jacques Gomez of the
Paris Tribunal de Grande Instance announced his decision
[1]
that had unprecedented implications on the conduct of Internet
companies world wide. Judge Gomez ruled that the American Web site Yahoo!
Inc. could be sued under French law as long as the alleged infraction was
committed on French territory. The Judge ordered Yahoo! Inc. to prevent
all French Web surfers from being able to access its controversial auction services. Although
the Judge did not specify which technological solutions were needed to allow Yahoo!
Inc. to insure compliance with the court’s order, he maintained that the
giant Internet portal has the ability to identify the geographical origins of
the Internet surfers who visit its Web site. Yahoo! Inc. was
given until the 24th of
July to submit to the court the technical solutions it would implement so that
the verdict could be upheld. The Paris judge also ordered Yahoo! France
to eliminate all navigational links to its parent site Yahoo! Inc. and
install warnings to its Internet surfers of Yahoo! Inc.’s illegal
content. Both companies were jointly held liable and were ordered to pay
10,000 francs ($1,371 U.S.) in penalty to LICRA and UEJF.
A
technical impossibility to comply ?
On July 24th,
after two months of research and investigation,
Yahoo! Inc. pleaded to the court that they were not capable of abiding
by the May 22nd order
by virtue of the technical impossibility of blocking French Internet users
from its U.S. based Web site. In response to Yahoo! Inc.’s claim, the
prosecution accused Yahoo! Inc. of not taking the proper initiative to
find or develop the required solutions. The prosecution then recommended to
the judge that the court should appoint a panel of technical experts to
independently determine if and how such an apparent technological
impossibility could be
solved.
Requiring
the advice of technical experts
On August
11th, in a surprising turn of events, Judge Gomez, who was expected
to pronounce his final decision after considering arguments of both parties,
instead chose to implement the
recommendation made by the prosecution on July 24th. The Judge thus
announced that he would rule a final
decision on this case only after hearing from a panel of three technical
experts, one French, one American, and one European, assigned to determine the
existence of viable technologies
that Yahoo! Inc. could employ. Should such technologies be available, Yahoo!
Inc. would therefore be forced to comply with
the May 22nd court
ruling.
Experts
report their results
On
November 6th , the panel of three experts presented their findings
to the French court. They concluded that although some technologies where
capable of preventing Internet users, based on their geographical origin, from
accessing targeted Web sites, such
filtering was not considered full proof but
could only successfully restrict access approximately 80 percent of the
time.
Will
today’s technologies which can only guarantee an 80 percent success rate be
considered inadequate to satisfy French Law? Or will foreign Web sites
influencing populations abroad continue to operate out of the reach of local
legislation? These questions will finally be resolved on November 20th
when Judge Gomez will deliver his final ruling.
R.S.
Links:
>Reuters,
“French group sues Yahoo! over Nazi site”, Zdnet.com, April 11, 2000,
<http://www.zdnet.com/zdnn/stories/news/0,4586,2531519,00.html>;
>Reuters,
“French group takes Yahoo! to court over Nazi site”, Zdnet.com, April 11,
2000,
<http://www.zdnet.com/zdnn/stories/bursts/0,7407,2531484,00.html>;
>Julie
Krassovsky, “Yahoo! et les Nazis, deuxième round”, Transfert.net, May 16,
2000,
<http://www.transfert.net/fr/cyber_societe/article.cfm?idx_rub=87&idx_art=634> ;
>Julie
Krassovsky, “La France condamne Yahoo!”, Transfert.net, May 23, 2000,
<http://www.transfert.net/fr/cyber_societe/article.cfm?idx_rub=87&idx_art=875> ;
>Julie
Krassovsky, “La Licra et l’UEJF assignent de nouveau Yahoo! France”,
Transfert, July 14, 2000,
<http://www.transfert.net/fr/cyber_societe/article.cfm?idx_rub=87&idx_art=1192>;
>Julie
Krassovsky, “Yahoo.com manque de rigueur”, Transfert.net, July 24, 2000,
<http://www.transfert.net/fr/cyber_societe/article.cfm?idx_rub=87&idx_art=1246> ;
>Julie
Krassovsky, “Affaire Yahoo! : place aux experts”, Transfert.net, August 11,
2000,
<http://www.transfert.net/fr/cyber_societe/article.cfm?idx_rub=87&idx_art=1400> ;
>Brian Love,
Reuters, “Judge seeks advice in Yahoo! case”, Zdnet, August 11, 2000,
<http://www.zdnet.com/zdnn/stories/news/0,4586,2614541,00.html>;
>Reuters,
“Nazi auction ban may work”, Zdnet.com, August 11, 2000,
<http://www.zdnet.com/zdnn/stories/news/0,4586,2614697,00.html>;
>Jim Hu and
Evan Hansen, “Yahoo auction case may reveal borders of cyberspace”, CNET,
August 11, 2000,
<http://news.cnet.com/news//0-1005-200-2495751.html>;
>Julie
Krassovsky, “Procès Yahoo! : les experts, stars d’un jour”, Transfert.net,
November 6, 2000,
<http://www.transfer.net/fr/articles/imprime_article.cfm?idx_rub=87&idx_art=2448> ;
>Reuters,
“Nazi web site gag ‘impossible’”, CNN, November 6, 2000,
<http://europe.cnn.com/2000/TECH/computing/11/06/france.yahoo/index.html>.
On
January 2nd, 2001, Yahoo! Inc. announced that it has decided to ban
all items of hate from appearing onto its auction’s website. Such a change
in its auction’s policy will thereby allow Yahoo! Inc. to conform
to a November 20th French court ruling ordering the U.S.
based company to take appropriate measures to prevent French Internet users
from accessing it’s auction website, deemed to be in violation of French
law.
Richard
Salis,
Law student,
University of Montreal
In
a surprise conclusion to a lengthy legal battle, Yahoo! Inc. announced
on January 2nd, 2001, that it will cease to allow its users to
display Nazi artifacts and other hate-related items on its online auctions
site, stating the position that “it does not want to profit from items
that glorified or promote hatred”.
Such a
change in policy will begin as of January 10th,
and will thus allow Yahoo! Inc. to satisfy a French tribunal’s
November 20th ruling, ordering Yahoo! Inc. to
either block French users
from accessing the offending websites or
be fined 100,000 francs ($13,000) for
every day thereafter that it is in violation of this order.
Yahoo! Inc.’s changes to its auction site comes despite a
December 21st demand to a U.S. court to intervene on the grounds
that the French court is operating outside its jurisdiction to impose
sanctions on the website of a US company.
To prevent
hate items from appearing on its auction site, Yahoo! Inc. will
effectively screen out hate related items before they will be listed. Users
who believe that their item(s) do not qualify as being hate related will be
able to appeal such rejections to a human arbitrator.
While
supporting Yahoo! Inc.’s new policy, David
Kerr, Chief Executive of the
Internet Watch Foundation remains skeptical of how Yahoo! Inc.’s
decision will lead to a reduction of the tremendous amount of hate related
material on the Web. Kerr said that the Yahoo! Inc. change in policy
was strictly an “ethical” decision and that it will only amount to “a
drop in the ocean”.
R.S.
Links:
>BBC
News, “Yahoo hits back at Nazi ruling”, BBC News Online, November
21, 2000,
<http://news.bbc.co.uk/hi/english/world/europe/newsid_1032000/1032605.stm>;
>John
Naughton, “Yahoo! for brave French courts”, The Observer, November
26, 2000,
<http://observer.co.uk/business/story/0,6903,402959,00.html>;
>The
Associated Press, “Yahoo! to ban Nazi artifacts from auctions”, January 2,
2001,
<http://www.cnn.com/2001/TECH/computing/01/03/yahoo.nazi.auctions.ap/index.html>;
>The
Associated Press and Reuters, “Yahoo! Nazi auction ban welcomed”, January
3, 2001,
<http://www.cnn.com/2001/WORLD/europe/01/03/net.hate/index.html>.
