YAHOO! CASE
TRIBUNAL DE
GRANDE INSTANCE DE PARIS
May
22, 2000
UEJF and Licra
v. Yahoo! Inc. and Yahoo France
>Summary
of the whole case
>The
Judge's Decision of November 20, 2000
(Cdt.org)
>An
international discussion of the implications of the Yahoo! Inc. nazi
memorabilia dispute new!
The
Judge's Decision (May
22, 2000):
(Translated
into English by Richard Salis)
Whereas
it was not contested that surfers in French territory who logged onto
Yahoo.com directly, or via the link Yahoo.fr, can see on their computer screens the
pages, services and sites to which Yahoo.com provides access to, in particular
the Auction services hosted on
Geocities.com, the web hosting service of Yahoo! Inc., particularly in its
declension relative to nazi objects;
Whereas
the exposition considering its sale of nazi objects, constitutes a violation
of French law (article R. 645-2
of the penal code) but moreover an offense to the collective memory of a
nation profoundly murdered by atrocities committed by, and in the name of the
Nazi criminal enterprise against its citizens, especially against its citizens
belonging to the Jewish faith;
Whereas
while permitting the visualization in France of these objects and the eventual
participation of surfers of France to such an exposition/sale, Yahoo! Inc. has
therefore committed a fault on
French territory, a fault which
its non-intentional character is apparent, but which is the source of damage
to the LICRA as well as the UEJF which both
have a right to pursue
in France all forms of Nazism banalization, regardless that the
character of the litigious activity is marginal
with relation with the entire
auction sale services offered on its site Yahoo.com;
Whereas
the damage was suffered in France, our jurisdiction is therefore competent
over the present dispute in application of article 46 of the New Code of Civil
Procedure;
Whereas
Yahoo! Inc. asserts that it is technically impossible to control access to its
auction service or any of its other services, and in consequence, to prohibit
a surfer logging on in France from
visualizing these services on his screen;
Whereas
it wishes nevertheless to emphasize that it warns all visitors against all use
of its services for the purposes that are “worthy of reprobation for
whatsoever reason”, notably for the purposes of racial or ethnic
discrimination (Cf. Its users charter);
But
whereas Yahoo! Inc. is capable of identifying the geographical origin of the
site which is visited, as from the IP address of
the caller, which therefore
should provide them with the means to prohibit surfers calling from France,
by whatever means are appropriate, from accessing the services and
sites to be viewed on screens in France, and
in some cases tele-discharging and reproduction of the contents,
or of any other initiative justified by
the nature of the site
visited, will be susceptible of receiving in France, a criminal qualification
and/or constitute a manifestly illegal nuisance within the meaning of article
808 and 809 of the New Code of
Civil Procedure, which is manifestly the case of the exhibition of uniforms,
insignia, emblems reminiscent of those which worn or
exhibited by the Nazis;
Whereas
with regard to surfers who browse through sites which guarantee them
anonymity, Yahoo! Inc. has fewer possibilities of control except, for example,
those which refuse to systematically provide access to such sites to all
visitors who do not reveal their
geographical origin;
Whereas
the real difficulties encountered by Yahoo does not constitute insurmountable
obstacles;
That
it will therefore be ordered to take all the measures of their disposition, to
dissuade and to render it impossible any consultation by surfers calling from
France, the illegal sites and services where
the title and/or the content causes harm to internal public order, especially
the site which sells Nazi objects;
Whereas
there must be helpful to debate about the
nature of these measures within the framework of the present proceedings; That
Yahoo will be given a delay of
two months to formulate proposals of technical measures, able to carry forth a
settlement in this dispute;
Whereas
in regards to Yahoo France, it bears mentioning that its site Yahoo.fr does
not personally offer surfers calling from France, access to its sites and
service, such as the site and/or the content which constituted an infraction
to French law; that therefore it does not permit access to
auction sites or services which sell Nazi objects;
But
whereas it offers to surfers a link to Yahoo.com entitled “further research
on Yahoo.com”, without any particular precaution.
Or
whereas, knowing the content of services offered by Yahoo.com, and in this
case the service of auction sales
including in one of its declensions, the sale of Nazi objects, it is required
to warn its surfers, by a banner, prior to their entry onto Yahoo.com; that
should as the result of their research on
Yahoo.com, either by arborescence or through the use of key words, leads them
towards sites, pages or forums of
the title and/or content which constitutes an infraction of French law, such
as is the case of sites which directly or indirectly, voluntarily or
involuntarily , make the apology of Nazism, it must interrupt the visitation
onto the site in question,
otherwise it will incur the sanctions stipulated
by the French legislation or answer
to the legal actions which can be
initiated against it;
Whereas
these measures appear to sufficiently be in state; That whereas on the other
hand, it is justified to apply
the provisions of article 700 of the New Code of Civil Procedure in favor of
the plaintiffs;
BY
THESE MOTIFS
Rendering
its judgment publicly in first instance, after hearing all the parties, the
Court joins the proceedings bearing the numbers 00/0308 and 00/05309;
Rejecting
the arguments raised in defence;
Order
Yahoo! Inc. to take all measures at their availability, to dissuade and render
impossible all visitation on Yahoo.com to participate in the
auction service of nazi objects, as well as to render impossible any
other site or service which makes apologies of
Nazism or that contests Nazi crimes;
Orders
Yahoo France to warn all surfers visiting Yahoo.fr, and prior to making
available the usage of the link which permits them to pursue their research on
Yahoo.com, where the result of their search, whether by arborescence or
through the use of key words, leads them towards sites, pages
or forums of the title and/or content which constitutes an infraction
of French law, as well for visitation of sites which make the apology of
Nazism and/or exhibit uniforms, insignia, emblems reminiscent of those which
were worn or exhibited by nazis, or offering the sale of objects and works
where the sale is strictly prohibited in France, it must interrupt the
visitation onto the site in
question, otherwise it will incur the sanctions stipulated
by the French legislation or answer
to the legal actions which can be
initiated against it;
Orders
the pursuit of this proceeding at the hearing of Monday July 24, 200 at 14:00
(Chambers of Deputy Chief Justice Gomez),
during to which Yahoo! Inc. shall submit to the measures that they shall take
to put an end to the damage and
the nuisance suffered by the plaintiffs and to prevent any new
incidences of nuisance.
Condemns
Yahoo! Inc. to pay to LICRA the amount of 10,000 Francs on the basis of
article 700 of the New \code of Civil Procedure;
Condemns
Yahoo! Inc. and Yahoo France to
pay to UEJF an amount of 10,000
Francs on the basis of article 700 of the New Code of Civil Procedure;
Declares
that no further measures are appropriate at this juncture;
Awards
the costs of LICRA's action to be borne by Yahoo! Inc. and those of the UEJF
by Yahoo! Inc. and Yahoo France.
Done
at Paris on May 22, 2000
The
Clerk The Chief Justice
Christine
BENSOAM Jean-Jacques GOMEZ
