The case began with a civil lawsuit filed in France against
Yahoo! in 2000 by two civil liberties groups, La Ligue Contre le
Racisme et l'Antisemitisme and L'Union des Etudiants Juifs de
France. A Paris court ordered Yahoo! to block internet users in
France from accessing its auction sites selling Nazi
memorabilia.
The court reasoned that French law prohibits the display or sale
of anything that incites racism. It was the first time a French
court had issued such an order on a foreign company.
The court also imposed fines of around $13,300 per day upon the
company for non-compliance.
Yahoo! did not appeal the French court's decision in France;
instead, it sought a declaration from a federal court in
California. It claimed that the order to ban French users from
accessing certain auction sites affected the operations of its US
servers, and was therefore unenforceable under the First Amendment
provisions on free speech.
Yahoo.fr was not the issue; the company already tried to ensure
that its French site complied with French law. But the French
court's concern was that yahoo.com could still be accessed by
French users. Yahoo! did not continue the fight because it wanted
to sell Nazi memorabilia from yahoo.com. Instead, Yahoo! wanted to
fight the point of principle: that a French court should not
control the content of its US site.
In 2001 the federal court accepted Yahoo!'s arguments and ruled
that the French court could not regulate the company's speech on
the internet. The two French groups then appealed the decision to
the 9th US Circuit Court of Appeals, arguing that the First
Amendment cannot prevent the order from being enforced. They also
argued that Yahoo! had made no attempt to comply with the order
before suing in the US.
In August 2004, a divided Court of Appeals reversed the lower
court decision, ruling that the District Court did not have
jurisdiction to hear the case.
"Yahoo! cannot expect both to benefit from the fact that its
content may be viewed around the world and to be shielded from the
resulting costs", wrote Judge Warren J Ferguson, delivering the
majority opinion.
"Yahoo!," Judge Ferguson continued, "must wait for LICRA and
UEJF to come to the United States to enforce the French judgment
before it is able to raise its First Amendment claim. However, it
was not wrongful for the French organisations to place Yahoo! in
this position."
In effect the Court did not really consider the First Amendment
arguments put forward by Yahoo!, except to say that these could be
raised if the French government ever tried to enforce the French
ruling in the US.
In a dissenting ruling, Judge Melvin Brunetti said that the
Court did have jurisdiction because the two French civil liberties
groups had targeted Yahoo!'s US web site, and subjected the company
to "significant and daily accruing fines".
A brief ruling issued last Thursday instructs both sides to
argue their cases again in front of an 11-judge panel, expected
this spring. No reasons were given.
Yahoo! executives are quoted by Associated Press saying that the
decision presents a new opportunity for a courtroom victory that
could benefit all ISPs and anyone who publishes content on-line.
But a lawyer for the French organisations said there is no reason
to believe that the new panel will vindicate Yahoo!
