Decision on Yahoo! Nazi auctions postponed for technical investigation

Yahoo! has argued in the case that it cannot prevent French users accessing its US sites. The company has removed the offending site from its French portal, yahoo.fr, to comply with the French law against the sale or exhibition of anything that incites racism; but it refuses to remove the auction from yahoo.com because it is not in breach of US law. The case is being brought by two human rights groups based in Paris.

Judge Jean-Jacques Gomez is upholding the order he made in May requiring Yahoo! to block French internet users form such sites as that hosting the auction of Nazi memorabilia. However, he has declined to impose daily fines on Yahoo! for failing to comply, pending the result of an investigation into the technical barriers. A team of three experts will be appointed and given two months to find a means by which Yahoo! can comply. He rejected Yahoo!’s assertion that French courts could not impose French law on the English language portal based in California.

The next hearing of the case will be 6th November at which the experts will present their findings. A lawyer for Yahoo! said: “The decision to appoint international experts is a good decision… we will co-operate with the experts in order to find, to see, if any solution is possible.”

A number of companies have offered solutions that they claim will answer the geographical problems posed by the case by identifying the location of a user and blocking access if appropriate. However, most of these technologies appear to rely on an Internet Protocol address which can be changed in some cases. According to Yahoo!, such ideas have already been rejected.

In Europe, under the Electronic Commerce Directive (which came into force on 17th July), an ISP that hosts a web site with illegal content is not liable for the content if it is not aware of its existence (and there is no need to monitor all content hosted); but if and when it becomes aware of the existence of illegal material, the ISP must remove it or prevent access to it to avoid being held legally responsible.