IP: CDT Briefing on French Yahoo Ruling

[Dave Farber <farber () cis upenn edu>]

Dave,

Thought IP'ers might be interested in this.



CDT POLICY POST Volume 6, Number 20 November 21, 2000

A BRIEFING ON PUBLIC POLICY ISSUES AFFECTING CIVIL LIBERTIES ONLINE
from
THE CENTER FOR DEMOCRACY AND TECHNOLOGY

CONTENTS:
(1) FRENCH COURT HOLDS YAHOO ACCOUNTABLE FOR U.S. AUCTION CONTENT
(2) FORCING INTERNET SPEAKERS TO COMPLY WITH 200 NATIONAL LAWS?
(3) GOVERNMENTS CAN EXERCISE JURISDICTION, BUT OVER THEIR NATIONALS


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(1) FRENCH COURT HOLDS YAHOO ACCOUNTABLE FOR U.S. AUCTION CONTENT

In a setback for free expression on the Internet, a French court has
ruled that U.S.-based Yahoo, Inc. is to be held liable under French law
for allowing French citizens to access auction sites for World War II
Nazi memorabilia. The court ruling on Monday subjects Yahoo to fines in
excess of 100,000 francs (US$12,853) per day unless it installs a
keyword-based blocking system that prevents French citizens from
seeing the offending Yahoo sites.

A review of news reports about the ruling is available at:
http://thestandard.com/article/display/0,1151,20331,00.html

The ruling appears to impose blocking requirements that many view as
impractical to implement on a wide scale and highly imperfect at
identifying Internet users by country. It also sets a dangerous precedent
for countries seeking to impose restrictions on speech outside their
borders.


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(2) FORCING INTERNET SPEAKERS TO COMPLY WITH 200 NATIONAL LAWS?

This French court ruling has potentially disastrous implications for
free expression around the world. Today, millions of individuals, small
businesses, and non-profit groups are now Internet publishers. Holding
them liable for the constantly changing and potentially restrictive laws
of every country and municipality in the world will have a chilling
affect on speech and commerce online.

The French law in question prohibits the exhibition or sale of objects
that incite racial hatred. Some of the World War II and Nazi materials
in question likely constitute protected speech under the U.S. First
Amendment. The French court ruling, should it stand, could open the
door for other countries to hold companies and web site owners outside
of their borders liable under restrictive rules about illegal content.

The impact could be particularly dangerous for political speech by human
rights, pro-democracy, social, and religious organizations publishing
constitutionally-protected materials in the U.S. that might be illegal
in foreign countries.


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(3) GOVERNMENTS CAN EXERCISE JURISDICTION, BUT OVER THEIR NATIONALS

The Internet raises important new challenges to the concepts of
jurisdiction. But surely the solution is not to allow a government
to exercise control over a content provider anywhere in the world.

Governments are not without recourse. The French government of course
retains its ability to prosecute those within its borders who view or
buy materials that violate French laws. Individuals or companies within
France are in a far better position to understand local legal standards.
Yahoo's French affiliate (Yahoo.fr) complies with French law. While CDT
remains concerned about overly restrictive regulation of expression
online, a country's exercise of its jurisdiction within its own borders
appears to be a more reasonable starting point for dealing with varying
national cultural norms about Internet content.


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Detailed information about online civil liberties issues may be found at
http://www.cdt.org/.

This document may be redistributed freely in full or linked to
http://www.cdt.org/publications/pp_6.20.shtml.

Excerpts may be re-posted with prior permission of ari () cdt org

Policy Post 6.20 Copyright 2000 Center for Democracy and Technology



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