By Bastiaan Vanacker
A French court's order seeking to force Yahoo! to either prevent its French users from viewing Nazi memorabilia or pay a fine of $13,000 a day is not enforceable in theUnited States, a federal judge in San Jose, CA ruled on November 7, 2001 (Yahoo! Inc. v. La Ligue Contre Le Racisme et L'Antisemetisme, 169 F. Supp. 2d 1181 (N.D. Cal. 2001). During 2000, the California-based company became entangled in a legal dispute with two French anti-racism groups over Nazi merchandise being auctioned by Yahoo! users. Despite the fact that the Yahoo! auction sites are hosted by servers located in the United States, a French judge ordered Yahoo! to block access to French users to the site or pay a hefty fine (
see Spring 2001 Bulletin). After the ruling, Yahoo! complied with most of the court's order. It posted warnings directed at French users, prohibited postings on Yahoo.fr that violate French law and revised its auction policy to prohibit individuals from auctioning any item that "promotes, glorifies, or is directly associated with groups or individuals known principally for hateful or violent positions or acts, such as Nazis or the Ku Klux Klan." Some items, such as stamps and coins or expressive media such as books (for example Hitler's Mein Kampf) which might fall under the French order, could still be freely auctioned. However, Yahoo! did not, as the order required, prevent access to other sites that may constitute an apology for Nazism, or to deny Nazi crimes. It argued that it could not comply with this aspect of the order without banning Nazi material from Yahoo.com altogether, thereby barring its American users from seeing it, which would infringe upon their First Amendment rights.
Yahoo! filed a complaint in federal District Court in San Jose, seeking a declaratory judgement that the French court's orders are not enforceable under United States law. Judge Jeremy Fogel granted the motion, stating that the French order could not be enforced in the United States consistent with the First Amendment. The judge emphasized that this ruling was not about the morality of promoting the symbols or propaganda of Nazism, nor about the right of France or any other nation to determine its law and social policies. "[A]s a nation whose citizens suffered the effects of Nazism in ways that are incomprehensible to most Americans, France clearly has the right to enact and enforce laws such as those relied upon by the French Court here," Fogel wrote. But he pointed out that "Internet users in the United States routinely engage in speech that violates, for example, China's laws against religious expression, the laws of various nations against advocacy of gender equality or homosexuality, or even the United Kingdom's restrictions on freedom of the press."
The League Against Racism and Anti-Semitism and the Union of Jewish Students filed an appeal with the Ninth Circuit Court of Appeals. Ronald S. Katz, the attorney for the French organizations, said that because the judge had acknowledged that this case is unprecedented, "it is important that we get this decision to a higher court as soon as possible. My clients are willing to go the United States Supreme Court, if necessary, because they feel strongly that Yahoo! does not have the right to facilitate sales of Nazi memorabilia, which are illegal in France for French citizens in France."
Civil liberties groups were pleased with the ruling. "While France or China or the Taliban have the power to regulate the speech of those within their borders, the court's decision makes it very clear that these countries do not have the power to reach out and silence speech in the United States," said Ann Brick, an attorney with the ACLU of Northern California. The ACLU, together with numerous other organizations, including the Society of Professional Journalists, had filed an amicus brief in the case. This case raises important issues about jurisdiction on the Internet, an issue that is gaining importance. In December 2001, the highest court in Germany ruled that German law applies even to foreigners who post content on the Web in other countries accessible from Germany. However, it is not clear how Germany plans to enforce its laws abroad. Katz argued that only an international treaty could provide a compromise. The Council of Europe, an intergovernmental organization counting more than forty European member states (not to be confused with the European Union) drafted a proposal that would criminalize acts of racist or xenophobic nature committed through computer networks. The draft was published on February 18, 2002 and is available online at
Internet companies reacted that it would be impossible to outlaw the publication of "hate speech" on the Internet and are concerned about liability issues. Civil liberties groups also expressed fears that this might bring more stringent anti-hate speech laws from continental Europe to the United Kingdom and the United States.