By Bastiaan Vanacker
On January 3, 2001, Yahoo! decided to ban the sale of Nazi memorabilia on its auction site, six weeks after a court in Paris ordered the US-based company to bar French surfers from its auctions. Free speech activists and Internet scholars have argued that this case sets a dangerous precedent, because it allows a country to reach across its boundaries and impose its norms on another nation.
Paris Judge Jean-Jacques Gomez's ruling on November 20 stated that Yahoo! must put a filtering system in place that would prevent French users to gain access to Nazi-related goods on its auction site. The decision confirmed an earlier ruling dating from May 3, 2000, in which the judge ruled that Yahoo! violated the strict French anti-racism laws by allowing "the viewing of sites making an apology for Nazism and/or exhibiting journalism, insignia or emblems resembling those worn or displayed by the Nazi's, or offering for sale objects or works whose sale is strictly prohibited in France...." Judge Gomez dismissed First Amendment concerns, arguing that the sale of human organs, cigarettes, pedophilia related objects, living animals and drugs is forbidden as well, and that these actions do not receive First Amendment protection.
The November 20 judgment focused primarily on the technical feasibility of denying French citizens access to the auction site. A panel of three experts stated that it would be technically possible to block 70 to 90% of the French surfers from the specified websites. Earlier, Judge Gomez had also noted that it could not be that difficult for Yahoo! to identify French users, because it already provided them with French language banner ads. The judge gave the California based company three months to do so, warning that it would be fined 100,000 Francs per day for each day exceeding the deadline.
While the French anti-racism groups who brought the claim were enjoying their victory, some saw the judgment as yet another step in the direction of a government-controlled World Wide Web. Alan Davidson, Staff Counsel with the Center for Democracy & Technology in Washington D.C., said that this approach "would lead to a lowest common denominator world where the most restrictive rules of any country would govern all speech on the Internet."
This statement may have seemed exaggerated at the time, since the French court ruling had direct implications only for French users, but on January 3, 2001 Yahoo! decided to change its policy and ban all hate materials from its website. The new policy forbids the sale of: "Any item that is directly associated with or promotes or glorifies groups, such as Nazis or the Ku Klux Klan, that are known principally for hateful and violent positions directed at others based on race or similar factors. Official government-issue stamps and coins are not prohibited under this policy. Expressive media, such as books and films, may be subject to more permissive standards as determined by Yahoo! in its sole discretion." Yahoo! has stressed that the decision to change its policy was unrelated to the French ruling. It remains unclear whether the new policy fully complies with the court order, but it is expected that it will render the ruling moot.
In the meantime, Yahoo! is seeking a declaratory judgement in a Federal District Court in San Jose, California, claiming that the French decision is not enforceable in the United States and maintaining that it is technologically impossible to block access to the French netizens. It is not clear if Yahoo! would change its policy again if the California court were to rule in its favor.