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One of the seminal cases in jurisdiction over the internet, tackling the question of what happens when a website is illegal in Country A but not in its home country. Well, okay, it didn't actually tackle the question, but at least it tried.

LICRA is "La ligue contre le racisme et l'antisemitisme," a parastatal group in France dedicated to the eradication of racism and anti-Semitism. Yahoo!, as all of you know, is an enormous US-based portal site designed to direct people to information. Yahoo! happened to be directing French people, through its site at fr.yahoo.com, to anti-Semitic information, such as Holocaust denial sites and online auctions of Nazi memorabilia, in violation of French law. So LICRA took Yahoo! to court in France in an attempt to stop this practice.

Some notes on international litigation

One of the key concepts in the law of civil procedure is jurisdiction—when a court has the power to adjudicate a dispute. Every country tackles this question differently. In the US, for instance, a plaintiff must establish the court's personal jurisdiction over the defendant: this can be either general jurisdiction, where the defendant lives near the court or has significant contacts with the area, or specific jurisdiction, a more complicated inquiry based on the effects of the defendant's actions, their connection to the plaintiff's claim and the reasonableness of asserting jurisdiction. France, on the other hand, does not have such a concept of personal jurisdiction: a French plaintiff can sue anyone in a French court, no matter who that defendant is or where they live.

The major flaw in jurisdiction, at least when it comes to international disputes, is in enforcement. Say a French plaintiff sues a US defendant in a French court. If the US defendant loses, he can only be directly forced to hand over any assets he owns in France. If these aren't enough to satisfy the verdict, the plaintiff has to go to court in the US to try to collect, and the US court has the power to decide whether the judgment can be enforced in the US.

Enforcement of foreign judgments in the US is generally based on the idea of comity—that the US has a general obligation to respect the judgments of other countries, but that such judgments can be ignored if they go against the legal principles of the US. Among the "outs" that can be claimed in the US are inadequate jurisdiction, inadequate proceedings, prejudice, fraud, or "any other special reason" other than mere error in law or fact. (That's a highly simplifed summary of the Supreme Court case that introduced the principle to the US, Hilton v. Guyot (1895)).

The case in France

LICRA brought suit against Yahoo! in the Tribunal de Grande Instance de Paris on April 10, 2000. On May 22, after a first hearing, the tribunal issued its first order, requiring that Yahoo! "take all necessary measures to dissuade and render impossible any access" by French users to the auctions and websites in question, and that Yahoo! France (a French company owned by Yahoo!) do the same for its site.

Yahoo! objected to the order, stating (correctly) that there was no technical way to comply in full since there is no perfect way to determine in real time where in the world an internet user is coming from. The court then brought in expert witnesses, who testified that through a combination of IP filtering and requiring users to declare their nationality, Yahoo! would probably have a 90% success rate in stopping access by French users.

On November 22, the court issued a second order, in which it stated that Yahoo! France was generally in compliance with the law, but that Yahoo! needed to clean up its act within three months, or else face a rather stiff fine of 100,000 francs per day. Between the two orders, Yahoo! was supposed to pay LICRA 50,000 francs. Rather than pay these fines or make an appeal in France, Yahoo! brought the case back home.

The case in the US

On December 21, Yahoo!'s lawyers paid a visit to the United States District Court for the Northern District of California and filed suit against LICRA for a declaratory judgment that the French court's orders could not be enforced in California. LICRA, rather poetically, filed a motion to dismiss. Its argument was that the California court had no jurisdiction over LICRA. After some heated argument, the court ruled on June 21, 2001 that it had specific jurisdiction over LICRA based on LICRA's claim against Yahoo! and the inavailability of a better forum for the question at hand.

With that question out of the way, Yahoo! moved for summary judgment—a determination by the court that LICRA's position was indefensible under US law as a violation of the First Amendment. In its decision on November 7, the district court enjoined enforcement of the French court's orders.

A basic function of a sovereign state is to determine by law what forms of speech and conduct are acceptable within its borders. In this instance, as 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. (In particular, there is no doubt that France may and will continue to ban the purchase and possession within its borders of Nazi and Third Reich related matter and to seek criminal sanctions against those who violate the law.)

What is at issue here is whether it is consistent with the Constitution and laws of the United States for another nation to regulate speech by a United States resident within the United States on the basis that such speech can be accessed by Internet users in that nation. In a world in which ideas and information transcend borders and the Internet in particular renders the physical distance between speaker and audience virtually meaningless, the implications of this question go far beyond the facts of this case. The modern world is home to widely varied cultures with radically divergent value systems. There is little doubt 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. If the government or another party in one of these sovereign nations were to seek enforcement of such laws against Yahoo! or another US-based Internet service provider, what principles should guide the court's analysis?

The court concluded:

Yahoo! has shown that the French order is valid under the laws of France, that it may be enforced with retroactive penalties, and that the ongoing possibility of its enforcement in the United States chills Yahoo!'s First Amendment rights. Yahoo! also has shown that an actual controversy exists and that the threat to its constitutional rights is real and immediate.

The mumbo-jumbo appeal

The district court's opinion didn't stand for long. LICRA appealed its case to the Ninth Circuit, maintaining that the US court's exercise of personal jurisdiction. On August 23, 2004, a 3-judge panel ruled, 2-1, that the District Court erred—it had no grounds to exercise jurisdiction over LICRA until LICRA actually tried to enforce the French court's judgment in the US.

However, the court approved the case for a rehearing en banc by a panel of eleven judges. On January 12, 2006, eight of the eleven agreed that the district court had personal jurisdiction over LICRA. However, three of the eight agreed with the three dissenters that the case should be dismissed, creating a 6-5 majority in favor of dismissal, although the majority was divided as to the reason for dismissal. The three judges who argued for dismissal despite the existence of personal jurisdiction cited the doctrine of ripeness, roughly following the reasoning of the previous judgment:

With the suit in its current state, it is difficult to know whether enforcement of the French court's interim orders would be repugnant to California public policy. The first difficulty is evident. As indicated by the label “interim,” the French court contemplated that it might enter later orders. We cannot know whether it might modify these “interim” orders before any attempt is made to enforce them in the United States.

A second, more important, difficulty is that we do not know whether the French court would hold that Yahoo! is now violating its two interim orders. After the French court entered the orders, Yahoo! voluntarily changed its policy to comply with them, at least to some extent. There is some reason to believe that the French court will not insist on full and literal compliance with its interim orders, and that Yahoo!'s changed policy may amount to sufficient compliance.

... If the French court were to hold that Yahoo!'s voluntary change of policy has already brought it into compliance with its interim orders “in large measure,” no First Amendment question would be presented at all. Further, if the French court were to require additional compliance with respect to users in France, but that additional compliance would not require any restriction on access by users in the United States, Yahoo! would only be asserting a right to extraterritorial application of the First Amendment. Finally, if the French court were to require additional compliance with respect to users in France, and that additional compliance would have the necessary consequence of restricting access by users in the United States, Yahoo! would have both a domestic and an extraterritorial First Amendment argument. The legal analysis of these different questions is different, and the answers are likely to be different as well.

LICRA filed a writ of certiorari to the Supreme Court, seeking to have the personal jurisdiction question revisited, but certiorari was denied in May 2006, effectively ending the case unless LICRA decides to enforce the judgment against Yahoo! in the future.

What the case means

Given that the last panel of judges to deal with the case couldn't make heads or tails of it, it's hard to say what the Yahoo! case actually means.

Certainly, one conclusion we can draw from it is that the borderless nature of the internet and its ability to bring national laws into direct and irreconciliable conflict with each other makes many legal concepts much less predictable. Libel, fraud, copyright infringement and a variety of other offenses can take place across countries in a millisecond. Whose judgment should it come down to? Until the UN takes over the world, we might never quite be sure.

Sources

  • Yahoo! Inc. v. La Ligue Contre Le Racisme Et L'Antisemitisme, 169 F.Supp.2d 1181 (N.D. Cal. 2001)
  • Yahoo! Inc. v. La Ligue Contre Le Racisme Et L'Antisemitisme, 379 F.3d 1120 (9th Cir. 2004)
  • Yahoo! Inc. v. La Ligue Contre Le Racisme Et L'Antisemitisme, 399 F.3d 1010 (9th Cir. Feb 10, 2005)

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