LICRA v. Yahoo!
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Ligue contre le racisme et l'antisemitisme et Union des etudiants juifs de France c. Yahoo! Inc. et Societe Yahoo! France (LICRA v. Yahoo!) is a French court case decided by the High Court (Tribunal de grande instance) of Paris in 2000. The case concerned the sale of memorabilia from the Nazi period by internet auction and the application of national laws to the internet. Some observers have claimed that the judgement creates a universal competence for French courts to decide internet cases.
A related case before the United States courts concerning the enforcement of the French judgement reached the 9th US Circuit Court of Appeals, where a majority of the judges ruled to dismiss Yahoo!'s appeal.
Criminal proceedings were also brought in the French courts against Yahoo!, Inc. and its then president Timothy Koogle: the defendants were acquitted on all charges, a verdict that was upheld on appeal.
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[edit] The civil case in France
LICRA complained that Yahoo! were allowing their online auction service to be used for the sale of memorabilia from the Nazi period, contrary to Article R645-1 of the French Criminal Code (Code penal). These facts were not contended during the case.
The defense rested on the fact that these auctions were conducted under the jurisdiction of the United States. It was claimed that there were no technical means to prevent French residents from participating in these auctions, at least without placing the company in financial difficulty and compromising the existence of the Internet.
The defendants noted
- that their servers were located on US territory,
- that their services were primarily aimed at US residents,
- that the First Amendment to the United States Constitution guarantees freedom of speech and expression, and that any attempt to enforce a judgement in the United States would fail for unconstitutionality.
As such, they contended that the French court was incompetent to hear the case.
[edit] Article R645-1
Article R645-1 of the French Criminal Code prohibits to "wear or exhibit" in public uniforms, insignias and emblems which "recall those used" by
- an organisation declared illegal in application of Art. 9 of the Nuremberg Statute, or by
- a person found guilty of crimes against humanity as defined by Arts. L211-1 to L212-3 or by the Law n°. 64-1326 of 1964-12-26.
Display is allowed for the purposes of films, theatrical productions and historical exhibitions.
The penalties available are:
- a fine of up to 1500 EUR;
- withdrawal of the right to hold firearms and confiscation of any firearms which are held;
- confiscation of the objects concerned;
- up to 120 hours of community service.
The jugement made in France is problematic and can be easely contested. As far as the LICRA v. Yahoo! case is concerned, the "public exhibition" of Nazi insignas is yet to be proven.
[edit] The judgment
An interim judgment of 2000-05-22 confirmed the illegal nature of the sale under French law and appointed experts to advise the court as to what technical measures might be taken to prevent a repeat of the offense. The team of experts reported on 2000-11-06, and the court rendered an injunction against the defendants on 2000-11-10.
[edit] Competence of the French court
The court ruled that there were sufficient links with France to give it full jurisdiction to hear the complaint. In particular:
- the auctions of Nazi memorabilia were open to bidders from any country, including France;
- the display of such objects, and the viewing of such objects in France, caused a public nuisance and was forbidden under French criminal law;
- Yahoo! Inc. was aware that French residents used its auction site, as it displayed French-language advertisements on its pages when they were accessed from computers in France.
This last point was also referred to in the injunction against Yahoo! Inc. The court specifically dismissed the claim that the alleged problems of enforcing a judgment were sufficient to nullify its competence.
[edit] Societe Yahoo! France
Societe Yahoo! France had been ordered on 2000-05-22 to warn its users that they may breach French law if they followed links from its site to sites operated by Yahoo! Inc. The court acknowledged that this order had been substantially complied with "in letter and in spirit". It refused a request from the plaintiffs to order Yahoo! France to remove links to the American sites, but reiterated that a warning must be given to users before they activated such links.
[edit] Yahoo! Inc.
Yahoo! Inc. had been ordered on 2000-05-22 to take all appropriate measures to deter and prevent access to auctions of Nazi memorabilia on its site by French residents. Yahoo! contended that it was impossible to comply with this order.
The report of the court-appointed experts noted that, as of 2000, roughly 70% of French internet users could be identified as such by the use of DNS databases.
...
The court ruled that Yahoo! Inc. must comply with the original injunction within three months or face a fine of one hundred thousand (100,000) francs (15,244.90 EUR) per day.
[edit] Proceedings in the United States
On 2001-01-10 Yahoo! announced that it would not appeal against the ruling in France. It decided to take the case before a United States District Court in San Jose, California, asking it to find that the French ordinance is not effective in the United States. Judge Jeremy Fogel found the decision returned by the tribunal de grande instance of Paris to be inconsistent with the First Amendment to the Constitution of the United States, relating to freedom of expression, and that consequently it is inapplicable in the United States.
The LICRA and the UEJF appealed the decision before the U.S. Court of Appeals for 9th Circuit (the State of California is in the 9th Cir.), who had the responsibility of determining whether France had jurisdiction. The Appeals Court accepted the case and, on August 23, 2004, reversed the earlier finding, arguing that the defendants had acted only with regard to transactions taking place in France as part of Yahoo!'s international business, and that this subjected Yahoo! to French jurisdiction:
- Exercise of jurisdiction is consistent with these requirements of "minimum contacts" and "fair play and substantial justice" where (1) the non-resident defendant has purposefully directed his activities or consummated some transaction with the forum or a resident thereof, or performed some act by which he purposefully availed himself of the privileges of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim arises out of or relates to the defendant’s forum-related activities; and (3) the exercise of jurisdiction is reasonable.
There was one dissenting opinion, written by Judge Melvin Brunetti, who argued that "a defendant’s intentional targeting of his actions at the plaintiff in the forum state", which he viewed the French charges and fines as constituting, sufficed to give jurisdiction to the forum state, the United States, under the Supreme Court's "express aiming" precedent.
The case created a media response and sparked a backlash of controversy in the United States, where many saw it as the censoring of a United States publication by a foreign power. Although technically the decision only required Yahoo! to prevent the sale of Nazi objects to people in France, in practice technical limitations make it infeasible to track the geographical location of a customer on the web. The practical consequence was that Yahoo! was forced to monitor and remove any and all such items from its website, at considerable expense to itself, and render appropriate payment of fines to France.
On 2006-01-12, the United States Court of Appeals for the Ninth Circuit delivered a judgment reversing the judgment of the District Court and remanded the case with directions to dismiss the action. Judge William Fletcher noted that:
- Yahoo! is necessarily arguing that it has a First Amendment right to violate French criminal law and to facilitate the violation of French criminal law by others. [...] the extent — indeed the very existence — of such an extraterritorial right under the First Amendment is uncertain.
