SCN: Jurisdiction

[Steve]

x-no-archive: yes

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(Carl S. Kaplan, NY Times)---In Europe, where memories of World 
War II are still fresh in the minds of those who lived through it, the 
sale of Nazi and Fascist memorabilia often sparks indignation.  

Today, that passion is being played out in a courtroom in Paris, 
where French authorities are seeking to force an American company, 
Yahoo Inc., to restrict French citizens from gaining access to Nazi 
artifacts that appear on its English-language auction site, which is 
available to online surfers around the world.  

Whatever the outcome of the hearing today, the case points up an 
enduring legal and cultural puzzle about speech and commerce in 
borderless cyberspace: What happens when the laws and traditions 
of a country that receives an online message clash with the laws 
and values of the land where the message originated?  

In this case, which began in May, the question is posed in even 
starker terms. Should Yahoo Inc. bow to a French law condemning 
the trivialization of the Nazi era, or should France yield to Yahoo's 
rights of freedom of expression as embodied in the United States 
Constitution?  

"The Yahoo case points up a dilemma in the law of jurisdiction," 
said Henry H. Perritt Jr., dean of the Chicago-Kent College of Law 
and an expert in Internet law.  

"If a Web site is accessible to all, and is subject to jurisdiction by 
every nation on earth, then the laws of the lowest common 
denominator nation" will govern the Internet, he said. "On the other 
hand, if we say that the only important law is the one where the 
content provider resides, then local values of foreign nations will not 
be enforced. We also run the risk of creating havens for shyster 
practices."  

The Yahoo case first rose to public attention on May 22, when Judge 
Jean-Jacques Gomez of the Superior Court of Paris ordered Yahoo 
Inc., based in Santa Clara, Calif., to "dissuade and render 
impossible" the ability of Web surfers in France to gain access to 
sales of Nazi-related objects that appear on an auction service 
hosted by Yahoo.com.  

Judge Gomez ruled that the display in France of Nazi souvenirs, for 
the purpose of sale, is a violation of French law (article R.645-2 of 
the Criminal Code). He also said the online exposition of Nazi 
artifacts in France is "an offense against the collective memory of a 
country profoundly wounded by the atrocities committed by and in 
the name of the Nazi criminal enterprise."  

Judge Gomez further declared that because Yahoo Inc. permitted the 
visualization in France of the Nazi objects, a harm had been 
suffered in France. Accordingly, the Paris trial court was "competent" 
to assert jurisdiction over Yahoo Inc., said Judge Gomez. The 
court's ruling marked the first time that a French Judge had issued a 
prior restraint against a foreign Internet company.  

The suit was originally filed by two groups in France, the 
International League Against Racism and Anti-Semitism (LICRA) and 
the Union of French Jewish Students. Objecting to what they charged 
was a "banalizing of Nazism," according to court documents, both 
organizations sought to stop the English-language auction sales 
from appearing in France.  

On Yahoo.com's auction site, more than 1,200 Nazi-related items -- 
everything from Nazi flags and uniforms to belt buckles and medals -
- are offered to cyberspace consumers under the shield of U.S. 
notions of free expression. Yahoo's France-based subsidiary, 
Yahoo France, does not host auctions for Nazi memorabilia.  

At a hearing on July 24, representatives for Yahoo told the court that 
while the company was opposed to racism and respected French 
law, it was technically impossible for it to block French surfers from 
its Yahoo.com auction site.  

Lawyers for the other side disagreed, but also argued that if Yahoo 
couldn't filter out French surfers it should remove the Nazi items 
from its U.S.-based site. More arguments on the issue of the 
feasibility of filtering are scheduled for tomorrow. Yahoo, which has 
financial assets in France, faces the possibility of steep fines if it 
doesn't comply with the court's May order.  

Legal scholars in the United States differ over how the Yahoo case 
should be resolved.  

Yahoo defenders argue that while France can impose its own law on 
its citizens, it's not entitled to impose its views on the rest of the 
world. "What the government of France is trying to do is apply its 
laws outside its borders," said Michael Traynor, a lawyer in San 
Francisco who is acting as special counsel to Yahoo in the case. "If 
anybody in France feels that they don't want to view Nazi artifacts, 
they don't have to look at anything they object to. It's a voluntary act 
to look at information."  

Traynor added that he believed that the French law in question might 
violate certain free expression standards embodied in European 
human rights laws, to which France is subject. He said Yahoo might 
eventually appeal an adverse result from Judge Gomez, either to an 
appellate court in France or to the European Court of Human Rights.  

Dean Perritt of the Chicago-Kent Law School said he is hopeful that 
an appellate court in France will find that Yahoo Inc. is not subject to 
jurisdiction in that country because Yahoo.com has not "targeted" 
its auctions to French citizens.  

"It seems to me that Yahoo de-targeted France in the sense that the 
Yahoo France Web site, which is in French, does not have the items 
in controversy," he said. "For French authorities to go after 
Yahoo.com nevertheless is an exorbitant exercise of jurisdiction 
that is inconsistent with emerging best practices."  

But Jack Goldsmith, a law professor at the University of Chicago and 
an expert in Internet jurisdiction, takes a different view. He said that 
it is appropriate for a French court to assert jurisdiction over Yahoo 
because "Yahoo has something on its Web site that is being 
accessed by French citizens that violates French law."  

It is true, Goldsmith said, that France in a sense is trying to impose 
its law on a United States. company. But the alternative is for a 
United States company to impose its home-town laws regarding 
permissible expression on France. "The harmful effects are running 
in both directions," he said.  

For Goldsmith, the answer to the dilemma is for Yahoo to adopt 
some kind of filtering technology that reasonably screens out French 
citizens. Judge Gomez shouldn't insist that Yahoo make it 
"impossible" for French surfers to gain access to its U.S.-based 
Nazi auctions, just more difficult, he said.  

"If the technology is 95 percent effective, it will have a significant 
effect on the ability of French citizens to get the content," Goldsmith 
said. "That's all France needs to do." Goldsmith added that many 
Internet-related jurisdictional conflicts could be solved by the use of 
fast-improving technology that screens out surfers on the basis of 
country of origin.  

Thomas P. Vartanian, a Washington, D.C.-based lawyer who heads a 
committee on cyberspace law for the American Bar Association, said 
that he expects to see more cases like Yahoo in the coming years 
"unless the world can agree on what the standards for jurisdiction 
should be."  

Vartanian and an international group of lawyers recently completed 
a two-year study that, among other things, called for the creation of 
an international body to develop uniform global principles of Internet 
jurisdiction. The risk of inaction, Vartanian warned in an interview, 
could result in a smothering of the emerging e-commerce golden 
goose.  

Copyright 2000 The New York Times Company  





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