SCN: Yahoo

[Steve]

x-no-archive: yes

==========================

(Carl S. Kaplan, NY Times)---A ruling by a Paris judge ordering 
Yahoo Inc. to block French citizens from auctions of Nazi artifacts on 
the company's English-language Web site has sparked a 
passionate debate among legal experts.  

Some lawyers say the decision earlier this week, rooted in a French 
anti-Nazi statute, is an alarming example of a foreign court's 
willingness to impose its national law on the activities of a United 
States-based Web site.  

Even worse, they say, is the ruling's implication. Under the Paris 
court's logic, any Web site with global reach could be subject to the 
jurisdiction of every nation on earth.  Forced to comply with a 
patchwork of local laws, global e-commerce could grind to a halt.  

Rubbish -- the sky is not falling, other lawyers say with equal fervor. 
 The Paris court's decision was perfectly reasonable under the 
circumstances, they claim.  Indeed it is a welcome harbinger of 
things to come.  

One thing both camps seem to agree on is that the decision, handed 
down by Judge Jean-Jacques Gomez of the Superior Court of Paris, 
was a shot heard 'round the world.  The Financial Times of London 
ran a story about the Yahoo case prominently on its front page the 
day after the ruling, as well as an op-ed column and an editorial, 
which criticized the court.  

In his decision on November 20, Judge Gomez gave Yahoo Inc., 
based in Santa Clara, Calif., three months to find a technological 
means to prevent Web surfers in France from gaining access to 
some web pages on its auction site that feature over 1,200 Nazi-
related items -- everything from Nazi flags to belt buckles. After the 
deadline, Yahoo would be fined $13,000 for each day it did not 
comply with the order, the Judge said.  Yahoo's France-based 
subsidiary, Yahoo France, does not host auctions for Nazi 
memorabilia.  

A representative of Yahoo Inc. declined to comment on the ruling.  

Michael Traynor, a lawyer in San Francisco who is acting as special 
counsel to Yahoo on some aspects of the lawsuit, said the company 
is weighing its legal options.  He said the company could appeal to 
a higher court in France and challenge Judge Gomez's assertion of 
jurisdiction.  He also predicted that any effort by French authorities 
to enforce Judge Gomez's judgment in a United States court against 
Yahoo's United States assets would fail because of the First 
Amendment, which protects hate speech.  

An open question, other lawyers said, is whether French authorities 
could seize assets of Yahoo France to pay for possible fines levied 
against Yahoo Inc.  

The Yahoo case first rose to public attention on May 22, when Judge 
Gomez ordered Yahoo Inc. to "render impossible" the ability of Web 
surfers in France to gain access to Nazi-related auctions hosted on 
the company's auction pages.  In reaching his decision Judge 
Gomez held that the display of Nazi souvenirs on computer screens 
in France is a violation of a section of the French criminal code that 
bans the exhibition or sale of racist material. He also concluded that 
France was competent to assert jurisdiction over Yahoo because the 
harm -- the display of Nazi-era artifacts -- occurred on French 
territory.  

The suit was filed by two groups in France, the International League 
Against Racism and Anti-Semitism (LICRA) and the Union of French 
Jewish Students.  

Following the May 22 order, Yahoo said at a court hearing that it 
was technically impossible for it to block French Internet users.  In 
August, the court appointed a panel of three experts -- one French, 
one American and one European -- to independently review the 
viability of filtering technologies that Yahoo might use.  Earlier this 
month, the panel reported that a filtering system based on the 
geographical origin of online users could block up to 90 percent of 
French citizens seeking to participate in Nazi-related auctions 
hosted by Yahoo.  

One legal expert who hailed the court's final order this week is Jack 
Goldsmith, a law professor at the University of Chicago and an 
expert in Internet jurisdiction.  Goldsmith said it was "too simplistic" 
for some lawyers to complain that the ruling threatens global e-
commerce.  

"IBM, McDonald's and other international companies sell stuff into 
every country in the world and they have to comply with local laws," 
he said. The fact that real-space companies have to obey a 
patchwork of laws "hasn't brought real-space commerce to a halt," 
Goldsmith quipped.  

Goldsmith also noted that the Untied States routinely imposes its 
national laws on foreign enterprises, particularly offshore Internet 
companies.  Yet American legal experts and Internet executives 
haven't complained about overreaching in those cases.  

Last year, for example, a local trial judge in Manhattan made 
headlines when he ruled that operators of an Internet gambling 
casino based in Antigua, where gambling is legal, violated New York 
State and federal anti-gambling laws because the Web site's content 
was available to New Yorkers.  

The key fact justifying the Paris court's decision, said Goldsmith, is 
that "a U.S. corporation is doing something that is causing harm" on 
French soil. A French court has the authority to take steps to try to 
stop it, he said.  

The court's order is a very good compromise, Goldsmith asserted.  
The court did not require that Yahoo purge all its Nazi-related 
auctions, thus censoring what Americans could see.  Instead, the 
court in a sense urged Yahoo to use geographical filters, knowing 
full well that the technology would still allow 10 percent of the 
auctions to slip onto French-based computer screens.  

"This decision is significant because it shows that geographical 
filters, though not perfect, are feasible and that nations can take 
reasonable steps to keep content out," said Goldsmith.  "I have no 
doubt that the Internet will become more geographically filtered. This 
ruling will enhance the trend."  

On the opposite side of the debate is Traynor, the Yahoo special 
counsel. He said that Judge Gomez's order is a significant negative 
development in the governance of the Internet.  

"One country is purporting to exercise and impose its standards on 
a worldwide conversation," Traynor said.  "It's fundamentally an 
interference with freedom of speech and expression."  

Traynor asserted that filters, even geographical filters, are 
expensive, ineffective and may block excessively.  "There's just a 
huge question over the efficacy of filters," he said.  

One American lawyer who admitted that the Yahoo ruling gives him 
a headache is David J. Loundy, who practices Internet law with 
D'Ancona & Pflaum, a Chicago law firm.  

Loundy said that he would not have ruled much differently from 
Judge Gomez. "Filters are a pretty good compromise solution," he 
said. "They work, mostly."  

But one thing he wants to know: where is it going to end?  

This week Yahoo was ordered to block out a class of people in 
France, Loundy said.  "The next thing you know a court in the Middle 
East will order another U.S. Internet company to block Middle 
Eastern consumers from seeing soft-core pornography, which is 
legal here but illegal there. You can pick your country and pick your 
problem. Will every Internet company in the future have to put on 42 
geographical filters to make everybody happy? Or 420 filters?"  

There are other questions, Loundy said with a sigh:  Does an 
Internet company have an affirmative duty to figure out the laws of 
every nation in the world and put on the appropriate geographical 
filters, or do they just have to put on filters following a court order?  
And as the technology gets better, does a company have a duty to 
slap on the newest filtering gizmo?  

Taken in isolation, Judge Gomez's ruling is not objectionable, 
Loundy said. "But all the implications are starting to make me 
wonder."  

Copyright 2000 The New York Times Company  




* * * * * * * * * * * * * *  From the Listowner  * * * * * * * * * * * *
.	To unsubscribe from this list, send a message to:
majordomo at scn.org		In the body of the message, type:
unsubscribe scn
==== Messages posted on this list are also available on the web at: ====
* * * * * * *     http://www.scn.org/volunteers/scn-l/     * * * * * * *