SCN: Speech

[Steve]

x-no-archive: yes

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

(Carl S. Kaplan, NY Times)---Now that antidiscrimination groups in 
France have won a partial victory over Yahoo Inc. by pressuring the 
California-based company to drop auctions of Nazi artifacts from its 
English-language Web site, civil libertarians and other lawyers fear 
that other groups will be emboldened to file lawsuits in foreign 
courts seeking to censor online speech flowing from America.  

Yahoo's aboutface "will certainly encourage litigants and 
governments in other countries to go after American service 
providers" who transmit content that is protected in the United 
States but offensive and possibly illegal abroad, warned Barry 
Steinhardt, associate director of the American Civil Liberties Union. 
That's dangerous, he said, because "we could easily wind up with a 
lowest common denominator standard for protected speech on the 
Net."  

Even legal experts who support the right of French citizens to hold 
Yahoo accountable for the content of its United States-based Web 
site predicted more suits in the wake of the Yahoo response and the 
French groups' win.  

"The fact that Yahoo backed down will probably encourage more 
lawsuits," said Jack Goldsmith, a law professor at the University of 
Chicago and an expert in Internet jurisdiction. "But I think the 
lawsuits would have come in any event," he added, in light of what 
he said is the right of a foreign court to take steps within its territory 
to regulate harmful Net flows from abroad.  

David G. Post, a law professor at Temple University and an expert 
in Internet law, said it was difficult to predict the next "hot button" 
issues that might trigger lawsuits against United States online 
service companies, where free speech traditions are strong. He 
reckoned that certain groups in the Middle East might begin to patrol 
the Internet for anti-Islamic content, such as foreign sites that 
display women without veils. He also speculated that some foreign 
antismoking groups might object to sites from abroad that display 
tobacco advertising, in violation of local laws. "There are a lot of 
ways information law differs from country to country," he said with a 
sigh.  

Earlier this week, Yahoo Inc. announced that it would more actively 
enforce its terms of service agreement by pre-screening and 
eliminating hateful and racist material -- such as Nazi memorabilia 
and Ku Klux Klan artifacts -- from its auction sites. Previously the 
company did not actively monitor content posted on its auction site, 
but reserved the right to take down offensive material.  

The new Yahoo monitoring scheme, which features a combination of 
specialized software and human reviewers, does not apply to the 
company's noncommercial entities, such as the many chatrooms, 
personal Web sites and youth clubs that it hosts.  

The new program comes on the heels of a controversial ruling by a 
Paris court on November 20 that ordered Yahoo to begin using 
blocking software or other means to prevent Web surfers in France 
from gaining access to the parts of its auction site that featured over 
1,200 Nazi-related items -- everything from SS belt buckles to Nazi 
arm bands. Judge Jean-Jacques Gomez of the Superior Court of 
Paris gave Yahoo three months to toe the line. After the deadline, 
the company would be subject to contempt fines of about $13,000 for 
each day it failed to block out France, the judge Santa Clara-based 
Yahoo.  

The Yahoo case first rose to public attention last May 22, when 
Judge Gomez ordered Yahoo, which is based Santa Clara, Calif., to 
take all measures to "render impossible" the ability of French 
Internet users to gain access to Nazi-related auctions hosted on the 
company's English-language auction pages. The court also asked 
Yahoo to prevent French eyeballs from accessing any of its other 
services -- such as chat rooms or hosted Web pages -- that featured 
discussions constituting "an apology of nazism or which contest the 
Nazi crimes."  

In reaching his decision, Judge Gomez said that Yahoo Inc.'s 
display of Nazi souvenirs and speech justifying Nazi crimes 
violated a section of the French criminal code. Yahoo's France-
based subsidiary, Yahoo France, does not currently host auctions 
for Nazi memorabilia or host Nazi-related discussions in violation of 
French law.  

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

Last month, Yahoo filed suit in federal district court in San Jose, 
Calif., asking a judge to declare that the French ruling -- and any 
resulting fines -- should not be enforced in the United States against 
Yahoo Inc.'s assets. In legal papers, Yahoo argued that the French 
decision violated United States notions of jurisdiction and was 
repugnant to the First Amendment. Yahoo Inc. has said that it has no 
assets in France that could be seized by the French court.  

In public comments this week, Yahoo officials asserted that the new 
monitoring scheme had nothing to do with the actions of Judge 
Gomez but rather were part of a general housecleaning of its auction 
policy and the result of ongoing discussions with Jewish groups in 
the United States, such as the Los Angeles-based Simon 
Wiesenthal Center.  

Rabbi Abraham Cooper, associate dean of the Wiesenthal Center, 
said in a telephone interview from Israel that he had been meeting 
with Yahoo officials for about two years. He said that he applauded 
the company's decision to eliminate Nazi-related auctions and is 
hopeful the firm will extend its monitoring program to include its 
youth clubs. But he said that he believed the French court's recent 
decision was "the catalyst" behind the company's move. "They had 
a p.r. black eye," he said.  

Critics are upset about more than the possible precedent 
established by Yahoo's new monitoring policy. The ACLU's 
Steinhardt, for example, fears that the company's legal action in 
federal court may lose its force.  

"The Yahoo move complicates their own litigation," Steinhardt said. 
"I would think an American court would look to see if there is a ripe 
controversy here" before it issues a declaratory judgment, he said. 
But he observed that there has been no effort yet to enforce any 
order or fine against Yahoo and that the gist of the case -- Nazi 
auction materials -- has been eliminated.  

Putting legal issues aside, Steinhardt added that he is 
"disappointed" that Yahoo would succumb to pressure from United 
States-based groups to censor speech.  

The Yahoo actions are more subtle and praiseworthy than critics 
suggest, other lawyers said. Ian Ballon, an Internet law expert 
based in Palo Alto, said the company's decision to sanitize its 
commercial auction sites of hateful materials while maintaining 
strict First Amendment protection over so-called hate speech on its 
non-commercial sites was a good compromise.  

"It sounds to me that they have taken a fairly pragmatic approach," 
Ballon said. "Like a lot of Silicon Valley companies, they're 
continuing to do business and have routed around legal problems." 
He added that most large American companies do not offer Nazi-
related items for sale.  

Furthermore, as a Yahoo lawyer pointed out, the company has not 
done everything that Judge Gomez desired. After all, in the spirit of 
free expression, the company will continue to permit discussions on 
its hosted personal Web pages and clubs, accessible in France, that 
apologize for Nazism or contest Nazi crimes -- so long as the 
discussions do not incite violence.  

"Judge Gomez can still say that we are in violation" of part of his 
order, said Greg Wrenn, associate general counsel for Yahoo's 
international division. "That's why it is important that we pursue our 
declaratory judgment action in federal court in California."  

Wrenn added later: "We are not going to acquiesce in the notion that 
foreign countries have unlimited jurisdiction to regulate the content 
of U.S.-based sites."  

Copyright 2001 The New York Times Company  





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