SCN: Speech

[Steve]

x-no-archive: yes

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(Carl S. Kaplan, NY Times)---Since Sept. 11, nations that have 
strong laws and traditions against hate speech are apparently 
growing even more alarmed about inflammatory expression that 
they fear could lead to racial or religious violence.   

That worries some civil libertarians in the United States, who point 
to a French court decision that they believe handed governments 
and groups a blueprint for how to censor online hate speech that 
may be illegal within one country's borders but perfectly lawful 
elsewhere.   

A little more than a year ago, the judge in the French case, Licra v. 
Yahoo, shook the mahogany desks of lawyers around the world 
when he reaffirmed an earlier ruling that Yahoo, based in Santa 
Clara, Calif., had violated French law by allowing French citizens 
to view auction sites displaying Nazi memorabilia.   

The case has jumped the Atlantic and is making its way through 
the courts in the United States, where a federal judge has ruled 
that French sanctions against Yahoo - including $13,000 a day in 
fines - cannot be enforced in the United States. The two groups 
that sued the company in France, the International League Against 
Racism and Anti-Semitism (known as Licra) and the Union of 
French Jewish Students, are appealing the federal judge's 
decision in the United States Court of Appeals for the Ninth Circuit, 
in San Francisco.   

Regardless of the appeal's outcome, nations seeking to control 
+potentially harmful speech that arrives from offshore are seen as 
almost certain to use the French precedent to bolster their efforts.   

"They will not be tempted to do it - they will do it," said Jack 
Goldsmith, a professor at the University of Chicago Law School 
who frequently writes about Internet legal matters and is the author 
of a coming book, "Reining in the Net," about how countries are 
putting borders in cyberspace.   

That is what frightens Alan Davidson, a lawyer with the Center for 
Democracy and Technology, an Internet civil liberties group in 
Washington. The French Yahoo ruling "really puts free expression 
and communication in jeopardy on the Net," Mr. Davidson said, 
warning that online speech could sink to a single country's lowest-
common- denominator standard.   

Other legal thinkers, too, are beginning to consider the global 
implications of the Yahoo case with respect to hate and terrorist 
speech on the Internet. Several professors and lawyers - including 
the author of this article - will be discussing the topic today in 
Manhattan at a conference at Cardozo School of Law at Yeshiva 
University.   

The case came to public attention in May 2000, when Judge Jean-
Jacques Gomez of the County Court of Paris ordered in a 
preliminary decision that Yahoo take action to "render impossible" 
the ability of French Internet users to gain access to the Nazi-
related auctions found on Yahoo's English-language auction 
pages. In reaching his decision, the judge asserted that he had 
jurisdiction over Yahoo, even though it is based in the United 
States, because the content on Yahoo's computers in the United 
States was available to French users.   

The court also said Yahoo's display of the material in France had 
violated a section of France's criminal code, which reflects still raw 
memories of World War II.   

In a later ruling, in November 2000, Judge Gomez concluded that 
available technology would allow Yahoo to take reasonable steps 
to identify and block the disputed material from French eyes - thus 
allowing American users, for example, to continue to view the 
content. Unconvinced by Yahoo's arguments that such technology 
was deeply flawed, the judge said the company would be subject 
to a fine of about $13,000 for each day it did not comply with his 
earlier order.   

Yahoo announced later that it would more aggressively enforce its 
ban on hateful and racist material from its auction sites, but it said 
the move was not in response to the French legal proceedings.   

American civil libertarians applauded when Judge Jeremy Fogel of 
Federal District Court in San Jose, Calif., ruled that the French 
court's order and fine would not be enforced against Yahoo in the 
United States. The judge said it would be repugnant to the First 
Amendment for an American court to carry out the French order. 
The United States Constitution, he said, protects the display of 
artifacts or expression of viewpoints associated with extreme 
political views, including Nazism and anti-Semitism.   

But some legal observers question whether Judge Fogel's ruling, if 
upheld on appeal, is the shield that some large American Internet 
service providers say it is. After all, they argue, even if an 
American court will not enforce a foreign judgment that runs afoul 
of the Constitution's free-speech guarantees, the foreign court has 
other leverage. If a case involves a multinational company with 
assets abroad, the foreign court could lay claim to the company's 
funds, receivables or property within its jurisdiction. In addition, if 
the company's executives traveled to the foreign locale, the local 
judge could perhaps have them arrested.   

On the other hand, private individuals and companies with no 
foreign assets would presumably have less to worry about from a 
foreign court's order. Indeed, Yahoo has said it has no seizable 
assets in France - although some legal experts have suggested 
that money owed Yahoo by its French-language affiliate, Yahoo 
France, could be at risk.   

Given the potential leverage of a Yahoo- style case on 
multinational Internet companies, experts say that Judge Gomez 
has created a powerful tool for the suppression of online speech 
that a recipient nation finds offensive or dangerous. And some 
Western democracies are showing a heightened sensitivity to hate 
speech lately.   

Last month, a tribunal in Ottawa declared that a Holocaust-denial 
Web site based in California and controlled by a one-time 
Canadian resident ran afoul of the Canadian Human Rights Act. 
"The tribunal acknowledged the ability to enforce its judgment was 
severely limited," said Michael Geist, a professor at the University 
of Ottawa's Faculty of Law who is an expert in Internet law. "But it 
wanted to make clear that this form of hate speech was illegal in 
Canada and not to be tolerated."   

More significant, perhaps, the 43-nation Council of Europe plans 
later this year to propose a side agreement to a pending 
international cybercrime treaty. The side agreement would make 
computer distribution of racist and xenophobic propaganda a 
crime.   

The United States, which has signed though not yet ratified the 
general cybercrime treaty, blocked attempts to include the 
category of Internet hate speech in the treaty itself. But the fact 
that nations are still discussing a ban on online hate speech 
suggests that other cases against inflammatory terrorist or hate 
speech on the Internet could land on court dockets soon, warned 
Barry Steinhardt, associate director of the American Civil Liberties 
Union. "I think it can and will happen, especially against 
multinational corporations," he said.   

But not all legal experts in this country agree that a slew of Yahoo-
type cases would be bad thing. Some argue that countries can 
choose for themselves what is lawful within their own cyberborders 
- that just because the world is becoming networked, all nations 
need not adhere to American free-speech traditions. "That," said 
Mr. Goldsmith at the University of Chicago, "is the essence of 
territorial sovereignty."   


Copyright 2002 The New York Times Company





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