-Caveat Lector-
CDT POLICY POST Volume 7, Number 6, July 11, 2001
A BRIEFING ON PUBLIC POLICY ISSUES AFFECTING CIVIL LIBERTIES ONLINE
from
THE CENTER FOR DEMOCRACY AND TECHNOLOGY
CONTENTS:
(1) US Court Agrees to Hear Yahoo!'s Challenge to French Claim of
Jurisdiction
(2) CDT Files Amicus Brief Highlighting Threat to Free Expression
in Trans-Border Rulings
(3) Foreign Courts' Exercise of Jurisdiction over Web Content Seen
in Other Cases
(4) Key Jurisdiction Issues Arising in Disparate Forums
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(1) US Court Agrees to Hear Yahoo!'s Challenge to French Claim of
Jurisdiction
Yahoo! has cleared a key legal hurdle as it seeks relief in US courts
from a French court ruling that set a dangerous precedent for speech
and commerce online. The case arises from a decision by a French court
in November 2000, which ordered Yahoo! to block French users from
accessing auctions -- hosted on Yahoo's US-based servers -- of Nazi
paraphernalia and other items.
On June 7, 2001, in the case of Yahoo! Inc. v. LICRA, a federal court
in California denied a motion to dismiss Yahoo!'s request to declare
the French ruling unenforceable. The California decision opened the
way for the US court to take up the merits of Yahoo's claim that the
French court exceeded its jurisdiction. The US court's opinion
indicated that those who seek to use the foreign courts to control
US-based Web sites will face legal challenges to enforcement of those
judgments.
The background is this: Last year, a French court ruled that Yahoo!,
by allowing its Web site to be accessed from France, ran afoul of
France's law criminalizing the exhibition or sale of racist materials.
In spite of arguments that it would be technologically difficult to
block only French users, the French court ordered Yahoo! to implement
the necessary technology, or face heavy daily fines. The court
specifically directed Yahoo! to re-engineer its content servers in the
United States and elsewhere to enable them to recognize French Internet
Protocol addresses and block their access to Nazi material. It also
required Yahoo! to ask users with "ambiguous" IP addresses to declare
their nationality when they arrive at Yahoo!'s home page or when they
initiate a search using the word "Nazi."
After the French court's ruling, Yahoo! filed a lawsuit in the federal
district court in its home district in California asking for a
declaratory judgment that the foreign verdict was unenforceable in the
US. Yahoo! argued that US courts should refuse to enforce the French
judgment because it contravened fundamental US policy, namely, the
strong protection of free speech offered by the First Amendment. Yahoo!
pointed out that freedom of expression is recognized not only in the
United States as a fundamental constitutional right, but also under
international law. Yahoo! also argued that the French judgment
conflicted with a US law that immunizes ISPs from liability for content
that originates with third parties.
The US court ruling and the French Yahoo! decision, translated into
English, can be found at http://www.cdt.org/jurisdiction/
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(2) CDT Files Amicus Brief Highlighting Threat to Free Expression in
Trans-Border Rulings
This may seem a little convoluted -- a US court case seeking to block
a French court decision. But the issue goes to the heart of the
Internet freedom: Holding Web publishers in one country liable for
simply publishing material that may be considered inappropriate when
viewed by citizens of another country would chill free expression and
commerce on the Internet. Online speech and commerce cannot be open
and vibrant if governments can extend jurisdiction over foreign-hosted
content.
The French Yahoo! ruling jeopardizes the Internet's unique ability to
support free expression and other democratic values. Most countries
have laws controlling some kinds of speech, but these laws vary widely
based on culture. From country to country, prohibitions may cover
sexually-explicit materials, hate speech, blasphemy, libel, certain
kinds of advertising, national security information, or criticism of
government officials.
When countries attempt to control content on the Internet by applying
their domestic laws to speech originating outside of their country, the
threat to freedom of expression is real. Imagine if every Web site were
subject to the laws of all 180 countries in the world. Ironically, it
would be the voices from poorer countries that might be stifled the most,
as small creators of content would find it impossible to comply with so
many different laws.
Making these arguments, CDT filed a "friend of the court" brief in support
of Yahoo!, joined by the American Association of Publishers, the Freedom
to Read Foundation, the ACLU, Human Rights Watch, People for the American
Way, the Society of Professional Journalists, and others. CDT is following
the case closely.
Yahoo!'s briefs, CDT's amicus brief, and other materials on the case are
available at http://www.cdt.org/jurisdiction/.
----------------------------------------------------------------
(3) Exercise of Jurisdiction by Foreign Courts Seen in Other Cases
Since the Yahoo! case, several other foreign court decisions held Web
sites in other countries liable for content, illustrating the threat
to freedom of speech online.
* The German Federal Court of Justice ruled that the country's
legislation banning communications glorifying the Nazis and denying
the Holocaust applies to all aspects of the Internet, no matter what
their country of origin, or how the information is presented. The
case concerned Frederick Toben, an Australian-based Holocaust
revisionist who denied that millions of Jews died during World War II.
Toben, who was born in Germany and carries an Australian passport,
was found guilty in November 1999 of promoting his opinions on
Holocaust denial through printed leaflets and Web pages. Sentenced to
10 months in prison, Toben appealed, arguing that since his Internet
material was "printed" outside of Germany, it was not subject to
German legislation.
The Federal Court disagreed, and in doing so effectively set the
precedent that all material published on the Web is subject to German
legislation. In their ruling last December, Federal Court judges said
that the laws prohibiting racial hatred clearly apply to Internet
material created outside of Germany and stored on servers outside the
country, but which is accessible to German Internet users.
* Also last year, an Italian appellate court ruled that Italy had
jurisdiction over a libel case brought by an Italian citizen based on
statements and images injurious to his reputation and privacy that
had been posted on a Web site hosted outside Italy. The court found
that a "theory of ubiquity" allowed the case to go forward on the
ground that, while the offending conduct took place outside of Italy,
the effects were felt within the country. The case was sent back to
the Italian lower court for further investigation on the facts.
The Italian libel decision, translated into English, is posted at
http://www.cdt.org/international/001227italiandecision.pdf
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(4) Key Issues of Jurisdiction Arising in National and International
Forums
When can one country impose its law on a Web site based in another
country? This is one of the most complex issues in Internet policy
today - with implications for consumer protection, intellectual property,
and freedom of expression. The issue of extraterritorial control over the
Internet is coming up repeatedly in a variety of contexts:
* France is considering a draft Information Society Law that would allow
French judges to order ISPs to block the flow of data that is deemed
offensive under French law. Under this proposal, Internet service
providers would be civilly liable when they have been informed of
apparently illegal content and have not deleted it or denied access
to it. This proposal would apply not only to host providers, but also
to access providers, in effect, codifying and extending the decision
in the Yahoo! case.
* Meanwhile, an international body known as the Hague Conference on
Private International Law has been drafting a convention that would
set international rules for determining in which foreign country a party
could be sued and when countries must recognize the judgments of foreign
courts. The "Hague Convention on Jurisdiction and Foreign Judgments in
Civil and Commercial Matters" is essentially designed to make it easier
to enforce court rulings across borders. The treaty covers many kinds of
civil lawsuits, and may include speech-related torts such as libel and
defamation. Consumer groups and free speech activists have warned that
the Convention may have a detrimental impact on Internet users,
particularly with regard to freedom of expression.
For more information on the Hague Convention, go to
http://www.cptech.org/ecom/jurisdiction/hague.html
* Finally, the US government has not maintained a consistent policy in
this regard. While United States courts have repeatedly affirmed the
importance of the Internet as a medium of communication and free
expression, and have generally rejected attempts to censor online
content, some in Congress and the Justice Department have wanted to
control content on Web sites overseas, for example, in cases involving
online gambling.
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Policy Post 7.06 Copyright 2001 Center for Democracy and Technology
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