By Emmanuel Poteaux and Pierre SERY

Yahoo! vs LICRA

By Emmanuel Poteaux and Pierre SERY

DESS DICOM Université d’Orléans

English Class

Internet has become one of the most important means of communication. Any Internet user in the world can have access to any information at the other side of the world.

Such a progress in information technology has brought new legal issues. As a matter of fact, law from a country to another can be much different. For example, a website that respects the law from a country might not respect the law of another country. In such a situation, we can raise the question of national boundaries in cyberspace and of the jurisdiction that is applicable.

We can illustrate this issue through the famous Yahoo! versus LICRA[1] (Ligue Internationale Contre le Racisme et l’Antisémitisme) case (or shall we say cases).

Yahoo! inc. is an American company based in California which in part, maintains an auction site. This site was accessible to French citizens. Through it, Yahoo! engaged in the exhibition and sale of Nazi items in France, violating Article R645-2 of the French Penal code.

The LICRA and the UEJF (l’Union des Etudiants Juifs de France) two French associations struggling against racism brought an action against Yahoo! inc. in order to prevent French web-surfers from accessing this auction site.

The French judge considered himself competent and ordered Yahoo to ban the access for French users to all Nazi items using as cause of action articles R.645-1 and R.645-2 of the French penal code.

The 24th of July 2000, Yahoo! through an expert panel opinion claimed it was impossible to filter French people’s accesses. So, the 11th of august 2000, the French judge called three international experts. There were Francis Wallon, information system judicial expert; Vinton Cerf, one the TCP/IP protocol creator and Ben Laurie, the Apache Software founder. The 20th of November, French court declared Yahoo! had three months to comply. After this date, the 20th of February 2000, Yahoo! had to pay 100000 francs per day.

The matter was that nothing forced the American society to comply with the French order. The enforcement of an American jurisdiction was necessary. The case was then judged by the court of San Jose, California. Christophe Pecrard, Yahoo’s French lawyer declared that the aim was to check the compatibility of the French order with the American Law and to know if a French judge was competent to order injunctions to a foreign society.

The Californian court said that the 1st amendment of the American constitution, relative to free speech, prevailed over French law. According to the court :” Although France has the sovereign right to regulate what speech is permissible in France, this court may not enforce a foreign order that violates the protections of the United States Constitution by chilling protected speech that occurs simultaneously within our borders.”

It is interesting to notice that Yahoo!, for marketing reasons decided, the 2nd of January 2001, to ban all items of hate from appearing onto its auction’s website.

As a consequence, we are still unaware of what would have happened if Yahoo! had not chosen to remove the Nazi items from its auction site. This case has been discussed all over the world inside the Internet community and the legal environment. As a matter of fact, everybody thought this case could have given a solution to our issue of national boundaries and of the jurisdiction that is applicable. We are still expecting another case or an international regulation to finally have a reasonable solution.

The problem is that Internet was originally built on an idea of absolute liberty of communication and not on a global and commercial use. International Law issues like the one raised in the Yahoo versus LICRA case were not in the mind of the Internet designers.

Therefore, it will be interesting to deal with the conflict of Laws due to technical problems (I) and to scrutinize the possible solutions to the jurisdiction issues (II).

I-Conflict of Law in Cyberspace and technical remedies

In the Yahoo! v. LICRA case, the sale of Nazi items was not possible in France while it was allowed in the United States. The reason for this situation is that the idea of freedom of speech is much different between those two countries.

A-Freedom of speech versus French Penal Code

First Amendment US Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Freedom of speech is considered as one of the most fundamental principles in the United States. We think of "speech" as an extremely broad concept that includes oral and written communication, the press, the arts, certain expressive conduct, the media, and etc. – all modes and methods by which we express our knowledge, thoughts, opinions, and feelings. Speech is, in a somewhat simplified view, the medium for information. "Free speech", as it stands in the American Constitution, does not mean an absolute freedom. There are values and ideologies that place an order upon what otherwise would be a chaos of information. A racist does not have the right to teach his extreme views to certain children against the will of their parents, because a family is an institution that has certain recognized values that society has an interest in protecting. The list could be very long. The relative value of speech, and therefore the level of protection conferred by law, depends on the "context" of speech. Thus, the First Amendment is more protective in public places – streets, parks, and than places that are not "public" at all.

Even though those restrictions to free speech exist, particularly concerning racist contents, the sale of Nazi items is considered to be in accordance with the US Constitution and the First Amendment. In the United States, some groups of pressure like the ACLU (American Civil Liberties Union), an American association whose purpose is to defend and preserve people’s individual rights and the liberties guaranteed by the US Constitution and the American laws, are in favour of an absolute free speech

In France, freedom of speech is a fundamental right too. As a matter of fact, freedom of speech is included in the “Déclaration des droits de l’homme et du citoyen” of 1789. However, this freedom is not as important as it is in the United States. France has a more global vision of this freedom, with a freedom of speech assimilated with a freedom which by nature, must respect some limits to not lose its legitimacy.

The article R645-2 of the French penal Code is one of these limits. This article is the one that has been raised by the LICRA and the UEJF during the French orders. According to this article, the exhibition of objects representing symbols of Nazi ideology for purposes of sale is prohibited. By permitting Nazi objects to be viewed in France and allowing surfers located in France to participate in such a display of items for sale, Yahoo! was committing a fault on the French territory. Such conduct “clearly causes damage in France to the plaintiffs who are justified in demanding the cessation and reparation thereof”.

We are faced here with two very different ideologies concerning free speech. The American view is almost absolute while the French one is strictly limited. According to the first amendment interpretation, the use of racist remarks is tolerated. Such a difference can seem surprising. The problem is not to know who is right or who is wrong; it is all about a cultural differences. Both countries have their own historical backgrounds which both have to be respected.

Internet is a technical tool that permits to share those backgrounds. In the other hand, the problem we met in the Yahoo! versus LICRA case can be raised everyday. For example, Muslim countries cannot let their inhabitants have access to websites that would be against their morality. As a consequence, some technical solutions had to be found.

B-Technical remedies

In the Yahoo! versus LICRA case, the French court found that Yahoo! could identify the geographical origin of a visitor to the Auction site. The court noted that Yahoo! is aware that it is addressing French parties because, upon making a connection to its auction site from a terminal located in France, Yahoo responds by transmitting advertising banners written in the French language.

However, if Yahoo had to comply with the order of the French judge to take every measures to dissuade or render impossible, any consultation on Yahoo.com by websurfers on the french territory of the auction site, of Nazi items and of any other site or service that constitutes an apology to Nazism or a questioning on Nazi crimes, we have to admit that such an order would be technically impossible.

Following the expert-panel report, the court found that 70% of the Internet Protocol (IP)[2] addresses assigned to French surfers can be matched with certainty to a service provider located in France. These addresses could be filtered because it is this fact that enables Yahoo! to display French advertising banners. For the ones that are not recognized with certainty, the expert panel considered the feasibility of requiring the surfer to make a sworn declaration of nationality. The combination of these two procedures would be likely to achieve a filtering success rate approaching 90% according to the panel.

The identification of a surfer by her IP adress is not really reliable because some Internet Servide providers (ISP) give their users IP adresses declared as belonging to the country where the head-office of the company is established. For example, AOL is uses the services of the UUNET network which is located in Virginia.

The sworn declaration of nationality is hazardous because the user is free to declare a false information.

Yahoo could have used a filtering by keywords. But many websites contain many references to Nazis on the Yahoo! Network which are criticisms of the Nazi ideology

Anyway, it is very easy for a smart surfer to avoid such filters. For example, such a surfer could use an “anonymiser”[3] or do “IP spoofing”[4], or use any other technical “tricks” generally used by hackers.

Some countries are concerned too about such problems (for less honorable reasons) and found other ways to solve those technical issues.

For example, China knows more than 166 million surfers. When they try to access a search engine, they are redirected to another site like cj888.com or 21cn.com. Such a practice is used by the Chinese government for a matter of “security” and all Chinese Internet Service providers (ISPs) are concerned. The Chinese government blocks every occidental news websites, the sites of dissidents and in general any foreign website. For example, Google has been blocked for its function as a search engine and because the site contains many copies of forbidden sites to which Internet experts can access.

Such control is possible thanks to the development of a «firewall»[5] which is able to prevent people from accessing the forbidden pages. Another system has been developed to ban some words in the search engines like “democracy” and to monitor chat rooms and newsgroups.

Another example is Saudi Arabia. This country established the censorship of forbidden sites thanks to a database software indexing a maximum of sites. Every time a demand to a website is made, it is checked if the site is not on the black list. Such a filtering had a cost of about 85 million euros for Saudi Arabia. In spite of all these efforts, many sites past through this filtering. As a consequence, many programs have been developped to scan all the new pages that appear on the global network. However, the great cost of this system does not give the results expected by the Saudi arabian government.

II-Cyberspace and national jurisdictions

Internet is considered to be a revolution because, using it, you can communicate in real time with people all over the world. If it can be an extraordinary means of communication, we can also considerate it as a way to spill criminality all over the world very quickly. The Yahoo case is a good example of it. But, the matter is that, this case had not given a solution to this conflict of settlement between a damage committed in a country and punished by this one, and a society based on another country which does not consider facts in the same way. So, we can wonder how it could have been settled, using the current law (A). But, we’ll see that a answer is very hard to find, that’s why a real solution has not been pronounced, so, we’ll try to find a way to settle those conflicts of law (B).

A-The current law

The French judge said that he was competent to sue Yahoo. When a conflict is linked to several countries, you have to choose between different laws, different courts and sometimes, those courts have to apply laws from foreign legislations. So, when you know the laws wich have to be used, it's necessary to choose the competent tribunal. The article 46 of the Civil Procedure Code said that the competent court is the one of the plaintiff resident, or where the damage has been created if it would have been created in France. That's why judge Gomez has been declared comptetent in this case. In France, we have to notice that for lawsuits linked to problems about Internet content, french courts are always considered as competent because litigious informations could be accessible from all the french territory. Some jurists , like Etienne Wery declared that french courts were not competent. From his view, the auction site was concerning american buyers only, because of the website english tongue, low prices in dollars wich let think about a local market only. But, in the present case, it was not sustained.

In general, the state territory gives boarders to the applicable law. But, the matter with Internet is that you have a tool wich is characterized by its extra-territoriality. So, you need to rule this mean of communication by using national laws. If the French judge is allowed to rule this case and has the power to give orders, a lot of conflicts grew out of this case. How can be applied a french law by an american courts? Could French rules be used to govern internet?

Gleg Wrenn’s answer, one of Yahoo.Inc lawyer, is in the negative. We can, objectivily, say that it will be hard to accept that an other country blocks one of our website using its own legislation. We have, previously, seen that one of the solution to settle this conflict is to create technicals remedies to prevent the access to the auction's website. Even if it's hard to install those numerical barriers, we can technically do it (using IP adress for example). But, an other problem appears because, foreigners, using internet in France will be banned from websites even if they are allowed in their country.The other way to settle the problem is to find a juridical solution.

In Europe, the solution would be easier because you can use the “exequatur” to apply an order pronounced by a foreigner court. But with the American federalist system, the matter can’t be settled because the USA don’t have ratified agreements. The American congress had understood that internet was a way to say all that everybody wants to say. So, to punish full of hatred messages, congress had voted,on the 1st of February 1996, the communication decency act. It could have been a good issue to this Yahoo case. But, some associations like American civil liberties union or American library association had criticized this act, in the name of free speech. And the Supreme Court has declared, on the 26th of june 1996 that this act was unconstitutional because it was a woolly restriction to free speech.

So, we can quickly conclude that nothing has been created to settle those conflicts between Europeans countries and the USA. Internet has brought up this problem and the Yahoo case has not settled it. On the contrary, it has been a questions source. But, if nothing has been created, we can try to find some solutions.

B-Potential solutions

We can think in two ways: an a priori or a posteriori way to settle it. Is it better or easier to prevent or to settle conflicts?

From an a priori point of view, it is possible to create numerical certificates. Those one have been proposed by Lawrence Lessig, who is a professor from Harvard.. The advantage of the numerical certificates is to have a content of web sites which differs in accordance to your nationality. But, it induces a heavy process. Moreover, if those numerical certificates are attributed to each country, we have the same problem as the previous one. An American who wants to access a web site, which is allowed in the USA, would be rejected if he is in France for example. In the same way, Micel Alberganti proposes un virtual passport. He gives the example of Verisign wich costs 16 Euros a year. The inconvenience will be to create borders on Internet, which is a paradoxical solution.

Nothing is anticipated with internet, that’s the problem. In a contract, you could write the Right which is able to be applied in case of conflict but in a case like Yahoo, it’s impossible. In the same point of view, a system could be created with different terms of use that you have to choose according to your nationality. You have to trust internet users because they can click as American even if they are French. But, they can’t sue the society for a damage due to their own mistake.