By Eric Auchard
A U.S. appeals court declined to intervene on Thursday on behalf of
Yahoo Inc. , the world's largest Internet media company, saying
U.S. courts have no jurisdiction in a case pitting free speech against
a French law barring the sale of Nazi memorabilia.
In a case that pitted U.S. freedom of speech rights against European
anti-hate group statutes, the U.S. 9th Circuit Court of Appeals
reversed a lower court ruling that had rejected French plaintiffs
attempts to enforce French laws against U.S. companies in U.S. courts.
In a mixed decision, an 11-judge panel said that because Yahoo had
voluntarily complied "in large measure" with the French court's orders
and barred the sale of Nazi memorabilia from its site in France,
Yahoo's free speech petition has become a moot issue.
"Unless and until Yahoo changes its policy again, and thereby more
clearly violates the French court's orders, it is unclear how much is
now actually in dispute," the court's majority said.
A Yahoo attorney said the Sunnyvale, California-based company was
aware of the decision and formulating a response.
"The only precedent is that when foreign plaintiffs try to impose
censorship on U.S.-based Web sites, U.S. courts have jurisdiction,"
said Mary Catherine Wirth, Yahoo's former senior international legal
counsel, now director of data protection.
The lower U.S. court previously had declared as unenforceable a French
court action against Yahoo by two French anti-Nazi groups, La Ligue
Contre Le Racisme et L'Antisemitisme (LICRA) and L'Union des
Etuidiants Juifs de France (UEJF).
A U.S. district court initially sided with Yahoo in arguing that the
French court's decision to require Yahoo to restrict access to hate
group Web pages on Yahoo's global auctions site violated U.S. free
speech principles.
When a three-judge panel of the higher-ranking 9th Circuit looked at
the case in 2004, the decision was reversed.
The legal fight kicked off when a French court ruled in 2000 that
Yahoo must remove pages that contained links to Adolph Hitler's
autobiography Mein Kampf, the fabricated anti-Jewish tract "Protocols
of the Elders of Zion" and to Web sites that denied the existence of
Hitler's Holocaust.
The French court said Yahoo was liable to pay daily fines, which, if
enforced over the five years since the ruling, would amount to $15
million for displaying hate-group memorabilia.
In the latest ruling, the 9th Circuit said that because Yahoo had
largely complied with the French court's order by limiting the sale of
some hate-group memorabilia on its auction site, "It is extremely
unlikely that any penalty, if assessed, could ever be enforced against
Yahoo! in the United States.
"Further, First Amendment harm may not exist at all," the court's
majority opinion stated, referring to the basic U.S. law protecting
free speech rights.
A concurring opinion written by a minority of the appeals court noted
that "criminal statutes of most nations do not comport with the U.S.
Constitution. That does not give judges in this country the unfettered
authority to pass critical judgment on their validity," even in cases
deemed to involve "morally reprehensible speech of the worst order."
Susan Crawford, a law professor who teaches a course on cyberlaw at
Cardozo School of Law in New York, labeled the decision a "missed
opportunity" to decide whether "it is appropriate for one country to
assert extraterritorial jurisdiction over (Web) servers located in
another country."
"The facts in this case allowed the court to avoid the difficult
diplomatic issues raised by the dispute," she said.
(Additional reporting by Jim Christie in San Francisco)
Copyright 2006 Reuters Limited.
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Eric Auchard (reuters@telecom-digest.org)