Technology &
Internet Law

Conflicting Jurisdictions in an Online Environment - The Yahoo! Case (2001)

A US District Court in California has declared that a landmark ruling by a French court, which ordered Yahoo! Inc to block French web users from its auction sites which sell Nazi memorabilia, was not enforceable against Yahoo! because it contravened US guarantees of free speech.  Indeed, Judge Jeremy Fogel concluded that Yahoo! is protected by the First Amendment of the US Constitution, which ensures freedom of expression in the US.

Conflict of Laws

On 20 November 2000 a French court ordered the blocking on the basis that it was illegal in France to sell or display anything that incites racism. It set a legal precedent whereby one country could reach beyond its borders to enforce its laws abroad.  It also meant that the owner of a web site In one country could be subject to the laws of another country from which the website was merely accessed.  The ramifications of this on ecommerce cannot be overstated. 

Judge Fogel was aware of the far-reaching effects of his judgment on ecommerce and the Internet.  Indeed, he prefaced his judgment, saying: 'The instant case presents novel and important issues arising from the global reach of the Internet.  Indeed this case implicates issues of policy, politics and culture that go beyond the purview of one nation's judiciary'.

However, he made clear that the case is not about the moral acceptability of promoting the symbols or propaganda of Nazism (which he found profoundly offensive), nor the right of France (or any other country) to determine its own law and social policies. 

National Sovereignty

The issue for the US court was whether it was inconsistent with the US Constitution for another nation to regulate speech by a US resident within the US on the basis that such speech can be accessed by Internet users in that nation.  In a world in which ideas and information transcend borders and the Internet in particular renders the physical distance between speakers and audience virtually meaningless, the implications of this question are far reaching. 

The US First Amendment, held the court, upheld the fundamental proposition that 'it is preferable to permit the non-violent expression of offensive viewpoints rather than impose viewpoints-based governmental regulations'.  This may be a different judgement from that made by the government and people of France based upon their experience. 

The court felt that, owing to the First Amendment, the French court order is of a kind which a US court could not make. 

Enforcement Issue

Judge Fogel further held that a US court could not enforce the French judgment - even though as a general rule international comity (i.e., the rule that full faith and credit be given to judgments of sister states of the US) would require such enforcement - because such enforcement would be prejudicial or contrary to the country's interest. 

Conflict in Application

Accordingly, it was held that the US Constitution precludes the enforcement within the US of a French order intended to regulate the contents of its speech over the Internet.  This even though the French order was valid under the laws of France.  The nub of the decision was that the enforcement of the French order in the US would freeze Yahoo!'s First Amendment rights. 

Human Rights Issues

How an English court (or for that matter the European Court of Human Rights) would deal with such a case as this, given the freedom of expression provisions under the Human Rights Act 1998, is not easy to predict.  This is because in comparison to the US Constitution, our human rights provisions are far less stringent.  However, we are concerned that if the case is not overturned (it is awaiting appeal at this stage), it sets a dangerous precedent for the Internet and the future of e-business. 

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