The Yahoo Case: French Law Overstepping Its Boundaries

The conclusion reached in the case of Ligue Contre Le Racisme v. Yahoo! (2000) was not only unexpected, but appalling. Because the decision was made by a French court and did not apply United States laws, little consideration, if any, was given to free speech concerns. Yahoo’s right to speak and to post sensitive information on the Internet was curtailed. The ruling stated that the ISP must (somehow) block auction sites selling Nazi memorabilia from web users in France, because the sale and exhibition of such content is prohibited by French law. In this court case, we see the tension between freedom of expression and censorship that has become the focal point of much of this week’s reading. I will admit that France has a legitimate interest in protecting people of Jewish faith or heritage from such upsetting symbols, as well as preventing “an offense to the collective memory of a nation profoundly murdered” by the atrocities of the Nazi regime, as the French court puts it. (France’s interest in protecting its citizenry is analogous to the U.S. government’s legitimate interest in protecting children from representations of obscenity and violence, an issue touched on in much of the class materials.) However, the need to further the good of society does not necessarily have to come in conflict with free speech ideals. Sissela Bok, author of Mayhem: violence as public entertainment, characterizes this as merely a “perceived dilemma” and points out that “both producers and consumers have many ways to exercise control that are quite unrelated to censorship” (125).

The legal solution does not appear to be an effective way of dealing with this problem – that is, the overarching problem of racist and hateful speech being made easily accessible in France via the Internet. The Court’s decision does not affect or address any other instances of hateful, or specifically anti-Semitic, speech that are surely entering France from foreign sources through the channels of cyberspace.   According to Juriscom.net, David Kerr, Chief Executive of the Internet Watch Foundation, "remains skeptical of how Yahoo! Inc.’s decision will lead to a reduction of the tremendous amount of hate-related material on the Web.  Kerr said that the Yahoo! Inc. change in policy was strictly an ‘ethical’ decision and that it will only amount to ‘a drop in the ocean’."

Why can’t France deal with this problem on its end? Instead of the source having to bear the burden of remedying the problem, action should be taken on the part of the end user or by the French government. Filtering software presents a viable tool for fighting online hate and exemplifies exactly what Sissela Bok referred to as the consumer’s ability to exercise control. Alternatively, the government could prohibit French ISPs from carrying the websites in question. If either of these means was adopted, then not only the “offensive” sites offered by Yahoo but also all the other hate-filled sites that populate cyberspace would be blocked. This solution would be more extensive and would more adequately serve the French government’s interest. 

Following the precedent set by this case, every country in the world could demand that Yahoo conform to its laws and block certain sites or features that their local law prohibits. Where will it stop? What Yahoo is posting on the web is perfectly legal under American jurisdiction. One of the main purposes of the First Amendment is to protect the speech we loath. Material expressing Nazi sympathy is constitutionally protected, as are all expressions of racist or extremist ideas as long as they do not fall within specifically designated categories of speech such as fighting words, incitement, true threats, etc. Because Yahoo’s speech is protected within the U.S., I believe that Yahoo should not be implicated further. Here we have a nation (France) trying to impose local laws on the vast global realm of the Internet. However, if France wishes to follow the example of China and block certain sites that it has deemed offensive within its own boundaries, then that is its own business. 

Furthermore, Yahoo France already adheres to French law by not carrying the auction sites or services which sell Nazi items. Even though French Internet users can access the company’s U.S. site, why should that make the burden fall on Yahoo? I would argue that if one is going to enter into the free realm of the Internet, which is largely ungovernable or solely governable by peers, then one must be ready for whatever he or she may encounter. It may be naïve to think that one can take the good aspects of the Internet without the bad. The hackers involved in Hactivismo agree with this general notion, stating that “[t]here’s an arrogant and misguided notion that somehow dictators will be able to exploit the Internet to improve their economies, yet put a chokehold on content they don’t like.”

Although I respect the objectives of the French anti-racism groups that filed suit against Yahoo, I would posit that this Nazi material may be used for beneficial purposes, not solely for the pernicious ones of promoting hate. Scholars and academics performing research need to have access to such content. Moreover, I don’t know that the presentation and sale of Nazi items necessarily implies that they are being used to glorify or promote hatred. Nazi memorabilia – in essence historical artifacts – serve as proof of the Holocaust’s existence in the face of denial. These uniforms, insignia, etc., immortalize the tragedy and refuse to let it be forgotten. Although these auction sites may produce a great deal of social harm, they may also offer a degree of social good. Christopher Wolf, Chair of the International Network Against Cyber-Hate (INACH), reaffirms my negative feelings toward the court’s decision: “The case brought against Yahoo! to enforce the French law that prohibits the selling or display of neo-Nazi memorabilia in the end trivialized the speech codes directed at Holocaust deniers, and created a series of precedents that could prove unhelpful in future, more serious prosecutions.”  

How does French law even apply to U.S.companies? Judge Gomez, who presided over the case, “ruled that the American Web site Yahoo! Inc. could be sued under French law as long as the alleged infraction was committed on French territory.”  But was the alleged infraction actually committed on French territory? I would argue no. The alleged infraction was not committed on French territory in the physical sense, nor is the company based out of France. Thus, how does this French court have jurisdiction over Yahoo? How do local laws in a foreign land apply to an American-based Internet company? The BBC News reported in November of 2000 that the French court ruling would be almost impossible to enforce. Nevertheless, the threat of further monetary fines levied by the French court was apparently powerful enough to make Yahoo halt its auctioning practices. However, it is my contention that clicking over to the U.S. version of Yahoo is akin to a user crossing into U.S. territory where U.S. jurisdiction and laws should apply.

Question: Would peer governance of cyberspace help, in any way, to remedy this conflict of interest between French law and the First Amendment?

If someone would like to counter my position and defend the French court’s decision, please do!

Comments

[Seeta Peña Gangadharan]

Lots of good points here. Let me try and recap so I can respond.

First, you argue that national legal jurisdictions are rendered problematic by the internet.

Second, prevention of harmful hate speech can be dealt with by other more effective means other than direct content-specific censorship.

Third, France's attempt to regulate US-based companies has a potentially dangerous global chilling effect.

Fourth, even within the bounds of French jurisdiction and within the context of France's experience with Nazism and even with or without the internet, their prohibition is overbroad and chills speech.

Fifth... and this is more inference/response than recap of your words, peer regulation might be one way to solve the problem.

In general, while I agree with first and second points, the last three are contentious. Let me go out on a limb here and state that I think the First Amendment is culturally-specific that depends on active history of the people it intends to protect. Free expression can be variably interpreted or implemented--as you suggest in your appeal to other mechanisms for censoring harmful content/hate speech.

What works in the United States, in other words, cannot necessarily nor should not necessarily be applied to other countries. This type of argument entails all sorts of connections that might be beyond a discussion of hate speech (e.g., are there such things as universal rights?)... but I think it is important to mention and gets at points three and four.

An additional response to your points is more speculative (well--maybe there's a bit of empirical data to support this) than philosophical. That is--to what extent is the internet already being "balkanized" or made more geographically-rooted and less the "global village?"

The linguistic diversification of the internet may be a boon for governments wishing to fend of harmful content. So that might not be the case with France, because they love Hollywood movies, learn English, etc. But it is potentially the case in nations where populations use character-based languages--i.e., Asia.

The fact of linguistic diversification might enable governments to promote other mechanisms by which to regulate hate speech. (More control of language use, more control over regulation of harmful language.)

That's a bit of question mark... but something to chew on, especially in relation to your points two and three.

As for the last point you raise about peer governance... I'm not too optimistic here. I think I posted something on this before (sorry-I can't seem to hyperlink to it), but my fears for peer governance resemble typical concerns for any self-regulatory mechanisms... and then some. While self-regulation might commit to terms of accountability, I mistrust the enforcement of accountability standards.

What might work better, however, is some mix or halfway point that accounts for the practicality of self-regulation and the need for government oversight.

[hkelley]

First of all, I think the French court's actions are futile, because anyone in France can get these hate items from another auction site.
Secondly, I think you raise a good point by saying that these artifacts could be used for good (education, verification of the atrocities, ect.).
I just wanted to clarify for you why the US submitted to French jurisdiction. Yahoo brought a case to the district court in San Jose, which found in favor of Yahoo, citing the First Amendment. The case was appealed to the 9th circuit though, which reversed in favor of the French, saying that the defendants (groups representing French interest) only acted in regard to French transactions and that Yahoo was subject to the rules of France because they agreed to do business there. I would say that for those reasons that it's a legitimate ruling, except that it chills speech everywhere since there are no means for Yahoo to comply with French law except by eliminating all hate/racist items from its auction site.
I don't think peer governance or the First Amendment is needed to solve this problem. I think the French government needs a dose of reality and tolerance. There's nothing to solve. People in China, Singapore, Iran, and Saudi Arabia are willing to risk their lives to go where their government doesn't want them to online. Whatever the punishment is in France, I'm sure it's not life threatening, so I doubt it stops most (anyone) from going where they please. If anything it just drives hate/racism further underground to fester without other points of view, which I will venture is more dangerous than the previous situation.

[Elizabeth Audrey]

Seeta noted in her post that “What works in the United States, in other words, cannot necessarily nor should not necessarily be applied to other countries.” I absolutely agree with this statement. I did not mean to imply that U.S. law should be applied to France. However, when Yahoo decided to make a universal change to its auction site based on this court case, it seemed as though the reverse occurred and that French law was being applied to the U.S. and the rest of the world. Based on the reasons I provided for why the presentation of Nazi artifacts might be beneficial, I am not comfortable with the fact that the auction sites were taken off the Internet altogether.