France wins; Yahoo! rolls over.

[Dave_Stewart]

Just noticed this gem:

The Internet does not discriminate, and it is no respector of international borders.

You sound like James Boyle, internet guru and philosopher:

“…it was not so much that nation states would not want to be able to regulate the Net, it was that they would be unable to do so, forestalled by the technology of the medium, the geographical distribution of its users, and the nature of its content.”

Absolute crap. I recently sued (on behalf of a client) a guy in Singapore with a server in China in a court in Hong Kong. The law does not tolerate the internet’s supposed freedom, no matter where the law may be. Lots of US cases on that (see the website I linked above).

[clairobscur]

*Originally posted by owlstretchingtime *
**Where do we Europeans go with this sort of thing once the European Corpus Juris comes in?

For instance; a five minute walk from my office there is a militaria shop that will sell you just about anything the Nazis ever made (BTW it’s biggest customers are Americans!). THis is perfectly legal in Britain, and in fact not a big deal (we had a very diffrerent war to mainland europe and didn’t have to suffer under the Nazis directly).

So that’s two European states 3 hours by train apart, with two totally contradictory laws. Will the French be able to enforce this law if this shop were to operate a mail order business (which I’m pretty sure it does)? **

I suppose it would be the same situation than this Yahoo thing. Some french court could condemn the british company, and it would have zero consequences (apart for the buyer, that is).

[Northern_Piper]

I’ve now had a chance to skim the original French judgment , and the U.S. federal court decision, both available as .pdf downloads from this page. I’d like to comment on a few points.

First, the French judgment names two defendants: Yahoo! Inc., and Yahoo France, which appears to be a French company, with a place of business in France. The Court gave judgment against both, although the particular orders varied.

Second, in response to the various concerns raised that French courts have no business telling American companies what they can and cannot do, it’s useful to consider the principles governing court jurisdiction. One of the simplest is territorial: if the person or corporation is within the territorial jurisdiction of the court, the person or corporation is subject to the court’s substantive jurisdiction. Thus, I would respectfully disagree with Derleth’s assertion that French courts have no business asserting jurisdiction over Americans. They can do so, in appropriate circumstances, just like American courts, in appropriate circumstances, can assert jurisdiction over French citizens and corporations. A court’s jurisdiction is not limited to its own citizens. Most court systems recognise that courts in other countries can assert jurisdiction over non-citizens.

Third, so what does allow a court to assert jurisdiction? The answer varies somewhat in different legal systems, but one of the standard sources of jurisdiction is over corporations created under the laws of the territorial jurisdiction.

Significantly, it appears from the French court decision that Yahoo France did not challenge the court’s jurisdiction over it. Knowing nothing of French law, I would nonetheless assume that any such challenge would be futile. If Yahoo France is incorporated under French law, then French courts have jurisdiction over it. End of story.

What seems to have people’s knickers in knots is the French court asserting jurisdiction over Yahoo! Inc., an American company. Well, one of the other standard sources of jurisdiction, particularly over artificial persons such as corporations, is to ask if they are doing business in the territorial jurisdiction in question. If they are, then the courts have substantive jurisdiction over them.

That appears to be the basis for the French court’s assertion of jurisdiction over Yahoo! Inc. The court stated:

Whereas YAHOO is aware that it is addressing French parties because upon making a connection to its auctions site from a terminal located in France it responds by transmitting advertising banners written in the French language;

Whereas a sufficient basis is thus established in this case for a connecting link with France, which renders our jurisdiction perfectly competent to rule in this matter;

So, the court asserted jurisdiction because Yahoo! Inc. was consciously doing business in France. If a corporation is trying to do business in another country, it renders itself liable to that country’s laws, just as a French corporation doing business in the U.S. is subject to U.S. laws.

Fourth, with respect to the issue whether it was technologiclly impossible for Yahoo! Inc. to comply with the order of the court, the court noted that there were technological difficulties, but also noted:

Whereas it should be borne in mind that YAHOO Inc. already carries out geographical identification of French surfers or surfers operating out of French territory and visiting its auctions site, insofar as it routinely displays advertising banners in the French language targeted at these surfers, in respect of whom it therefore has means of identification; whereas YAHOO Inc. cannot properly maintain that this practice amounts to “crude technology” of limited reliability, unless it were felt that YAHOO Inc. had decided to spend money with no hope of a return or that it was deliberately misleading its advertisers about the quality of the services which it had undertaken to offer them, which does not appear to be so in this case

So, it appears that the court concluded from Yahoo! Inc.'s own technology and business practices that it could in fact comply with the order, which is a significant point.

*Originally posted by Revtim *

U.S. District Judge Jeremy Fogel ruled that the First Amendment protects content generated in the United States by American companies from being regulated by authorities in countries that have more restrictive laws on freedom of expression.

<snip>

“It means that the ability of people in the United States to make information available on the Internet is ultimately going to be governed by the First Amendment, regardless of where it’s accessed, not the lowest common denominator of accepted content in all countries,” said Yahoo’s deputy general counsel, Greg Wrenn.

I’m not sure I’d agree with this interpretation of the decision. As I read it, Yahoo applied to the U.S. District Court for an order that the French court was not enforceable, by courts in the United States, and that’s what the court ordered. That does not mean that the French court order is of no effect, in France. So if Yahoo! Inc. has assets in France, or in any other country which chooses to recognise the French decision, the decision presumably could be enforced against Yahoo! Inc.

[Revtim]

UPDATE:
http://www.cnn.com/2003/TECH/biztech/02/11/france.yahoo.reut/index.html

A French criminal court Tuesday acquitted the former president of U.S. Internet giant Yahoo Inc. of condoning war crimes by selling Nazi memorabilia, in a victory for campaigners for free speech on the Internet.

[erislover]

Yahoo!