French Nazi Memorabilia Case Presents Jurisdiction Dilemma

August 11, 2000

By CARL S. KAPLAN

French Nazi Memorabilia Case Presents Jurisdiction Dilemma

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n Europe, where memories of World War II are still fresh in the minds of those who lived through it, the sale of Nazi and Fascist memorabilia often sparks indignation.
Today, that passion is being played out in a courtroom in Paris, where French authorities are seeking to force an American company, Yahoo Inc., to restrict French citizens from gaining access to Nazi artifacts that appear on its English-language auction site, which is available to online surfers around the world.
Whatever the outcome of the hearing today, the case points up an enduring legal and cultural puzzle about speech and commerce in borderless cyberspace: What happens when the laws and traditions of a country that receives an online message clash with the laws and values of the land where the message originated?
In this case, which began in May, the question is posed in even starker terms. Should Yahoo Inc. bow to a French law condemning the trivialization of the Nazi era, or should France yield to Yahoo's rights of freedom of expression as embodied in the United States Constitution?
"The Yahoo case points up a dilemma in the law of jurisdiction," said Henry H. Perritt Jr., dean of the Chicago-Kent College of Law and an expert in Internet law.
"If a Web site is accessible to all, and is subject to jurisdiction by every nation on earth, then the laws of the lowest common denominator nation" will govern the Internet, he said. "On the other hand, if we say that the only important law is the one where the content provider resides, then local values of foreign nations will not be enforced. We also run the risk of creating havens for shyster practices."
The Yahoo case first rose to public attention on May 22, when Judge Jean-Jacques Gomez of the Superior Court of Paris ordered Yahoo Inc., based in Santa Clara, Calif., to "dissuade and render impossible" the ability of Web surfers in France to gain access to sales of Nazi-related objects that appear on an auction service hosted by Yahoo.com.

Legal scholars differ over how the case should be resolved.

Judge Gomez ruled that the display in France of Nazi souvenirs, for the purpose of sale, is a violation of French law (article R.645-2 of the Criminal Code). He also said the online exposition of Nazi artifacts in France is "an offense against the collective memory of a country profoundly wounded by the atrocities committed by and in the name of the Nazi criminal enterprise."
Judge Gomez further declared that because Yahoo Inc. permitted the visualization in France of the Nazi objects, a harm had been suffered in France. Accordingly, the Paris trial court was "competent" to assert jurisdiction over Yahoo Inc., said Judge Gomez. The court's ruling marked the first time that a French Judge had issued a prior restraint against a foreign Internet company.
The suit was originally filed by two groups in France, the International League Against Racism and Anti-Semitism (LICRA) and the Union of French Jewish Students. Objecting to what they charged was a "banalizing of Nazism," according to court documents, both organizations sought to stop the English-language auction sales from appearing in France.
On Yahoo.com's auction site, more than 1,200 Nazi-related items -- everything from Nazi flags and uniforms to belt buckles and medals -- are offered to cyberspace consumers under the shield of U.S. notions of free expression. Yahoo's France-based subsidiary, Yahoo France, does not host auctions for Nazi memorabilia.
At a hearing on July 24, representatives for Yahoo told the court that while the company was opposed to racism and respected French law, it was technically impossible for it to block French surfers from its Yahoo.com auction site.
Lawyers for the other side disagreed, but also argued that if Yahoo couldn't filter out French surfers it should remove the Nazi items from its U.S.-based site. More arguments on the issue of the feasibility of filtering are scheduled for tomorrow. Yahoo, which has financial assets in France, faces the possibility of steep fines if it doesn't comply with the court's May order.
Legal scholars in the United States differ over how the Yahoo case should be resolved.
Yahoo defenders argue that while France can impose its own law on its citizens, it's not entitled to impose its views on the rest of the world. "What the government of France is trying to do is apply its laws outside its borders," said Michael Traynor, a lawyer in San Francisco who is acting as special counsel to Yahoo in the case. "If anybody in France feels that they don't want to view Nazi artifacts, they don't have to look at anything they object to. It's a voluntary act to look at information."
Traynor added that he believed that the French law in question might violate certain free expression standards embodied in European human rights laws, to which France is subject. He said Yahoo might eventually appeal an adverse result from Judge Gomez, either to an appellate court in France or to the European Court of Human Rights.
Dean Perritt of the Chicago-Kent Law School said he is hopeful that an appellate court in France will find that Yahoo Inc. is not subject to jurisdiction in that country because Yahoo.com has not "targeted" its auctions to French citizens.
"It seems to me that Yahoo de-targeted France in the sense that the Yahoo France Web site, which is in French, does not have the items in controversy," he said. "For French authorities to go after Yahoo.com nevertheless is an exorbitant exercise of jurisdiction that is inconsistent with emerging best practices."
But Jack Goldsmith, a law professor at the University of Chicago and an expert in Internet jurisdiction, takes a different view. He said that it is appropriate for a French court to assert jurisdiction over Yahoo because "Yahoo has something on its Web site that is being accessed by French citizens that violates French law."

Internet links of interest to Cyber Law Journal readers

It is true, Goldsmith said, that France in a sense is trying to impose its law on a United States. company. But the alternative is for a United States company to impose its home-town laws regarding permissible expression on France. "The harmful effects are running in both directions," he said.
For Goldsmith, the answer to the dilemma is for Yahoo to adopt some kind of filtering technology that reasonably screens out French citizens. Judge Gomez shouldn't insist that Yahoo make it "impossible" for French surfers to gain access to its U.S.-based Nazi auctions, just more difficult, he said.
"If the technology is 95 percent effective, it will have a significant effect on the ability of French citizens to get the content," Goldsmith said. "That's all France needs to do." Goldsmith added that many Internet-related jurisdictional conflicts could be solved by the use of fast-improving technology that screens out surfers on the basis of country of origin.
Thomas P. Vartanian, a Washington, D.C.-based lawyer who heads a committee on cyberspace law for the American Bar Association, said that he expects to see more cases like Yahoo in the coming years "unless the world can agree on what the standards for jurisdiction should be."
Vartanian and an international group of lawyers recently completed a two-year study that, among other things, called for the creation of an international body to develop uniform global principles of Internet jurisdiction. The risk of inaction, Vartanian warned in an interview, could result in a smothering of the emerging e-commerce golden goose.

CYBER LAW JOURNAL is published weekly, on Fridays. Click here for a list of links to other columns in the series.

Related Sites
These sites are not part of The New York Times on the Web, and The Times has no control over their content or availability.

Yahoo
catalog of nazi-related goods available on Yahoo.com-hosted auctions
Unofficial English translation of Judge Gomez' May 22nd court order in LICRA v. Yahoo, Inc. and Yahoo France, from Web site of French attorney Daniel Lapres
"Webliography" of Yahoo case, from Web site of Daniel Lapres
ABA project on Internet jurisdiction; contains link to draft study: "Achieving Legal and Business Order in Cyberspace: A Report on Global Jurisdiction Issues Created by the Internet"

Carl S. Kaplan at kaplanc@nytimes.com welcomes your comments and suggestions.

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