by Hillel I. Parness*
Last April, two French organizations brought suit in Paris against Yahoo! Inc., alleging that Yahoo’s popular Internet portal – located at www.yahoo.com -- violated French law by providing access to auctions of Nazi artifacts and to Yahoo-hosted web pages containing certain writings regarding Nazism.[1] On May 22, 2000, the County Court of Paris ordered Yahoo! Inc. to “take all measures to dissuade and make impossible any access via Yahoo.com to the auction service for Nazi objects and to any other site or service that may be construed as constituting an apology for Nazism or contesting the reality of Nazi crimes;”[2] and ordered Yahoo! France – Yahoo’s French website located at www.yahoo.fr -- to warn all visitors that if their searches led them to any sites regarding Nazi artifacts or apologies for Nazism, “the surfer must desist from viewing the site concerned subject to imposition of the penalties provided in French legislation or the bringing of legal action against him.”[3]
On November 6, 2000, the Paris court reviewed Yahoo’s and Yahoo France’s compliance with its May order, as well as Yahoo’s arguments against the portion of the order concerning Yahoo.com.[4] Yahoo’s arguments included (i) that the court did not have jurisdiction over Yahoo Inc. and the Yahoo.com website, (ii) technical compliance would be impossible, and (iii) Yahoo.com’s operations are directed toward residents of the United States.[5] On November 20 the court rejected all of Yahoo’s arguments, ordering complete compliance with its May order within three months.[6]
On December 21, 2000, Yahoo brought suit in Federal court in California against the two parties that brought the French suit, seeking a declaratory judgment that “the Paris Court’s May 22nd and November 20th Orders, or any comparable orders hereafter issued against Yahoo!, are not recognizable and enforceable,”[7] on several theories, including immunity under the Good Samaritan provision of the Communications Decency Act of 1996,[8] the Paris court’s failure to obtain personal jurisdiction over Yahoo,[9] and violation of the public policy in favor of freedom of expression.[10] Although one never knows upon which issue a court will seize when analyzing a complex case such as this, each of these issues – protection for ISPs, free speech, and jurisdiction – are of vital importance to those involved in the Internet space, and in this case are most definitely intertwined.
On January 2, 2001, Yahoo announced that “Yahoo! has also refined its product guidelines across its commerce properties. Yahoo! will no longer allow items that are associated with groups which promote or glorify hatred and violence, to be listed on any of Yahoo!'s commerce properties – including Yahoo! Shopping, Yahoo! Store, Yahoo! Auctions and Yahoo! Classifieds. Prohibited listings include items such as Nazi militaria and KKK memorabilia.”[11] According to press reports, “Yahoo officials said the monitoring policy was not a response to the French ruling.”[12]
Yahoo argues that it is entitled to protection under the Good Samaritan provision – section 230 – of the CDA. This argument comes just one month after the decision in Stoner v. eBay, where a California state court immunized Internet auction site eBay, Inc. from liability for auctions of allegedly bootlegged musical recordings, under this same provision.[13]
The Good Samaritan provision of the CDA, one of the portions of the CDA to survive 1997’s ACLU v. Reno,[14] provides that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”[15] Under the CDA, “interactive computer service” (“ICS”) is defined as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.”[16] “Information content provider” (“ICP”), in turn, is defined as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.”[17] Congress passed this provision in large part expressly “to overrule Stratton-Oakmont v. Prodigy and other similar decisions which have treated such providers and users as publishers or speakers of content that is not their own because they have restricted access to objectionable material.”[18]
Until recently, all of the decisions applying the Good Samaritan provision have followed the pattern of those that prompted its passage – addressing ISP (or “ICS”) liability for online speech by third parties: Zeran v. America Online, Inc.,[19] Blumenthal v. Drudge,[20] Doe v. America Online,[21] and Ben Ezra, Weinstein, and Co. v. America Online Inc.[22] But the California Superior Court moved beyond all of these decisions with Stoner v. eBay, finding that eBay could also avail itself of Good Samaritan protection for posting information regarding third-party offerings of allegedly bootleg musical recordings, characterizing that action as speech. A decision in Yahoo’s favor regarding the auctions would forward this expansion, immunizing Yahoo for foreign criminal liability by characterizing its involvement in the auctions as speech. Although Stoner has no precedential impact on the Federal court in San Francisco, because the facts are so similar and because it was issued by a state court sitting in the same city, it will surely receive close scrutiny in evaluating Yahoo’s liability for the auction of Nazi artifacts. Yahoo’s responsibility for information on its hosted web pages seems an easy call in comparison – like Zeran, Blumenthal, Doe and Ben Ezra, the question is liability for third-party postings of speech, which is addressed squarely by the Good Samaritan provision. But probably not before the court concludes that the French court lacked jurisdiction, and/or that this country’s commitment to free speech trumps France’s interest in prohibiting Nazi-related speech.
In the November 20 decision, the Paris Court rejected Yahoo’s arguments that it lacked jurisdiction over the Internet company:
Whereas it is true that the “Yahoo Auctions” site is in general directed principally at surfers based in the United States having regard notably to the items posted for sale, the methods of payment envisaged, the terms of delivery, the language and the currency used, the same cannot be said to apply to the auctioning of objects representing symbols of Nazi ideology which may be of interest to any person.[23]
One of the most significant areas of Internet law, dating back to at least 1994, has been jurisdiction over individuals and companies acting via the Internet. Although the decisions have been wide-ranging in their conclusions and reasoning, in recent years many courts have begun to adopt a rule of reason, whereby those Internet actors that “avail themselves” of the forum are subject to suit, either specifically – by targeting consumers in the forum, or generally – by operating e-commerce sites that seek to, and do, attract consumers from all forums.[24] If this emerging rule were applied to the international sphere, the question would be whether Yahoo.com targets consumers in France. Based on the excerpt above, it seems that the French court may have followed the latter line of reasoning – on the theory that auctions of Nazi artifacts on Yahoo targeted consumers wherever they may be found, including in France. If the French court properly found Yahoo availed itself of the France forum for purposes of personal jurisdiction, the free speech and ISP liability angles may become irrelevant.
In its complaint for declaratory judgment, Yahoo wrote:
The Orders violate public policy in favor of freedom of expression recognized not only in the United States as a fundamental constitutional right, but also by treaty and international law, for example, as set forth in [listing treaties]. France is a signatory to all three of the foregoing.[25]
The thematic foundation of Yahoo’s argument is that the resale of Nazi artifacts, and even the dissemination of writings denying the Nazi atrocities, constitutes, under most circumstances, protected speech in the United States and some other countries. This understanding brings to light once again one of the fundamental legal concerns that has been shadowing the Internet since its emergence as an international conduit for information and commerce: civil, as well as criminal, liability abroad for behavior – particularly speech – which would otherwise be permitted and protected within the borders of the U.S. Whether or not Yahoo receives a ruling from the District Court that the French court was without jurisdiction, it has no inherent power to enforce that conclusion and nullify the foreign court’s findings.
The dispute reminds us that establishing a world-wide presence on the Internet has always been, and will continue to be, dangerous and unpredictable, as it subjects those involved to potential civil and criminal liability anywhere in the world, in countries that may or may not defer to, or even recognize, the rights and protections the U.S. confers upon its citizens. In this case and in others, the courts and others have begun exploring technical means of limiting access to people in certain jurisdictions, but a workable, agreed-upon standard has yet to emerge.[26] Congress has been very active in recent years, providing Good Samaritan protection under the CDA, as well as a number of safe harbors under the Digital Millennium Copyright Act, which have allowed companies like Yahoo, AOL and eBay to build significant presences on the web without worrying about automatic liability for uses, or abuses, of their computer systems by their customers. These protections, however, have done nothing to eliminate the problem of international liability, and may have lulled all of us into a false sense of security. It seems likely that the French Yahoo case is only the first of a new wave of cases exploring this issue, which will likely lead (as it already seems to have done in the case of Yahoo) to self-censorship and a watering down (leaving aside the author’s personal views on the value of Nazi historical revisionism) of content or offerings available through the large, established Internet players.
* © 2001 Hillel I. Parness. Hillel I. Parness, J.D. Columbia 1995, focuses on intellectual
property and Internet-issues litigation.
His prior articles on digital music and e-commerce issues, which have
appeared in IP Law Weekly, E-Commerce Law Weekly, Digital Music Weekly and Cyberspace Lawyer, are reprinted at http://www.hiplaw.com.
[1] See Complaint, Yahoo! Inc. v. La Ligue Contre Le Racisme Et L’Antisemitisme, C00-21275 (N.D. Cal. Dec. 21, 2000) (available at http://www.cdt.org/speech/international/001221yahoocomplaint.pdf) (“Yahoo Complaint”) ¶¶ 17-18.
[2] See Interim Order, League Against Racism and Antisemitism v. Yahoo! Inc., (Cty. Ct. Paris, Nov. 20, 2000) (English translation available at http://www.cdt.org/speech/001120yahoofrance.pdf) (“Interim Order”) at 4. The author is relying on this translation for his understanding of the Interim Order.
[3] Id. at 5.
[4] Id. at 2.
[5] Id. at 3.
[6] Compliance is directed by “three months from notification of the present order.” Assuming Yahoo was notified of the order on the date it was issued, Yahoo must comply by February 17, 2001.
[7] Yahoo Complaint at 12.
[8] Yahoo Complaint ¶ 42(a).
[9] Id. ¶ 42(f).
[10] Id. ¶ 42(b).
[11] “Yahoo! Enhances Commerce Sites for Higher Quality Online Experience,” Yahoo Press Release (Jan. 2, 2001) (available at http://docs.yahoo.com/docs/pr/release675.html).
[12] “Yahoo to Try Harder to Rid Postings of Hateful Material,” New York Times (Jan. 3, 2001) (available at http://www.nytimes.com/2001/01/03/technology/03YAHO.html).
[13] Order, Stoner v. eBay, Inc., No. 305666 (Cal. Super. Ct. Nov. 7, 2000) (copy on file with author). For expanded analysis of this decision, see “Storm Warning to Good Samaritans: Sail Clear of the Safe Harbor,” Cyberspace Lawyer (Dec. 2000) (available at www.hiplaw.com).
[14] 521 U.S. 844 (1997).
[15] 47 U.S.C. § 230(c)(1).
[16] Id. § 230(f)(2).
[17] Id. § 230(f)(3).
[18] S. Rep. No. 104-230, Telecommunications Act of 1996 (Feb. 1, 1996). In Stratton-Oakmont, Inc. v. Prodigy Services Co., 1995 WL 323710 (N.Y. Sup. May 24, 1995), the court granted plaintiff’s motion for summary judgment, holding Prodigy liable for online defamation that took place on one of its bulletin boards. This often was often contrasted with that of Cubby, Inc. v. Compuserve, Inc., 776 F. Supp. 135 (S.D.N.Y. 1991), where the court found Compuserve was not liable for such behavior.
[19] 129 F.3d 327 (4th Cir. 1997) (finding AOL to be immunized by the Good Samaritan provision for messages posted by individuals that falsely indicated that the plaintiff was the source of offensive and tasteless merchandise relating to the Oklahoma City bombing).
[20] 992 F. Supp. 44 (D.D.C. 1998) (finding AOL not liable for alleged defamation by Internet journalist Matt Drudge, whose columns were published on AOL, of White House aide Sidney Blumenthal).
[21] 718 So. 2d 385 (Dist. Ct. App. Fla. 1998) (emphasis added), rev. granted, 729 So. 2d 390 (Apr. 12, 1999) (AOL not liable for advertisement and sale of child pornography by third party over AOL).
[22] 206 F.3d 980 (10th Cir. 2000) (affirming finding that AOL qualified for Good Samaritan protection for allegedly defamatory information posted on AOL by third parties regarding plaintiff’s publicly-traded stock).
[23] Interim Order at 3.
[24] See Stomp, Inc. v. NeatO, LLC, 61 F. Supp. 2d 1074, 1078 (C.D. Cal. 1999) (“[a]lthough NeatO’s website provides information about the company, customer service, and technical support, a substantial portion of the site is dedicated to allowing the consumer to purchase NeatO’s products on-line. NeatO’s on-line sales constitutes conducting business over the Internet”); Bensusan Restaurant Corp. v. King, 937 F. Supp. 295 (S.D.N.Y. 1996) (finding District Court could not assert personal jurisdiction over a restaurant located in Columbia, Missouri, despite its “presence” on the Internet), aff’d, 126 F.3d 25 (2d Cir. 1997).
[25] Yahoo Complaint ¶ 42(b).
[26] For further information on this issue, see John Borland, “iCraveTV.com exec discusses his start-up’s short
life,” CNET News.com Feb. 29, 2000 (quoting iCraveTV CEO Bill Craig: “We've
determined the sincere importance of defining network boundaries. We've got to
figure out a way to independently figure out where people are located. The
Internet is not going to get class A programming until that's fixed.”)
(available at http://news.cnet.com/news/0-1004-200-1560999.html);
Stefanie Olsen, “Geographic tracking raises opportunities, fears,” CNET
News.com Nov. 8, 2000 (discussing feasibility of Yahoo’s blocking materials
based on location of origin); Interim Order at 4-15 (discussing findings
of technical consultants and concluding that “it is possible to determine the physical location of a surfer from the IP
address”).