Yahoo!, Inc. v. La Ligue
Contre Le Racisme et L'Antisemitisme
N.D.Cal.,2001.
Nov. 7, 2001.
California Internet service provider (ISP) sued French parties who had obtained order from French court requiring ISP to block French citizens' access to Nazi material displayed or offered for sale on ISP's United States site, seeking declaration that order was unenforceable in the United States. On ISP's motion for summary judgment, the District Court, Jeremy Fogel, J., held that: (1) ISP's claims presented an "actual controversy"; (2) French order presented a real and immediate threat to ISP's First Amendment rights; (3) Court would not abstain from deciding declaratory judgment action; (5) French order would not be recognized; and (6) French parties were not entitled to a continuance for further discovery.
FOGEL, Jeremy.
Plaintiff moves for summary
judgment. Defendants oppose the motion. The Court has read the moving and
responding papers and has considered the oral arguments of counsel presented on
September 24, 2001. For the reasons set forth below, the motion will be
granted.
I. PROCEDURAL HISTORY
Defendants La Ligue Contre Le Racisme Et
l'Antisemitisme ("LICRA") and L'Union Des Etudiants Juifs De France,
citizens of France, are non-profit organizations dedicated to eliminating
anti-Semitism. Plaintiff Yahoo!, Inc. ("Yahoo!") is a corporation
organized under the laws of Delaware with its principal place of business in
Santa Clara, California. Yahoo! is an Internet [FN1] service provider that
operates various Internet websites and services that any computer user can
access at the Uniform Resource Locator ("URL") http://www.yahoo.com.
Yahoo! services ending in the suffix, ".com," without an associated
country code as a prefix or extension (collectively, "Yahoo!'s U.S.
Services") use the English language and target users who are residents of,
utilize servers based in and operate under the laws of the United States.
Yahoo! subsidiary corporations operate regional Yahoo! sites and services in
twenty other nations, including, for example, Yahoo! France, Yahoo! India, and
Yahoo! Spain. Each of these regional web sites contains the host nation's
unique two-letter code as either a prefix or a suffix in its URL (e.g., Yahoo!
France is found at http://www.yahoo.fr and Yahoo! Korea at http://www.yahoo.kr
). Yahoo!'s regional sites use the local region's primary language, target the
local citizenry, and operate under local laws.
Yahoo! provides a variety of
means by which people from all over the world can communicate and interact with
one another over the Internet. Examples include an Internet search engine,
e-mail, an automated auction site, personal web page hostings, shopping
services, chat rooms, and a listing of clubs that individuals can create or
join. Any computer user with Internet access is able to post materials on many
of these Yahoo! sites, which in turn are instantly accessible by anyone who
logs on to Yahoo!'s Internet sites. As relevant here, Yahoo!'s auction site
allows anyone to post an item for sale and solicit bids from any computer user
from around the globe. Yahoo! records when a posting is made and after the
requisite time period lapses sends an e-mail notification to the highest bidder
and seller with their respective contact information. Yahoo! is never a party
to a transaction, and the buyer and seller are responsible for arranging
privately for payment and shipment of goods. Yahoo! monitors the transaction
through limited regulation by prohibiting particular items from being sold
(such as stolen goods, body parts, prescription and illegal drugs, weapons, and
goods violating U.S. copyright laws or the Iranian and Cuban embargos) and by
providing a rating system through which buyers and sellers have their transactional
behavior evaluated for the benefit of future consumers. Yahoo! informs auction
sellers that they must comply with Yahoo!'s policies and may not offer items to
buyers in jurisdictions in which the sale of such item violates the
jurisdiction's applicable laws. Yahoo! does not actively regulate the content
of each posting, and individuals are able to post, and have in fact posted,
highly offensive matter, including Nazi-related propaganda and Third Reich
memorabilia, on Yahoo!'s auction sites.
On or about April 5, 2000,
LICRA sent a "cease and desist" letter to Yahoo!'s Santa Clara
headquarters informing Yahoo! that the sale of Nazi and Third Reich related
goods through its auction services violates French law. LICRA threatened to
take legal action unless Yahoo! took steps to prevent such sales within eight
days. Defendants subsequently utilized the United States Marshal's Office to
serve Yahoo! with process in California and filed a civil complaint against
Yahoo! in the Tribunal de Grande Instance de Paris (the "French
Court").
The French Court found that approximately 1,000 Nazi and Third Reich
related objects, including Adolf Hitler's Mein Kampf, The Protocol of the
Elders of Zion (an infamous anti-Semitic report produced by the Czarist secret
police in the early 1900's), and purported "evidence" that the gas
chambers of the Holocaust did not exist were being offered for sale on
Yahoo.com's auction site. Because any French citizen is able to access these
materials on Yahoo.com directly or through a link on Yahoo.fr, the French Court
concluded that the Yahoo.com auction site violates Section R645-1 of the French
Criminal Code, which prohibits exhibition of Nazi propaganda and artifacts for
sale. [FN2] On May 20, 2000, the French Court entered an order requiring Yahoo!
to (1) eliminate French citizens' access to any material on the Yahoo.com
auction site that offers for sale any Nazi objects, relics, insignia, emblems,
and flags; (2) eliminate French citizens' access to web pages on Yahoo.com
displaying text, extracts, or quotations from Mein Kampf and Protocol of the
Elders of Zion; (3) post a warning to French citizens on Yahoo.fr that any
search through Yahoo.com may lead to sites containing material prohibited by
Section R645-1 of the French Criminal Code, and that such viewing of the
prohibited material may result in legal action against the Internet user; (4)
remove from all browser directories accessible in the French Republic index
headings entitled "negationists" and from all hypertext links the
equation of "negationists" under the heading "Holocaust."
The order subjects Yahoo! to a penalty of 100,000 Euros for each day that it
fails to comply with the order. The order concludes:
We order the Company YAHOO!
Inc. to take all necessary measures to dissuade and render impossible any
access via Yahoo.com to the Nazi artifact auction service and to any other site
or service that may be construed as constituting an apology for Nazism or a
contesting of Nazi crimes.
High Court of Paris, May 22,
2000, Interim Court Order No. 00/05308, 00/05309 (translation attested accurate
by Isabelle Camus, February 16, 2001).
The French Court set a return date in July 2000 for
Yahoo! to demonstrate its compliance with the order.
Yahoo! asked the French
Court to reconsider the terms of the order, claiming that although it easily
could post the required warning on Yahoo.fr, compliance with the order's
requirements with respect to Yahoo.com was technologically impossible. The
French Court sought expert opinion on the matter and on November 20, 2000
"reaffirmed" its order of May 22. The French Court ordered Yahoo! to
comply with the May 22 order within three (3) months or face a penalty of
100,000 Francs (approximately U.S. $13,300) for each day of non- compliance.
The French Court also provided that penalties assessed against Yahoo! Inc. may
not be collected from Yahoo! France. Defendants again utilized the United
States Marshal's Office to serve Yahoo! in California with the French Order.
Yahoo! subsequently posted
the required warning and prohibited postings in violation of Section R645-1 of
the French Criminal Code from appearing on Yahoo.fr. Yahoo! also amended the
auction policy of Yahoo.com to prohibit individuals from auctioning:
Any
item that promotes, glorifies, or is directly associated with groups or
individuals known principally for hateful or violent positions or acts, such as
Nazis or the Ku Klux Klan. Official government-issue stamps and coins are not
prohibited under this policy. Expressive media, such as books and films, may be
subject to more permissive standards as determined by Yahoo! in its sole
discretion.
Yahoo Auction Guidelines (visited Oct. 23, 2001)
<http:// user.auctions.Yahoo.com/html/guidelines.html>. Notwithstanding
these actions, the Yahoo.com auction site still offers certain items for sale
(such as stamps, coins, and a copy of Mein Kampf) which appear to violate the
French Order. [FN3] While Yahoo! has removed the Protocol of the Elders of Zion
from its auction site, it has not prevented access to numerous other sites
which reasonably "may be construed as constituting an apology for Nazism
or a contesting of Nazi crimes." [FN4]
Yahoo! claims that because
it lacks the technology to block French citizens from accessing the Yahoo.com
auction site to view materials which violate the French Order or from accessing
other Nazi-based content of websites on Yahoo.com, it cannot comply with the
French order without banning Nazi-related material from Yahoo.com altogether.
Yahoo! contends that such a ban would infringe impermissibly upon its rights
under the First Amendment to the United States Constitution. Accordingly,
Yahoo! filed a complaint in this Court seeking a declaratory judgment that the
French Court's orders are neither cognizable nor enforceable under the laws of
the United States.
Defendants immediately moved to dismiss on the basis
that this Court lacks personal jurisdiction over them. That motion was denied.
[FN5] Defendants' request that the Court certify its jurisdictional
determination for interlocutory appeal was denied without prejudice pending the
outcome of Yahoo!'s motion for summary judgment.
II. OVERVIEW
As this Court and others
have observed, the instant case presents novel and important issues arising
from the global reach of the Internet. Indeed, the specific facts of this case
implicate issues of policy, politics, and culture that are beyond the purview
of one nation's judiciary. Thus it is critical that the Court define at the
outset what is and is not at stake in the present proceeding.
This case is not about the
moral acceptability of promoting the symbols or propaganda of Nazism. Most
would agree that such acts are profoundly offensive. By any reasonable standard
of morality, the Nazis were responsible for one of the worst displays of
inhumanity in recorded history. This Court is acutely mindful of the emotional
pain reminders of the Nazi era cause to Holocaust survivors and deeply
respectful of the motivations of the French Republic in enacting the underlying
statutes and of the defendant organizations in seeking relief under those
statutes. Vigilance is the key to preventing atrocities such as the Holocaust
from occurring again.
Nor is this case about the
right of France or any other nation to determine its own law and social policies.
A basic function of a sovereign state is to determine by law what forms of
speech and conduct are acceptable within its borders. In this instance, as a
nation whose citizens suffered the effects of Nazism in ways that are
incomprehensible to most Americans, France clearly has the right to enact and
enforce laws such as those relied upon by the French Court here. [FN6]
What is at issue here is whether it is consistent
with the Constitution and laws of the United States for another nation to
regulate speech by a United States resident within the United States 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 speaker and audience virtually
meaningless, the implications of this question go far beyond the facts of this
case. The modern world is home to widely varied cultures with radically
divergent value systems. There is little doubt that Internet users in the
United States routinely engage in speech that violates, for example, China's
laws against religious expression, the laws of various nations against advocacy
of gender equality or homosexuality, or even the United Kingdom's restrictions
on freedom of the press. If the government or another party in one of these
sovereign nations were to seek enforcement of such laws against Yahoo! or
another U.S.-based Internet service provider, what principles should guide the
court's analysis?
The Court has stated that it
must and will decide this case in accordance with the Constitution and laws of
the United States. It recognizes that in so doing, it necessarily adopts
certain value judgments embedded in those enactments, including the fundamental
judgment expressed in the First Amendment that it is preferable to permit the
non-violent expression of offensive viewpoints rather than to impose
viewpoint-based governmental regulation upon speech. The government and people
of France have made a different judgment based upon their own experience. In
undertaking its inquiry as to the proper application of the laws of the United
States, the Court intends no disrespect for that judgment or for the experience
that has informed it.
…
V. CONCLUSION
Yahoo! seeks a declaration
from this Court that the First Amendment precludes enforcement within the
United States of a French order intended to regulate the content of its speech
over the Internet. Yahoo! has shown that the French order is valid under the
laws of France, that it may be enforced with retroactive penalties, and that
the ongoing possibility of its enforcement in the United States chills Yahoo!'s
First Amendment rights. Yahoo! also has shown that an actual controversy exists
and that the threat to its constitutional rights is real and immediate.
Defendants have failed to show the existence of a genuine issue of material
fact or to identify any such issue the existence of which could be shown
through further discovery. Accordingly, the motion for summary judgment will be
granted. The Clerk shall enter judgment and close the file.
IT IS SO ORDERED.