Judge Jean Jacques Gomez gave judgement in proceedings brought against Yahoo!.com by three Jewish/anti-racist organisations
Topic: Selling On-line
Who: Yahoo! Inc, LICRA, UEJF and MRAP
When: November 2000
Where: The Tribunal De Grande Instance Paris
Judge Jean Jacques Gomez gave judgement in proceedings brought against Yahoo!.com by three Jewish/anti-racist organisations. It was alleged that Yahoo! had breached R645-1 of the French Penal Code. The law criminalises any dealing in Nazi memorabilia, which was being auctioned off on a site hosted by Yahoo! Inc. The site was in English and could not be accessed direct through Yahoo!.fr. Accordingly Yahoo! Inc denied jurisdiction and also ran a first amendment/free speech argument based on US law. The French judge, however, held he had jurisdiction as the wrong in question was being done in France every time a French resident accessed the offending site. Having been satisfied by an independent tribunal that it was technically possible for Yahoo! Inc to take measures to sift out 90% of French surfers who might otherwise have accessed the site, Gomez J ordered Yahoo! Inc to take these measures within three months or face up to £1,000 a day fines.
Why this matters:
For those doing business on the web, the doomsday scenario has always been having to comply with the legal requirements of every state where the site can be accessed. Up until now, most web site proprietors have ignored this risk and largely escaped legal difficulties. Jurisdictional complexities, enforcers' limited resources and lack of physical presence in problematic states have made the risk a commercially acceptable one for many.
Although it is highly likely that Yahoo! will appeal, as things presently stand this French judgement could change the landscape at a stroke. Just as the UK's TV networks are a soft target when brand owners want to take their competitor's hard hitting comparative advertising off air, ISPs may now offer an "easy win" for state regulators who might otherwise have not considered it worthwhile to devote resources to hunting down an obscure web site operator on the other side of the world. On the positive side, the French court did refuse to levy fines against Yahoo! until they had been given a fair amount of time to incorporate the technology apparently capable of stopping most French people accessing the offensive auction site. By far the more worrying aspect, however, is the appartant debunking by the independent panel of experts of the myth that it is technologically impossible for search engine providers such as Yahoo! to stop surfers from a particular state accessing a particular site.