The Law of Defamation and the Internet

Update 6

Yahoo!, Inc v LICRA, United States District Court, Northern District of California, Judge Fogel, 7 November 2001

A French court decision requiring an American defendant to prevent certain material from being accessible via the Internet in France is held to be unenforceable in the United States.

This decision concerns the enforceability in the United States of orders made by Premier Vice-President Gomez of the Tribunal de Grande Instance de Paris compelling an American defendant, Yahoo!, to take all necessary measures to prevent a web site making Nazi memorabilia available for sale from continuing to be accessible in France. The background to the French case and the orders made by Premier Vice-President Gomez are discussed in para 20.21 of The Law of Defamation and the Internet.

The sale of Nazi memorabilia is prohibited in France, but constitutes protected free speech in America under the First Amendment to the United States’ Constitution.

Yahoo! sought a declaratory judgment that the French Court’s orders were ‘neither cognizable nor enforceable’ under the laws of the United States.

In granting the relief sought, Judge Fogel said:

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.

His Honour went on to say, citing decisions including Matusevitch v Telnikoff, 877 F Supp 1 (DDC, 1995) and Bachchan v India Abroad Publications Inc, 585 NYS 2d 661 (NY County SC, 1992):

Although France has the sovereign right to regulate what speech is permissible in France, this court may not enforce a foreign order that violates the protections of the United States Constitution by chilling protected speech that occurs simultaneously within our borders.

Telnikoff v Matusevitch and Bachchan v India Abroad Publications Inc are discussed in paras 22.05 and 22.06 of The Law of Defamation and the Internet.

Judge Fogel added the following important qualification to the jurisdiction of American courts:

If a hypothetical party were physically present in France engaging in expression that was illegal in France but legal in the United States, it is unlikely that a United States court would or could question the applicability of French law to that party’s conduct. However, an entirely different case would be presented if the French court ordered the party not to engage in the same expression in the United States on the basis that French citizens (along with anyone else in the world with the means to do so) could later read, hear or see it. While the advent of the Internet effectively has removed the physical and temporal elements of this hypothetical, the legal analysis is the same.

LICRA has announced an appeal to the Ninth Circuit Court of Appeals.

A copy of the decision can be found by following this link.

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