The 9th U.S. Circuit Court of Appeals will hear a case involving Internet portal Yahoo, French anti-racism laws, Nazi memorabilia auctions, and whether American-based speech can be, in effect, censored from abroad by levying damages against American Internet service providers or portals.
"We need to be able to determine whether or not we have an obligation to comply," Yahoo attorney Mary Wirth said. "Because if we can't get early word from the court about our compliance obligation, we're in a Catch 22 between choosing censorship or letting fines accrue."
Yahoo hopes the 9th Circuit Court rules the French judgment can’t be collected in the U.S. A lower federal court ruled in 2002 that Yahoo could not be held liable for the judgment, in which a French judge ordered Yahoo to strip Nazi paraphernalia and document auctions from the portal’s auction site—even though Yahoo’s French subsidiary complied with French law and did not show those auctions.
The fine levied against Yahoo is estimated to be at around $15 million and growing by $15,000 per day.
Yahoo had drawn the ire of two French human rights groups, the Union of Jewish Students and the International Anti-Racism and Anti-Semitism League, when they appealed the lower court ruling. A three-judge panel of the 9th Circuit Court then overturned that ruling on grounds the groups had not yet tried collecting the judgment.
Yahoo then appealed to the 9th Circuit Court and asked for the full court to rehear the case, and the court agreed in February to hear it. If Yahoo can clarify its position in the U.S., legal analysts have said, other American ISPs can understand their actual liabilities abroad.
"Who has a right to exercise legal jurisdiction over content that's on the Web?" asked Jeffrey Pryce, a Washington-based international attorney, said to reporters. “Suppose it was Saudi Arabia, Afghanistan or Saudi Arabia. It could get kind of frightening."
The attorney for the two French groups, E. Randol Schoenberg, told reporters the group doesn’t yet intend to try going to U.S. courts to collect the judgment against Yahoo, acknowledging that Yahoo “dramatically limited” Nazi material that can be auctioned from the home U.S. site. And he acknowledged Yahoo’s perspective regarding their free speech rights.
“(T)hey want to know in advance whether they are going to be subject to this judgment,” Schoenberg said. “They want the assurance it's not enforceable in the U.S. because the threat that it could be enforced in the U.S. is chilling their free speech.”
