Article R645-1 of the French Penal Code, like similar provisions in many European statute books, makes it unlawful to display or sell "Nazi merchandise," or items "that may be construed as an apology for Nazism, or contesting the reality of Nazi crimes." Yahoo's auction site, yahoo.auctions.com, has such items on display.
Yahoo, of course, is an American company; its Web servers, headquarters, and virtually all its physical assets are in the United States. At the same time, it's "displaying" merchandise "in France"; French users could, and did, easily find their way to Yahoo's auction site to view (and purchase, if they wished) the offending material.
The question is a simple one: Must Yahoo comply with French law?
A French court thinks so. A watchdog group, the League Against Racism and Anti-Semitism, sued Yahoo in France and won. Because Yahoo's Web site was accessible to French citizens within France's borders, it was subject to the laws of France, and because it was deemed to be violating those laws, the court ordered Yahoo to take down the offending material, figure out some way to block access to it by French users, or face a fine of more than $13,000 per day.
It was a truly dreadful precedent for the development of Internet law--not because of anything having to do with Yahoo, or France's anti-Nazi legislation, but because of the principle on which it was based: The mere accessibility of an Internet site within France equals an obligation to obey French law. In a world in which Web sites anywhere are accessible everywhere, in which yahoo.auctions.com is as accessible to residents of France as it is to residents of Fiji, or Frankfurt, Germany, or Frankfort, Ky., that's a formula for chaos and conflict. If France has the right to impose its law on accessible Internet conduct then, by extension, so do all countries.
The free flow of information on the Internet would be gravely threatened by the assertion of this extraterritorial principle. To endorse France's right to impose obligations on Yahoo's auction site is to endorse the right of individual countries to impose their particular obligations on all participants in Internet commerce, wherever they may be located. The compliance burden on Internet participants would be immense, and the Internet's promise as a tool for linking the world's peoples together would be damaged, perhaps irreparably.
In November, U.S. District Judge Jeremy Fogel in San Jose, Calif., saw things differently. Notwithstanding France's sovereign authority to make and enforce its law against individuals and companies within French territory, and the "great deference" owed to legal judgments of sister nations, the court wouldn't assist in enforcing the French judgment against Yahoo. Free speech would be "seriously jeopardized" by the enforcement of a judgment granted under "standards deemed appropriate in another country but antithetical" to constitutional values, Judge Fogel wrote.
We'll see if a U.S. judge is equally open-minded and forward-thinking when presented with the same situation in reverse, when an American plaintiff or law-enforcement officials seek to impose American law on, say, an offshore gambling site. But for now, good sense has triumphed. Rest assured, though, that this isn't the last you'll hear about this problem.
This is just an early salvo in what will become a long and complex battle, arising from two incontrovertible facts about the world: First, that countries have different, sometimes very different, views about what is and isn't lawful conduct. And second, that it has become trivially easy for people in one country to interact, commercially and otherwise, with people and institutions elsewhere. Collisions between different legal systems will soon be the norm, not the exception, and how those collisions are resolved will do much to determine how the new global marketplace develops.
David Post is a Temple University law professor and senior fellow at the National Center for Technology and Law at the George Mason University School of Law. Reach him at [email protected]. Bradford C. Brown is chairman of the National Center for Technology and Law at the George Mason University School of Law. Reach him at [email protected].