Yahoo Nazi case tests bounds of online free speech

Civil liberties groups continued to battle this week against a case that they say could potentially curtail free speech on the Net by imposing regional restrictions on global Internet content.

The Center for Democracy and Technology (CDT), the American Civil Liberties Union (ACLU) and a handful of other rights organizations filed a friend-of-the-court brief Monday, asking a California court to deny an appeal in a two-year-old case between Internet powerhouse Yahoo Inc. and two French non-profit groups dedicated to eliminating anti-Semitism.

The International League Against Racism and Anti-Semitism and the Union of French Jewish Students originally took the Santa Clara, Calif., company to court in France, asking that the Internet behemoth be restricted from letting French citizens bid on Nazi memorabilia being auctioned on Web sites that the company hosts. In their case, the groups cited a French law that makes it illegal to exhibit or sell objects with racist overtones.

In November of 2000, the French court ordered Yahoo to prevent local users from linking to Web sites with Nazi memorabilia. Yahoo then brought the case to its home state, asking the U.S. District Court for the District of Northern California in San Jose, Calif., for a summary judgment against the order. Last November the court granted Yahoo the judgment, claiming that the French had no grounds for regulating constitutionally protected free speech.

Shortly after the court’s verdict, the French parties filed an appeal on technical grounds, claiming that the California court did not have jurisdiction over case.

John Morris, staff counsel for the CDT, called the plaintiffs’ claim that a French court could address a U.S.-based company but that a U.S. court couldn’t get involved in the situation “extreme.”

“Besides, their appeals papers are absolutely silent on the substantive ruling,” Morris said, referring to the California court’s finding that Yahoo was protected under First Amendment free speech rights.

The case is being lodged against Yahoo’s U.S. subsidiary, since the company’s French division, and the local version of the site already complies with local French law, Morris explained. Therefore, the Constitution’s free speech rights should wholly protect the U.S. division, he said.

Civil liberties groups fear that it the appeal is won, the case will set a precedent that allows for local laws to stifle global online speech.

“To open the door to foreign restrictions on U.S. speakers [by] even the slightest crack would allow numerous restrictions on speech that would never be permitted if initiated in this country and would undermine First Amendment protections to Internet speech,” the groups wrote in their friend-of-the-court brief.

The suit is just one of a recent spate of jurisdictional disputes over online content. The California Supreme Court, for example, is currently pondering a case in which an Indiana resident was sued in California for publishing code on how to circumvent DVD (digital versatile disc) encryption online. The defendant, Matthew Pavlovich, was sued by the DVD Copy Control Association Inc. (DVD CCA) for violating California state law governing trade secrets. Although Pavlovich was a student in Indiana when he published the code, the DVD CCA said that it filed suit in California because that is where the entertainment industry, which has the most to lose from the circumvention of DVD encryption, is based.

These and similar cases are testing the Net’s status as a global free speech medium.

Although the Yahoo case will not be decided upon for some time, as the court is still in the process of collecting briefs, free speech activists are watching the case closely in an effort to determine which way the tide is heading.

“This case is very, very important,” said Morris. “If what the French court did was upheld, U.S. companies would have to look to comply to the censorship laws of 200 countries around the world. It would be an untenable situation.”

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Jim Love, Chief Content Officer, IT World Canada

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