Cybercrime

Computer-related specific acts

• Acts involving Racism/xenophobia
• Incitement to discrimination/hostility/violence

UEJF and Licra v Yahoo! Inc and Yahoo France

UNODC No.:
FRA001R

Fact Summary

The case at hand is a civil suit concerning the responsibility of internet corporations for content posted by users on their websites. The defendants were Yahoo!, Inc (hereinafter “Yahoo! US”), a US corporation incorporated under the laws of Delaware and its affiliate, Société Yahoo France (hereinafter “Yahoo! France”), incorporated under the laws of France, (hereinafter both referred to as “Yahoo!”) Yahoo US! offers online services accessible by internet users worldwide. Yahoo! France offers such services in the French language targeting local users. Among the services provided, Yahoo! runs an auction website where users can post items for sale and other users worldwide can place bids. Yahoo! warns users that they must abide by its rules and refrain from selling items and entering into prohibited transactions under the applicable domestic law.

UEJF and LICRA, two French non-profit organizations fighting anti-Semitism (hereinafter the “Plaintiffs”), filed a civil complaint against Yahoo! US and Yahoo! France before the Tribunal de Grande Instance de Paris. UEJF and LICRA  alleged that Yahoo! allowed the posting of illegal items, including Nazi paraphernalia and Third Reich memorabilia, in violation of Article R645-1 of the French Criminal Code. This provision prohibits to “wear or exhibit” in public uniforms, insignias and emblems which “recall those used” by (i) an organisation declared illegal in application of Art. 9 of the Nuremberg Charter, or (ii) a person found guilty of crimes against humanity.

The High Court of Paris, in its judgment of 22 May 2000, upheld the claim filed by UEJF and LICRA. The Court ordered Yahoo! US to take all the measures necessary to dissuade and prevent access to auctions for Nazi memorabilia and content supporting Nazism. The court ordered Yahoo! France to warn users that, should Yahoo!’s search results include content prohibited under French law, they shall refrain from accessing such content to avoid incurring legal sanctions.

Yahoo! US and Yahoo! France challenged the competence of the High Court of Paris and, in any case, requested the court to reconsider its decision since compliance would be technologically impossible. However, on November 20, 2000, the High Court of Paris, after gathering expert opinions, reasserted its competence, confirmed its previous decision and established a 3-month deadline for compliance. As a result, Yahoo! amended its auction guidelines and warned its users that the sale of items prohibited under Article R645-1 of the French Criminal Code is not allowed.

Commentary and Significant Features

Information and communication technologies pose new challenges to the definition of freedom of expression and to what is to be considered as protected speech. Freedom of expression is a cornerstone of democratic legal systems and is protected under international human rights law (Article 19 of the International Covenant on Civil and Political Rights). However, such right is not an unlimited one as governments impose restrictions aimed at protecting other fundamental rights. In particular, freedom of expression is commonly restricted in order to protect public security and prevent hate speech or obscenity. The internet allows users to share opinions and comments publicly with unprecedented ease. Legislative bodies and courts all around the world shall determine the extent to which internet posting can be prejudicial to protected fundamental rights and, thus, illegal.

The need for a balance between freedom of expression and prohibition of illegal speech has been addressed in different ways under different jurisdictions. In this landmark case, the French court opted for the protection against the threats stemming from Nazi propaganda. This interpretation is in line with the European tendency to limit freedom of speech when other fundamental rights are at stake. On the other hand, in other legal systems, such as the US, freedom of speech is afforded a higher degree of protection with very limited exceptions.

After the judgment of the High Court of Paris, Yahoo! US filed a complaint against  UEJF and LICRA before the US District Court for the Northern District of California in San Jose, claiming that the French decision was in breach of the First Amendment to the American Constitution and, thus, not enforceable in the US. The District Court upheld the claim. However, the decision was reversed by the Court of Appeals in 2004, which found that the District Court lacks jurisdiction over UEJF and LICRA (see Yahoo!, Inc v LICRA (US Court of Appeals for the Ninth circuit, Case no. 01-17424).

Cross Cutting

Liability

... as involves

• legal persons (corporations)

Application of the Convention

Details

• occurred across one (or more) international borders (transnationally)

Involved Countries

France

United States of America

Procedural Information

Legal System:
Civil Law
Latest Court Ruling:
High Court
Type of Proceeding:
Civil
 
 
Proceeding #1:
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