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    New Yahoo Decision Raises Old Questions

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    Monday January 23, 2006
    Article appeared in the Toronto Star on January 23, 2006 as Borderless Internet Continues to Confound Judges
    Appeared on the BBC on January 24, 2006 as The Law, Borders, and the Internet

    Nearly six years ago, two French anti-racism groups launched the Internet lawsuit heard round the world.  They filed suit against Internet giant Yahoo!, seeking a court order to compel the company to block French residents' access to postings displaying Nazi memorabilia.  While Yahoo! already blocked access to content on its local French site (yahoo.fr), the groups' suit targeted the company' s primary site based in the United States (yahoo.com).

    The case attracted immediate interest since it struck at the heart of one of the Internet' s most challenging issues – how to bring the seemingly borderless Internet to a bordered world.  

    After court cases in both France and the United States, accompanied by multiple appeals, the dispute may finally have reached its conclusion earlier this month when a U.S. appellate court issued a much-anticipated decision -- one that left more questions than answers.

    The initial French case concluded several years ago when a judge sided with the anti-racism groups and ordered Yahoo! to do what it reasonably could to ensure that French users could not access content that was unlawful in France.  The judge was persuaded at that time that Yahoo! was capable of identifying when French users accessed its site (it provided targeted ads to such users) and that his order would be limited to Yahoo!' s activities in France.  

    To support his opinion, the judge commissioned a three-member expert panel, which included Vint Cerf, one of the Internet' s founders, to advise him on the technological capability of identifying the geographic location of Internet users.  The panel responded that the technology at the time allowed for geographic identification at a 70 – 90 percent accuracy rate.

    Yahoo!, supported by several U.S. civil liberties groups, was highly critical of the decision, arguing that complying with the order would force it to remove content that was  protected under the First Amendment and was therefore lawful.  Rather than appealing the French decision, however, the company chose to let the decision stand and to launch a lawsuit of its own in the U.S. courts instead, seeking an order that the French decision could not be enforced on its home turf.

    Although the French anti-racism groups never indicated an intention to enforce the decision in the U.S., the competing case established the potential for conflicting court decisions on the same issue.  After a lower court judge agreed with Yahoo!, it appeared that the case had reached a judicial stalemate.  

    That changed earlier this month when the 9th Circuit Court of Appeals, a U.S. appellate court, issued a 99-page split decision that asserted jurisdiction over the dispute but declined to provide Yahoo! with its much-desired order.

    The decision can be assessed from three perspectives.  From a purely legal point of view, the court determined that the free speech issues were not “ripe” for review, meaning that Yahoo! failed to persuade the court that the French court order had limited its First Amendment rights.  It reached that conclusion in large measure because Yahoo! had independently removed much of the offending content, suggesting that the company was not being forced to block legal materials.

    From a jurisdictional perspective, the case signals an expansion of the standard under which U.S. courts will assert jurisdiction over disputes that arise in other countries.  While the majority of the court expressed reluctance to export U.S. free speech protections, it determined that it could assert jurisdiction over the case despite minimal connections to the U.S. (the contacts were limited to a cease and desist letter demanding that Yahoo! comply with French law, the formal delivery of the lawsuit, and the mere existence of the French court orders).  This determination brought a stinging dissent, which was troubled by the ramifications of U.S. courts interjecting into foreign disputes.

    While the legal and jurisdictional implications are important, the Internet considerations highlight the complexity associated with the online world and geographic borders.  For the majority of the court, the combination of the expert panel evidence and the decision by the French court to limit its restrictions to French users yielded the view that offline geographic borders can be applied to the Internet.

    The dissenting judges presented a much different view of the Internet, concluding that the impact of the order could not be confined solely to France.  Moreover, they were skeptical of the expert panel' s evidence, deriding it as being “replete with hearsay, technological assumptions and disclaimers.”

    Ironically, the real problem with the expert evidence is not its degree of accuracy, but rather that it is now woefully out-of-date.  There have been significant advances in Internet geolocation technologies, such that Internet sites can identify with increasing accuracy the offline location of their online users.  

    The Yahoo! France case resulted in nearly six years of litigation, numerous legal briefs, and much hand wringing from the Internet community.  Despite its notoriety, it would appear that the courts remains as conflicted as ever as they seek to reconcile the challenges of law, borders and the Internet.

    Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.

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