Two cheers for Yahoo!

US court has rejected a French court's attempts to clamp down on internet content - but free speech online is still not guaranteed.

Sandy Starr

Topics Politics

Supporters of free speech breathed a sigh of relief in November 2001, when a landmark international dispute – involving French plaintiffs suing the search engine Yahoo! (1) for content hosted on its US website – seemed to take a turn in Yahoo!’s favour.

The original lawsuit culminated in Yahoo! being ordered by a French court to restrict access to auctions of Nazi memorabilia on its US website (2) – but Yahoo! responded by launching its own court case, in San Jose, California, to challenge the French ruling.

Jeremy Fogel, the federal judge presiding over the California court case, concluded that ‘although France has the sovereign right to regulate what is permissible in France, this court may not enforce a foreign order that violates the protections of the Unites States Constitution by chilling protected speech that occurs simultaneously within our borders’ (3).

The International League Against Racism and Anti-Semitism (LICRA), which initiated the original case in France against Yahoo!’s US site (4), wasn’t happy when the tables were turned. ‘We don’t think the court has jurisdiction over my clients’, said defence lawyer Ronald Katz. ’They have never been in San Jose, they have never even heard of San Jose.’ (5) The traditional English expression ‘pot calling the kettle black’ comes to mind.

It was LICRA’s original lawsuit that set a precedent for extending the international jurisdiction of a national court. But then, it also could be argued that neither of the rulings in the two court cases makes for good law – in the sense that any such challenge to a court’s right to determine the law of the land would traditionally be considered absurd. The legality of the dispute is tangled, but it is safe to say that Yahoo!’s victory in the San Jose case is at least of symbolic importance as a victory for free speech.

The original French ruling set a precedent for holding the owners of websites responsible for their website content under the law of any country where that content can be accessed – in other words, every country where an internet connection exists. The internet’s international character poses a challenge to regulators, and the regulators’ response is to seek a lowest-common-denominator standard for free speech online, dictated by whatever country has the strictest laws.

This trend was anticipated by the legal commentator Lawrence Lessig in his 1999 book Code and Other Laws of Cyberspace, and was later taken up by the sociologist Manuel Castells in his book The Internet Galaxy (6). Recently, The Economist concluded that ‘the internet…was wild for a while, but policemen always show up eventually’ (7). In this sense, the French ruling against Yahoo! had a ring of inevitability to it – given a medium that transcends national barriers, somebody was always going to try it on with this kind of lawsuit.

Fortunately, Americans are still passionate enough about their constitutional liberties to buck the trend. Barry Steinhardt, associate director of the American Civil Liberties Union (ACLU) (8), argues that ‘only the most bland and homogenised speech could possibly comply with…hundreds of international laws’.

There are bound to be further attempts to restrict free speech online internationally. The Yahoo! case contrasted a stringent French law, which outlaws the display or sale of items that ‘incite racism’, with the core constitutional freedoms enjoyed in the USA. Future international cases, where the defendants hail from less liberal countries and do not have the benefit of a constitution, might not have such a favourable outcome.

Neither do court victories such as Yahoo!’s guard against the dangers of self-censorship, which takes place outside of the law. Imagine if an international dispute arose around the content of a website in the UK, where the Internet Watch Foundation (10) regularly removes internet content without recourse to a court of law, by recommending to Internet Service Providers (ISPs) that they voluntarily remove contentious material. The courts provide scant protection from censorship when the censor is not accountable to the courts.

Yahoo! is itself guilty of this kind of self-censorship. Prior to the original French lawsuit, Yahoo! had actually opened itself up to accountability by electing to remove ‘hate sites’ from its listings for PR reasons (see Defending the indefensible online).

Neither did it help that after that initial lawsuit, Yahoo! took the schizophrenic step of complying with the French ruling, voluntarily using special software to bar the auction of objectionable items, even as it challenged the French ruling in court. ‘It’s one thing to do something voluntarily, but it’s another to be ordered to do something’, said a Yahoo! lawyer, failing to see that censorship and self-censorship have consequences in common (11). Self-censorship of this sort legitimises censorship proper, by creating a culture of regulation – and by suggesting (falsely) that hosts, publishers and editors of websites should take responsibility for what users choose to post there, be it an auction item or a piece of objectionable speech.

The ACLU responded to the recent San Jose ruling with a jubilant press release, cheekily headlined ‘US court says “non, merci” to French government’s attempt to censor Yahoo! content’ (12). I am equally glad of the case’s outcome, but prefer to say ‘Two cheers for Yahoo!’.

Sandy Starr has consulted and written on internet regulation for the Organisation for Security and Cooperation in Europe, and for the European Commission research project RightsWatch. He is a contributor to Spreading the Word on the Internet: Sixteen Answers to Four Questions, Organisation for Security and Cooperation in Europe, 2003 (download this book (.pdf 576 KB)); From Quill to Cursor: Freedom of the Media in the Digital Era, Organisation for Security and Cooperation in Europe, 2003 (download this book (.pdf 399 KB)); and The Internet: Brave New World?, Hodder Murray, 2002 (buy this book from Amazon (UK) or Amazon (USA)).

Read on:

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spiked-issue: Free speech

(1) See the Yahoo! US website

(2) For a commentary on this court case, see Defending the indefensible online by Sandy Starr

(3) Court says France can’t censor Yahoo! site, New York Times, 9 November 2001

(4) See the LICRA website

(5) Court says France can’t censor Yahoo! site, New York Times, 9 November 2001

(6) See Stargazing Sociologist by Sandy Starr

(7) ‘The internet’s new borders’, The Economist, 9 August 2001

(8) See the ACLU website

(9) In novel case, US court says ‘non, merci’ to french government’s attempt to censor Yahoo! content, ACLU, 8 November 2001

(10) See the Internet Watch Foundation website

(11) Yahoo! bans Nazi sales, BBC News Online, 3 January 2001

(12) In novel case, US court says ‘non, merci’ to french government’s attempt to censor Yahoo! content, ACLU, 8 November 2001

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Topics Politics


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