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Old 10-November-2001, 12:36
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silver silver is offline
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Default Yahoo Court Decision on Nazi Auctions Sets Net Precedent

from computerwire.com
A US District Court judge has set a precedent on the issue of cross-border internet regulation, ruling late Wednesday that Yahoo! Inc is not bound by a French law that prohibits the sale of Nazi memorabilia.

Yahoo welcomed the decision, which is arguably academic since Yahoo Auctions has forbidden its users to sell "hate" related material since January. According to the judge, French courts have no jurisdiction over Sunnyvale, California-based Yahoo.

"Although France has the sovereign right to regulate what speech is permissible in France, the [American] court may not enforce a foreign order that violates the protections of the United States Constitution by chilling protected speech that occurs simultaneously within out borders," Judge Jeremy Fogel said, according to Yahoo.

Yahoo was told by French judge Jean-Jacques Gomez last November that even though Yahoo France, located at Yahoo.fr, did not allow Nazi-related items to be traded over its site, it must bar French users of Yahoo.com from accessing US-based Nazi auctions. The court said it would impose sanctions of the equivalent of $13,000 for every day Yahoo violated the order.

Under French law, the sale of Nazi memorabilia is classified as a hate crime, but the same practice is covered by the US Constitution's First Amendment, which protects freedom of speech. After failing to argue convincingly that it could not filter users based on geography (it is possible to achieve a reasonable degree of accuracy), Yahoo last December asked the US federal court for a declaratory judgment saying its .com site was outside French jurisdiction.

At the time, Yahoo said the court's decision will "affect any internet company doing business anywhere," presumably referring to US-based companies, which now have to worry a lot less about whether their US sites violate foreign laws. Yahoo now blocks the sale of Nazi items on its site as a matter of ethical policy, rather than law.

"Judge Fogel's ruling ensures that content made available on US web sites will be protected by the First Amendment regardless of where that content may be accessed," said Yahoo's senior counsel Mary Catherine Wirth. "It does not need to comply with a patchwork of content restrictions devised by over 200 nations."

The ruling does not, of course, mean that citizens in other countries can get First Amendment privileges merely by hosting in the US. Fogel's ruling sets no precedent outside the US, and speech made outside of America still falls under local rules.

Two years ago in the UK, for example, a criminal court found a businessman liable of breaking the Obscene Publications Act by publishing a web site containing pictures containing pornography and bestiality. The defendant claimed that as the material was hosted by an American ISP, it fell under the jurisdiction of more liberal US porn laws. Southwark Crown Court rejected this defense, saying instead that as the material was uploaded (by the defendant) and downloaded (by the police) in the UK, it could be classified as being "published" in the UK and was subject to UK law.
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