LICRA v. Yahoo! - The civil case in France

LICRA complained that Yahoo! were allowing their online auction service to be used for the sale of memorabilia from the Nazi period, contrary to Article R645-1 of the French Criminal Code (Code penal). These facts were not contended during the case.

The defense rested on the fact that these auctions were conducted under the jurisdiction of the United States. It was claimed that there were no technical means to prevent French residents from participating in these auctions, at least without placing the company in financial difficulty and compromising the existence of the internet.

The defendents noted

1. that their servers were located on US territory,
2. that their services were primarily aimed at US residents,
3. that the First Amendment to the United States Constitution guarantees freedom of speech and expression, and that any attempt to enforce a judgement in the United States would fail for unconstitutionality.

As such, they contended that the French court was incompetent to hear the case.

Article R645-1

Article R645-1 of the French Criminal Code prohibits the public display of uniforms, insignias and emblems which "recall those used" by

• an organisation declared illegal in application of Art. 9 of the Nuremberg Statute, or by
• a person found guilty of crimes against humanity as defined by Arts. L211-1 to L212-3 or by the Law n°. 64-1326 of 1964-12-26.

Display is allowed for the purposes of films, theatrical productions and historical exhibitions.

The penalties available are:

• a fine of up to 1500 EUR;
• withdrawal of the right to hold firearms and confiscation of any firearms which are held;
• confiscation of the objects concerned;
• up to 120 hours of community service.

The judgement

An interim judgement of 2000-05-22 confirmed the illegal nature of the sale under French law and appointed experts to advise the court as to what technical measures might be taken to prevent a repeat of the offense. The team of experts reported on 2000-11-06, and the court rendered an injunction against the defendants on 2000-11-10.

Competence of the French court

The court ruled that there were sufficient links with France to give it full jurisdiction to hear the complaint. In particular:

• the auctions of Nazi memorabilia were open to bidders from any country, including France;
• the display of such objects, and the viewing of such objects in France, caused a public nuisance and was forbidden under French criminal law;
• Yahoo! Inc. was aware that French residents used its auction site, as it displayed French-language advertisements on its pages when they were accessed from computers in France.

This last point was also referred to in the injunction against Yahoo! Inc. The court specifically dismissed the claim that the alleged problems of enforcing a judgement were sufficient to nullify its competence.

Societe Yahoo France

Societe Yahoo France had been ordered on 2000-05-22 to warn its users that they may breach French law if they followed links from its site to sites operated by Yahoo! Inc. The court acknowledged that this order had been substantially complied with "in letter and in spirit". It refeused a request from the plaintiffs to order Yahoo France to remove links to the American sites, but reiterated that a warning must be given to users before they activated such links.

Yahoo! Inc.

Yahoo! Inc. had been ordered on 2000-05-22 to take all appropriate measures to deter and prevent access to auctions of Nazi memorabilia on its site by French residents. Yahoo contended that it was impossible to comply with this order.

The report of the court-appointed experts noted that, as of 2000, roughly 70% of French internet users could be identified as such by the use of DNS databases.

The court ruled that Yahoo! Inc. must comply with the original injunction within three months or face a fine of one hundred thousand (100,000) francs (15,244.90 EUR) per day.

This guide is licensed under the GNU Free Documentation License. It uses material from the Wikipedia.