Of Yahoos and Dilemmas

I. INTRODUCTION In the spring of 2000, two French non-profit associations1 dedicated to fighting anti-Semitism attacked Yahoo! Inc. ("Yahoo") before the French courts for exhibiting images of Nazi symbols on its websites, as well as links to revisionist and anti-Semitic sites.2 After losing a challenge over the French court's jurisdiction, Yahoo argued that a significant filtering system would be prohibitively expensive. But relying on a report compiled by a panel of internationally renowned experts which showed that a filtering system with an accuracy rate of about 70 percent could be achieved without incurring unreasonable costs, the French judge gave Yahoo until February 2001 to implement measures to close access from French territory to the disputed pages.3 In the meantime, Yahoo announced that it would comply with the French court's order and did not appeal.4 However, in 2000, Yahoo obtained a declaratory judgment from the District Court of Northern Californian that the French court's IMAGE FORMULA6 order was without effect in the United States since its enforcement would violate Yahoo's First Amendment right of free speech. The French associations have filed an appeal.6 I will argue that the decision of the French court was based on a doubtful foundation, both in terms of applicable rules of French private international law and in terms of public international law. My ultimate purpose is to treat the Yahoo affair as a case of the prisoner's dilemma to illustrate how the approach adopted by the French court necessarily led to a sub-optimal resolution of the matter and to suggest, accordingly, that the approach should not be replicated elsewhere. II. THE YAHOO CASE IN FRENCH PRIVATE INTERNATIONAL LAW In French private international law, a court approaches a case with external elements ("elements d'extraneite") by first determining that it has jurisdiction over the events and persons before it. In his order of May 22, 2000, the French judge held that allowing the display of objects in France for sale by an internaut established in France is a fault on French territory.7 Additionally, the Court made clear that it was acting pursuant to articles 808 and 809 of the New Code of Civil Procedure to bring about the cessation of "manifestly illicit nuisances"8 consisting of "an offence against the collective memory of the country,"9 such as might be assimilated with a wanton infliction of suffering sanctioned by an action in tort grounded in article 1382(10) or 1383(11) of the Civil Code. Because the harm occurred in France, the Court held itself to be competent to hear the dispute pursuant to article 46 of the New Code of Civil Procedure.12 The Yahoo case thus involves conflicts between legislative jurisdiction (or national legislative competence) and personal jurisdiction (or judicial competence). IMAGE FORMULA10 A. THE CONFLICT IN APPLICABLE LAWS 1. The Rulings of the French Court and the US District Court French rules, whether defined by judges13 or by academics,14 state that private international torts are governed by the lex loci delicti. Insofar as article 3 paragraph 1 of the Civil Code provides that laws of police and security apply to all those living in the territory, the outcome of the Yahoo case before the French court turns upon the question of whether Yahoo's conduct occurred in France. If the Court decides that such conduct did occur in France, then Yahoo would be clearly liable. The fact that Yahoo did not intend the offending images to be accessible in France might save Yahoo from criminal liability in France, but it would afford no shield against a civil action. Under French criminal law, acts committed outside of France by a non-French citizen, which in his home country would not be a violation of its local criminal law, may not be prosecuted before the French courts unless the acts involve crimes against humanity or certain special crimes, such as false declarations by foreigners in foreign consulates or acts against the state (for example, espionage or terrorism). …