The
legal implications of the Yahoo! Inc. nazi memorabilia dispute: an interview with Professor
Yves Poullet
«
Judges
and the Sate will only exceptionally intervene when constitutional principles
and the respect of freedom of expression are endangered »
Yves
Poullet, Dean of the Law Faculty, Director of the Centre de Recherches
Informatique et Droit des Facultés Universitaires Notre-Dame de la Paix de
Namur
Email
: yves.poullet@fundp.ac.be
http://www.droit.fundp.ac.be/crid.htm
Professor
Yves Poullet agreed to participate in our consultation by writing the
following article:
The
Yahoo! Inc. case or the revenge of the law on the technology?
1.
Yahoo’s arguments
The
November 20th ruling, pronounced by the first vice president of the
Tribunal de grande instance de Paris, confirmed the earlier May 22nd
decision once the conclusions of three independent experts where submitted to
the court. Although the battle seemed to be between the Goliath Yahoo! Inc.,
against an David, an untested French court, technology law in the end reversed
the balance of power.
In
the real world, nobody would have criticised the responsible act of banning
hateful propaganda of Nazi literature. Sovereign States have the right to
their integrity and protect their values in order to maintain freedom and
democracy. As a consequence, it is justifiable to censor Nazism and other
forms of racial hate.
Does
the existence of the Internet jeopardise our ability to protect our
fundamental values? Does the absence of physical national boundaries mean that
the Net’s content cannot adapt itself to national sensibilities?
Yahoo!
Inc.
maintained that selling Nazi objects on the Internet is a form of expression
protected by the First Amendment of the U.S. Constitution. Doesn’t this
protection conflicts with other sovereign jurisdictions? In other words, must
French Law tolerate Nazi web sites juste because the U.S. Constitution says so?
2.
Where technology forces us to think differently: the specifics of the Internet
The
Internet has long been compared to a “vast library” where users just have
the choice to freely browse through any sites they choose. This analogy,
however, is false. Consumer groups have detected numerous fraudulent and
illegal techniques used on the Internet to profile, approach and lure
consumers. These widespread tactics have supported the choice in favor of
the consumer's residence law in the most recent European official
documents.
The
same reasoning prevails in the Yahoo! Inc. case. In his first judgement,
the French judge noted that French citizens were targeted to link onto the
illegal auction sites through a series banners displayed by the French
Internet portal, Yahoo! France. situated in France.
Whatever
the occurrence, Yahoo! Inc. was never passive. Yahoo! Inc.
defended itself by claiming that it is a technically impossible to block
French Internet users from accessing its auction’s page. Before analysing
this argument, the following must be noted:
-
even if their defence were to be received, Yahoo! Inc. infringes public
order by allowing its visitors to use its services to search and link to web
sites that support Nazism and other forums of hatred. As a result, the French
court felt justified in ordering Yahoo! France to post warning signs against
accessing certain foreign web sites that are contrary to French public order.
-
their is some sort of contradiction to admit web user profiling and not being
able to block specific web sites. This apparent contradiction was noticed by
French judge in his second ruling, handed down in March.
3.
Where technology makes law effective
The
question addressed by the appointed panel of experts was quite simple: could Yahoo!
Inc. specifically bloc French citizens only from accessing its auction
page? The panel unanimously reached the following conditions. Although the IP
address permits the localisation of users on the web, only about 80% of the
web user requests are carried out through a local ISP. In consequence, an IP
address can be easily detected from a server and be automatically blocked.
Through
its judgement, the tribunal demonstrated the principal of how technology may
be used to make law effective. Although tribunal’s solution was not able to
filter approximately 20% of targeted users, it does however reflect the truism
that no law is 100% efficient. As a consequence, future technology could one
day be added to enhance efficiency.
Can
Yahoo! Inc. hide behind the extraterritorial argument?
4.
To the new dimension of state sovereignty
Might
the judgement be rejected on the basis that produces extraterritorial effects?
In fact laws that create extraterritorial effects are widespread. Australian
and Singapore law forces the blockage of pedophilia web sites that can hurt
their young citizens. In the United-States, Children’s On-Line Privacy
Protection Act which concerns sites that violate privacy rights of the minors,
grants to public authorities and judges the competence to block the access to
certain websites. Article 25 of the EU Data Protection Directive follows the
same path that restricts the exchange of personal data to non EU members, if a
foreign country does not guaranty an adequate protection.
At
the contrary of the French judgment which orders the U.S. company to take
certain measures, we underline that these different regulations installs
restrictions against local operators and does not addresses severs located in
foreign countries. So, the extraterritorial effects of these regulations is
only indirect.
Sovereign
countries have the privilege to adopt any measures it deems necessary to
protect the best interests of its population. However, as cyberlaw grows to
become relevant in our lives, should the notion of sovereignty need to be re-examined?
Sovereignty is the manifestation of freedom and independence in which the
state is responsible for its citizens. Individuals who are citizens of a State
benefit from the protection of their rights and freedom in consideration with
certain values and limits. These limits and freedom cannot be rejected just
because technology abolishes physical barriers. Sovereignty of the nation’s
integrity must therefore be viewed as a positive obligation that every Sate
must strive for. Values must not be compromised through the toleration of
illegal material available to local citizens from ISP’s originating in
foreign states. The principle of sovereignty does not by default justify
censorship: judges and the Sate will only exceptionally intervene when
constitutional principles and the respect of freedom of expression are
endangered.
5.
The sequel of the Yahoo! Inc. case: is law still necessary?
Almost
a month after the decision of the French court, Yahoo! Inc. adopted a
new strategy and announced that it would initiate its own measures to block
access to the controversial auction site. Like Yahoo! Inc. A few months
before E-bay had
also modified its position on the matter, not because of the French
decision, but mainly from pressure of American Jewish lobby groups.
In
fact, it was media pressure and now the obligation to take into account the
foreign law that gave way to Yahoo! Inc.’s policy changes. The
apparent minimal influence of foreign law in this case appears to be
disturbing and borders being dangerous. What will happen if public opinion
decides that freedom of expression does not rime with pornography?
Auto-regulation or auto-censorship is more dangerous then the decision made by
judges on the basis of reflection, doctrine and jurisprudence, paying more
attentions to achieve a legitimate balance between freedom of expression and
certain other essential values
Interest
surrounding the implications of the Yahoo! Inc. case continues to widen.
Yahoo! Inc. announced that it will install filtering, scanning devices
along with a new system called "hot lines" that can identify a web
site displaying images or symbols that disseminate Nazi ideology. Although Yahoo!
Inc. has taken noble steps in dissociating its customers from online
hatred, such actions may just demonstrate that ISPs are accountable to the
management of their system. This does not mean that the filtering system must
be applied to every web site that could be judged illegal. However, when
certain content is indeed thought to be illegal, then detection should be
permitted in order to ensure a rapid removal or inaccessibility.
6.
Law, technology, auto regulation, what to conclude from the Yahoo! Inc. case?
1.
Cyberspace is not lawless. It functions within national law and has to respect
the values adopted through the exercice of this national sovereignty.
2.
State may use technology as an ally to ensure the efficiency of judicial
decisions set out to protect its sovereignty. The total efficiency of the law
in cyberspace should not be expected due to the Law’s inherent nature.
3.
The existence of technology that can filter and identify illegal web sites
proves the accountability of ISPs. It is in their duty to ensure that local
law respects the constitutional integrity of the host country.
In
the end, auto-regulation has its limits in the realm of public order. The
government must not hesitate to install certain effective methods of
censorship should it deem necessary and must not rely on ISP to conform to the
law strictly from fear of public opinion. In consequence, the State must adopt
a legal mechanism for future cases similar to Yahoo!
Inc
Professor
Yves Poullet statements as collected by Lionel Thoumyre
Translated into English by Charles Perrault
