<b>Analysis:</b> Courts Still Not Sure How to Handle Internet

[Editor's Note: The following analysis of the Yahoo! case comes from an entry on Internet Law & Strategy Board of editors member Michael Geist's blawg. Michael is the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. The full blawg entry can be found at www.michaelgeist.ca/index.php?option=com_content&task=view&id=1083. Geist can be reached at [email protected].]

Nearly 6 years ago, two French anti-racism groups launched the Internet lawsuit heard round the world. They filed suit against Internet giant Yahoo!, seeking a court order to compel the company to block French residents' access to postings displaying Nazi memorabilia. While Yahoo! already blocked access to content on its local French site (yahoo.fr), the groups' suit targeted the company' s primary site based in the United States (yahoo.com).

The case attracted immediate interest since it struck at the heart of one of the Internet' s most challenging issues ' how to bring the seemingly borderless Internet to a bordered world.

After court cases in both France and the United States, accompanied by multiple appeals, the dispute may finally have reached its conclusion last month when a U.S. appellate court issued a much-anticipated decision ' one that left more questions than answers.

The decision can be assessed from three perspectives. From a purely legal point of view, the court determined that the free speech issues were not 'ripe' for review, meaning that Yahoo! failed to persuade the court that the French court order had limited its First Amendment rights. It reached that conclusion in large measure because Yahoo! had independently removed much of the offending content, suggesting that the company was not being forced to block legal materials.

From a jurisdictional perspective, the case signals an expansion of the standard under which U.S. courts will assert jurisdiction over disputes that arise in other countries. While the majority of the court expressed reluctance to export U.S. free speech protections, it determined that it could assert jurisdiction over the case despite minimal connections to the U.S. (the contacts were limited to a cease and desist letter demanding that Yahoo! comply with French law, the formal delivery of the lawsuit, and the mere existence of the French court orders). This determination brought a stinging dissent, which was troubled by the ramifications of U.S. courts interjecting into foreign disputes.

While the legal and jurisdictional implications are important, the Internet considerations highlight the complexity associated with the online world and geographic borders. For the majority of the court, the combination of the expert panel evidence and the decision by the French court to limit its restrictions to French users yielded the view that offline geographic borders can be applied to the Internet.

The dissenting judges presented a much different view of the Internet, concluding that the impact of the order could not be confined solely to France. Moreover, they were skeptical of the expert panel's evidence, deriding it as being 'replete with hearsay, technological assumptions and disclaimers.'

Ironically, the real problem with the expert evidence is not its degree of accuracy, but rather that it is now woefully out-of-date. There have been significant advances in Internet geolocation technologies, such that Internet sites can identify with increasing accuracy the offline location of their online users.

The Yahoo! France case resulted in nearly 6 years of litigation, numerous legal briefs, and much hand wringing from the Internet community. Despite its notoriety, it would appear that the courts remains as conflicted as ever as they seek to reconcile the challenges of law, borders and the Internet.

[Editor's Note: The following analysis of the Yahoo! case comes from an entry on Internet Law & Strategy Board of editors member Michael Geist's blawg. Michael is the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. The full blawg entry can be found at www.michaelgeist.ca/index.php?option=com_content&task=view&id=1083. Geist can be reached at [email protected].]

Nearly 6 years ago, two French anti-racism groups launched the Internet lawsuit heard round the world. They filed suit against Internet giant Yahoo!, seeking a court order to compel the company to block French residents' access to postings displaying Nazi memorabilia. While Yahoo! already blocked access to content on its local French site (yahoo.fr), the groups' suit targeted the company' s primary site based in the United States (yahoo.com).

The case attracted immediate interest since it struck at the heart of one of the Internet' s most challenging issues ' how to bring the seemingly borderless Internet to a bordered world.

After court cases in both France and the United States, accompanied by multiple appeals, the dispute may finally have reached its conclusion last month when a U.S. appellate court issued a much-anticipated decision ' one that left more questions than answers.

The decision can be assessed from three perspectives. From a purely legal point of view, the court determined that the free speech issues were not 'ripe' for review, meaning that Yahoo! failed to persuade the court that the French court order had limited its First Amendment rights. It reached that conclusion in large measure because Yahoo! had independently removed much of the offending content, suggesting that the company was not being forced to block legal materials.

From a jurisdictional perspective, the case signals an expansion of the standard under which U.S. courts will assert jurisdiction over disputes that arise in other countries. While the majority of the court expressed reluctance to export U.S. free speech protections, it determined that it could assert jurisdiction over the case despite minimal connections to the U.S. (the contacts were limited to a cease and desist letter demanding that Yahoo! comply with French law, the formal delivery of the lawsuit, and the mere existence of the French court orders). This determination brought a stinging dissent, which was troubled by the ramifications of U.S. courts interjecting into foreign disputes.

While the legal and jurisdictional implications are important, the Internet considerations highlight the complexity associated with the online world and geographic borders. For the majority of the court, the combination of the expert panel evidence and the decision by the French court to limit its restrictions to French users yielded the view that offline geographic borders can be applied to the Internet.

The dissenting judges presented a much different view of the Internet, concluding that the impact of the order could not be confined solely to France. Moreover, they were skeptical of the expert panel's evidence, deriding it as being 'replete with hearsay, technological assumptions and disclaimers.'

Ironically, the real problem with the expert evidence is not its degree of accuracy, but rather that it is now woefully out-of-date. There have been significant advances in Internet geolocation technologies, such that Internet sites can identify with increasing accuracy the offline location of their online users.

The Yahoo! France case resulted in nearly 6 years of litigation, numerous legal briefs, and much hand wringing from the Internet community. Despite its notoriety, it would appear that the courts remains as conflicted as ever as they seek to reconcile the challenges of law, borders and the Internet.