Court Agrees to Review French Freedom of Speech Case

February 21, 2005

The United States Ninth Circuit Court located in California recently granted a petition brought by Yahoo! Inc. in a case designed to validate Yahoo’s right to freedom of speech. The case stemmed from a French court order finding Yahoo! liable for content which is legal within the United States but illegal within France.

The content consists of Nazis memorabilia, possession of which is illegal in France. Although the content in question is stripped from the French Yahoo! site, it is accessible to French citizens through the US Yahoo!. In May of 2000, a French court imposed a $13,000 per day fine against Yahoo! because the offending content was accessible to French citizens.

In December of 2000, Yahoo! filed a complaint in California District Court requesting a declaration stating that the orders from the French courts would not be enforceable within the United States. The court agreed with Yahoo!.

That order was later overturned by the Court of Appeals after which a broad array of organizations including authors, publishers, educators, librarians, internet service providers and public interest organizations filed an amicus brief in support of Yahoo!’s position.

The amicus brief stated that “if the panel’s ruling is permitted to stand it will have a broad chilling effect on free expression and e-commerce in the United States. …if a foreign person or entity takes affirmative steps both in a foreign court and in the United States to force a U.S.-based speaker to censor lawful, constitutionally protected speech aimed at U.S. listeners, U.S. courts should and do have jurisdiction to protect the speech and vindicate the First Amendment protections afforded to both speakers and listeners. A foreign court judgment imposing significant daily fines on U.S.-based speech that is perfectly lawful in the U.S. can create a substantial chilling effect on the U.S. speaker.” The full text of the brief is available at: http://www.cdt.org/jurisdiction/20040921amici.pdf.

On February 10th, the Ninth Circuit Court agreed to mark up the case for review by the full panel.

This case is considered an important test of the interpretation of the right to freedom of speech on the Internet. The full court is scheduled to hear arguments in March 2005.