Snapshot #2

A serious threat to free speech on the internet is getting another look-see. It involves a five-year old lawsuit against Yahoo.com by anti-Nazi groups in France.

France's Union of Jewish Students and the International Anti-Racism and Anti-Semitism League sued Sunnyvale, Calif.-based Yahoo in 2000 and won a French court order requiring the company to block Internet surfers in France from auctions selling Nazi memorabilia. French law bars the display or sale of racist material.

Yahoo stripped Nazi memorabilia - including flags emblazoned with swastikas and excerpts from Adolf Hitler's "Mein Kampf" - from its French subsidiary, yahoo.fr. But to the anger of French Jews, Holocaust survivors, their descendants and other activists, Yahoo kept such items on its vastly more popular site, yahoo.com.

That wasn't good enough for the activists, who convinced the French courts that because Yahoo.com, while based in California, was available anywhere in the world via the internet, it was not abiding by the decision.

For failing to take down the offensive items, French courts began levying fines on Yahoo of more than $13,000 per day starting in February 2001. Yahoo theoretically owes more than $5 million today.

Yahoo went to court in the US to get a ruling that the French court order would have a "chilling effect" on all ISPs. In one of the most technologically ignorant, logically vapid decisions imaginable,

District Court Judge Jeremy Fogel of San Jose ruled that if Yahoo wanted to continue selling items on a site that could be accessed around the world, the company had to assume the risk that it could violate laws of other countries and was subject to more lawsuits.

Last summer, the 9th Circuit Court of Appeals reversed, finding Fogel had no authority to hear the case.

Now, however, the court has said it will rehear the arguments before the full 11-judge panel.

Jeffrey Pryce, a lawyer specializing in Internet and international suits in the Washington office of Steptoe & Johnson LLP, emphasized that decisions to revisit cases are rare, suggesting that the new panel of judges may be inclined to rule that Yahoo needn't comply with French laws on its U.S. sites.

That would be a very good thing; the alternative could - no, would - be disastrous for the free flow of information. If ISPs can be held liable for anything they carry that could be considered illegal in any country that has internet access - that is, at least for all practical purposes, anywhere - just what is left?

If, to stay with Yahoo, it can be fined by a French court for content produced in the US because it can be accessed in France, why can't it be fined by a Saudi court for some racy picture or for some of the "adult-themed" Yahoo groups? Why couldn't it be fined by some Chinese court for a news item it carried, accessible in China, that criticized the government in a way China found objectionable? If in order to be on the 'net, ISPs have to for their own financial protection limit themselves to content which is not illegal anywhere in the world, again I ask, just what is left?