Author translation - Kritisk Juss, No. 1-2/2001 p.

63-67

Translation by author

of

Det jordiske kaos over websider – jurisdiktionsspørgsmål og netcensur

from

Kritisk Juss
[Norwegian Law Journal "Critical Law"]

No. 1-2/2001 page 63-67

Norway
ISSN 0804-7375

© 2001 Kritisk Juss & Henrik Spang-Hanssen

************

The earthly chaos in websites - question of jurisdiction and net-censorship

by

Henrik Spang-Hanssen [FN*]

Citation:

Spang-Hanssen, Henrik, Det jordiske kaos over websider – jurisdiktionsspørgsmål og netcensur, Kritisk
Juss, No. 1-2/2001 p. 63-67, Norway, ISSN 0804-7375.

This paper can be downloaded without charge from the

Social Science Research Network Electronic Paper Collection:
http://ssrn.com/abstract=1092383

© 2001 Henrik Spang-Hanssen

hssph@yahoo.com
www.geocities.com/hssph

Electronic copy available at: http://ssrn.com/abstract=1092383

 Author translation - Kritisk Juss, No. 1-2/2001 p. 63-67

The contents of a website can be read by any person having a computer or mobilphone with Internet access,
unless the first webpage requires a password. Websites being a new media imply previous unknown
international problems, e.g. the question which courts in the world should be allowed to decide a dispute
over a certain website - unless every court in the world should be permitted.

There are no international agreements or treaties dealing with this issue, thus every country and its courts
can freely determine the vital and fundamental political question, where a non-resident can be sued, because
he has made or hosted a website.

France versus Yahoo! Inc. (U.S.)

December 21, 2000 Yahoo Inc.! asked the federal district court in San Jose, California [FN 1], for an
injunction that would hinder the execution of a court decisions of May 22nd and November 20th 2000 from
the Paris Tribunal de Grande Instance, [FN 2] France, which had ordered Californian Yahoo to continuously
to remove all nazistic material from American websites at "www.yahoo.com", [FN 3]because people in
France was able to se the American websites and Frenchmen thus could suffer mentally.

Yahoo! Inc. became subject to penalty of 100.000 Francs per day if it did not comply with the French order
within 3 month.

Yahoos claim in the American court was, that the French court's orders exercise an unreasonable
exterritorial jurisdiction over the operations and content of a U.S.-based webservice belonging to a U.S.
citizen. Amongst other Yahoo further claimed that the French court's decisions violated public policy in
favor of freedom of expression recognized by:

• First Amendment in the U.S. Constitution

• § 230 in 47th Title of the U.S.Code that immunizes Internet Service Providers such as Yahoo from
responsibility and liability for the content of postings by third parties
• Three rules in Human Rights Instruments that France has signed: article 19 of the International
Covenant on Civil and Political Rights, article 10 of the Convention for the Protection of Human
Rights and Fundamental Freedoms, and Article 19 of the Universal Declaration of Human Rights.

The dispute is an excellent example of the chaos that is initiated by the invention of the Internet. American
Yahoo has subsidiaries in twenty countries. Each subsidiary corporation uses the local language on its
websites, which is operated under local laws. France has a law requiring all text on every website that is
intended for Frenchmen has to use the French language. Further, France a law that forbids sale of and
exhibiting nazistic material.

Facts from the case

Yahoo-France removes all nazistic material from its webservice, except e.g. Anne Frank's diary. For
example will searching with words such as "nazi" or derivates hereof not make any hits on Yahoo-France's
websites. However, the problem is that Frenchmen can get access to Yahoo-US by writing
"www.yahoo.com" in a browsers URL address field or click a hyperlink at Yahoo-France's website and
choose the American auctionsite. By searching with words like "nazi" the Frenchman will get many hits
referring to nazistic material and stuff offered for sale by third persons.

Electronic copy available at: http://ssrn.com/abstract=1092383

 Author translation - Kritisk Juss, No. 1-2/2001 p. 63-67

The Yahoo-US website states that Yahoo has made special "International Auctions" sites, e.g. for France.
Similar to most American websites Yahoo-US at the bottom of its website give link to its "Terms of
Service", which points out that the user and Yahoo has agreed to submit to the personal and exclusive
jurisdiction of the courts located within the county of Santa Clara, California. Further, the relationship
between the user and Yahoo shall be governed by the laws of the State of California without regard to its
conflict of law provisions.

Comments

The dispute is an excellent example of the problems that have arisen after local and national computer-
network have been connected to the Internet, which is a international network and build to be borderless,
totally unbound with respect to geography and without any hazards.

In 1995-99 a similar order was issued in Germany to the president of Compu-Serve-Germany. He was by a
local court in Munich [FN 4] sentenced to pay 100.000 DM and two years in jail with suspension, because
the subsidiary corporation of Compu-Serve-US made it possible to access the parent company's website on
which German police had found nazi/child-pornography-photos from websites belonging to some American
NewsGroups. [FN 5] The Appeal Court [FN 6] in Munich acquitted the president and pointed out that he
and the German company had tried to block Germans customers from access to such websites but that there
was no technology available at the time that would have let the company effectively block the questionable
material. [FN 7]

The French decision reflect the point of view that the constructor of a website and the person that make the
website available for the public can be forced to meet in a court located anywhere the website can be
accessed form, that is everywhere on Earth, unless access requires e.g. a password.

The opposite view is used in United States. Firstly, the U.S. has a federal protection-law that immunizes
Internet Service Providers Yahoo from responsibility and liability for the content of postings by third
parties. Secondly, the nearly all American courts will only call an alien website-constructor to meet in a
U.S. court if the non-resident's website's contents has close relations to/is target at that particular U.S. state
where the court is located (and the court discretionary holds, that it is not unreasonable to require the non-
resident to meet in the foreign jurisdiction).

A website-constructor will be able to prevent being called into an American court if he for example on the
site states that the site is not targeting the U.S. In many instances will it be an important fact whether access
to the website require typing a zip- or country-code. However, such admission requirements are easy to
bypass, e.g. a user lie about his location and uses a server placed in a third country as middle-station. [FN 8]

Use of the application "Telnet" makes it possible to "remote control" e-mail communication or uploading of
a website on a foreign server - e.g. on the other site of the globe - different from the one the user is actually
connected to and thus give the other party the wrong impression of where the user is physical located or
living.

In the French case, one of the constructors [FN 9] of the basic Internet-protocols stated, that there does not
exist reliable filters and "if every jurisdiction in the world instated on some form of filtering for its
particular geographic territory, the World Wide Web would stop functioning." [FN 10].

3
 Author translation - Kritisk Juss, No. 1-2/2001 p. 63-67

One can say that in the U.S. the point of view has been that the important thing was to immunize the
Internet Service Providers to secure the users of the Internet have the largest amount of access to the highest
number of websites and international material. Otherwise in Europe, where the aim has been to secure the
consumers have the easiest way to sue in their own country and require use of the users local community's
laws, by requiring that foreign websites reject access to websites which is not fulfilling the laws of the local
community.

Out of consideration for the international society it would be more reasonable that the local community
accepted aliens right to use the international network as they want and in stead locally made certain that the
local community's own citizens locally was prevented from access to websites, which is not in accordance
with that local community's laws.

The U.S. Supreme Court pointed out in a case from 1997 - that with an otherwise opinion fairly easy could
have ended the Internet by requiring the American software industry only to make browsers that divided the
Internet it into parts with each with a special access-code - that the "Internet is an international system" and
rejected to use a "near-community criterion", because this applied to the Internet would mean "that any
communication available to the a nation-wide audience will be judged by the standards of the community
most likely to be offended by the message." [FN 11]

With respect to the Internet national borders is only to be regarded as street-bumps, because the Internet is
constructed to surpass any communication-hazard by redirecting the communication trough other
connections or territories. The original political (and military) main purpose with the Internet was
preventing any communication-traffic or information to be hindered and with this aim is the Internet build.

Above-mentioned Vinton Cerf has suggested making a "resolution to teach our children to think more
deeply about what they see and hear. That, more than any electronic filter, will build a foundation upon
which truth can stand." Further he said he got a little worried if we try to build public policy around it and
noted that filters don't always work." [FN 12]

If different countries chooses to make the intermediates responsible for third parties communication the
result can easy turn out to be that no firm of economic reasons dare to do business in those countries,
whereby those countries citizens is shut out from the world society's network.

One can ask whether it is in the interest of the community that the communications firms shall be
responsible and liable for (private) third persons websites, thus risking going bankruptcy and preventing
other costumers to have access to the international computer networks.

An Updating

On June 7 2001 the federal district court in San Jose rejected to follow a French claim and dismiss Yahoo!
Inc. American case. The court decided to hear the parties' argumentation, which in United States is regarded
as the beginning of deciding question of whether foreign courts shall have influence on American media and
American law. [FN 13].

[Remark: The facts of the Yahoo cases are detailed laid out and dealt thoroughly with in Henrik Spang-Hanssen, Cyberspace &
International Law on Jurisdiction pages 184-188 & 483-503 (DJØf Publishing, 2004 –ISBN 87-574-0890-1) and Henrik Spang-
Hanssen, Public International Computer Network Law Issues Pages 259-280 (DJØF Publishing Copenhagen, 2006 - ISBN 87-574-
1486-6)]
4
 Author translation - Kritisk Juss, No. 1-2/2001 p. 63-67

_______________________________________
FN* Henrik Spang-Hanssen got his Master Degree from Copenhagen University in 1980 and Danish Bar License in
1983. Since May 2000 researcher at Norwegian Research Center for Computers and Law, University of Oslo. Has
written "Cyberspace Jurisdiction in U.S." based on research at Santa Clara and Stanford Universities in California in
1998-99. Research-website: www.geocities.com/hssph.

FN1 No. Coo-21275 in Northern District of California.

FN2 English translation at www.cdt.org-speech-001120yahoofrance.pdf (visited March 16 2001).

FN3 Most companies in the U.S. prefer not to use "U.S." as their top-level domain.

FN4 Amtsgericht München, May1998 [No. 8340 Ds 465 Js 173158/95] www.jura.uni-wuerzburg.de-Lst-sieber-

somm-somm-urteil.pdf (visited March 16 2001).

FN5 At the time the case was brought to court the parent company in U.S. felt it necessary to remove the American
newsgroup's website.

FN6 Landesgericht München, 17. November 1999 www.publex.de-cgi-bin-prt.cgi-Rechtsquellen-Urteile-Cybercrime-

1999crim01.html (visited March 16 2001).

FN7 It might have had some impact on the Appeal Courts decision that Germany meanwhile had passed a Multimedia
Act with the aim to protect online service companies from liability as to content passing their networks.

FN8 "Reply of the consultant Vinton Cerf" quoted in the French decision.

FN9 Chairman of Internet Corporation for Assigned Names and Numbers and previous Stanford University professor,
Vinton Cerf in e-mail of 24/11 2000 to Agence France-Presse. The expert rapport can be downloaded from
www.legalis.net/jnet in the archive for November 2000 as "L'intégralité du rapport des experts [PDF 6.88 Mo]"
(rapportyahoo-6nov00zip).

FN10 While the rapport from the experts in the French Yahoo case was being written the American Federal Appeal
Court for the Third Circuit in June 2000 decided a case in which the court pointed out that "under current technology,
Web-publishers cannot prevent their site's content from entering any geographic community," American Civil
Liberties Union v. Reno, 217 F.3d 162, 167 and 169 (3rd Cir. 2000).

FN11 U.S. Supreme Court in Reno v. American Civil Liberties Union 521 U.S. 844, 877--78 (US 1997).

FN12 In an interview to Upside Today, November 3rd 2000.

FN13 Internet Report June 8 2000 "Judge to Hear Yahoo case of French Nazi Ban" http://daily-
news.yahoo.com/htx/mn/20010608/wr/tech_yahoo_nazi_de_1.html (visited June 11 2001).