vs.
YAHOO! Inc.
and YAHOO FRANCE
ORDER OF NOVEMBER 20, 2000 BY THE SUPERIOR COURT OF PARIS
Unofficial English translation
This page is intended to encourage the exchange of ideas about the legal issues arising in connection with the facts of this case.
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Please no reproductions without prior permission.
You are also invited to consult:
- a webliography prepared by Daniel Laprès of links to sites containing information related to these issues, and
- the text of the order of the French court on November 20, 2000 in French
- the text in French and in English translation of the order of August 11, 2000 in this matter.
- the text in
French and in
English translation of the order of May 22, 2000
in this matter.
SUPERIOR COURT OF PARIS
ORDER IN SUMMARY PROCEEDINGS
Rendered on November 20, 2000
By Judge Jean-Jacques
GOMEZ, First Deputy Chief Justice of the Superior Court of Paris, rendered
in public at the hearing held in summary proceedings, by delegation from
the Chief Justice,
Assisted by Sylvaine LE STRAT,
Clerk of the Court.
PLAINTIFFS
LIGUE CONTRE LA RACISME ET L'ANTISÉMITISME - LICRA, represented by its President Mr. Patrick GAUBERT
42 rue du Louvre
75002 PARIS
Represented by Maître
Marc Levy, barrister before the Bar of Paris, P 0119
The association UNION DES ETUDIANTS JUIFS DE FRANCE (UEJF), acting through its President Mr. Ygal Le Harra,
27ter avenue Löwendal
75015 PARIS
Represented by Maître
Stéphane Lilti, barrister before the Bar of Paris, C - 1133
DEFENDANTS
Yahoo! Inc.
3420 Central Expressway SANT-CLARA
California 95051
United States of America
Represented by Maître
Christophe Pecnard, barrister before the bar of Paris - L 0237
Société Yahoo France
8 rue du Sentier
75002 PARIS
represented by Maître
Isabelle Camus, barrister before the Bar of Paris - L 0237
Voluntary intervenor:
Le Mouvement contre le Racisme et pour l'Amitié entre les Peuples - MRAP
89 rue Oberkampf
75011 PARIS
represented by Maître
Didier SEBAN, barrister before the bar of Paris - E0057
Present:
Mr. Public Prosecutor before the Superior Court of Paris
4 boulevard du Palais
75055 Paris
represented by Mr. Bernard
FOS, Substitute, and at the hearing of the case, by Mr. Pierre DILLANGE,
First Substitute,
We, the Chief Justice,
In the light of our order
of May 22, 2000 to which we make expressly make reference and according
to which we ordered
1/ Yahoo Inc. to take all
measures such as would dissuade and render impossible all consultations
on yahoo.com of the service of auctioning of Nazi objects as well as any
other site or service which constitute an apology of nazism or which contest
the nazi crimes;
2/ and to Yahoo France to
issue to all internauts, even before the latter were to use a link making
it possible to pursue the search on yahoo.com a message informing such
internauts of the risks to which they would be exposed if they pursued
their search on such sites;
3/ the pursuit of the present
proceedings in order to enable Yahoo Inc to submit for discussion by the
parties the measures which it intends to take to end the nuisance and harm
suffered as well as to prevent any future nuisances;
In the light of our order
of August 11, 2000 included herein by reference as regards the facts and
the arguments and claims of the parties;
In the light of the arguments
presented by LICRA and UEJE, MRAP and reiterated at the hearing of November
6, 2000, which sought the objectives already presented in our priori order;
In the light of the arguments
developed in their defense by Yahoo France and by Yahoo Inc. and which
make the same claims as those presented in our prior order;
In the light of the report
of the experts Wallon, Vinton Cerf and Laurie;
In the light of the memoranda
submitted at the hearing and to which reference is expressly made;
After hearing the Prosecutor's
oral arguments;
In the light of the documents
submitted in evidence;
After having taking the oath
of expert of Mr. Vinton Cerf, an expert whose name is not included on any
list, Mr. Nortek, expert enrolled on a list but whose intervention in this
instance is to translate the English in conjunction with Mrs. Kinder, expert
enrolled on a list of experts in such matters;
As regards the claims against
Yahoo Inc.
Whereas Yahoo Inc. argues:
- our court is not competent
to hear this dispute;
- there is no way technically
to satisfy the terms of the order of May 22, 2000;
- were such means to exist,
their implementation would entail such an increase in costs for the company,
that it might even put its existence in jeopardy and would in some way
compromise the existence of the internet network, a space of freedom; which
ill accommodates attempts at control and restrictions on access;
Whereas in support of such
arguments of incompetence, reiterated for the third time, Yahoo Inc. argues
that:
- its services are destined
essentially to internauts located on the territory of the United States
of America;
- its servers are located
on the same territory;
- a coercitive measure against
it could not be applied in the United States because this would contravene
the first amendment of the Constitution of the United States which guarantees
to all citizens freedom of speech and of expression;
Whereas, while it may be
accurate that the site "Yahoo Auctions" in general is intended principally
to internauts based in the United States given the nature of the objects
put on sale, to the methods of payment provided, to the terms of delivery,
to the language and to the currency used, the same are not true of the
sites auctioning objects representing symbols of the nazi ideology which
might interest and are accessible to any person who wishes to go to them,
including French people;
Whereas, moreover, and as
has already been ruled, the mere visualization in France of such objects
constitutes a violation of article R-6456 of the Penal Code and therefore
constitutes a nuisance to internal public order;
Whereas moreover, such visualization
obviously causes grief in France to the plaintiff associations who are
justified in seeking its cessation and reparation;
Whereas also, Yahoo says
that it aims at a French audience since in response to a connection to
its auction site from a computer located in France it responds by dispatching
advertising banners in French;
Therefore the links of attachment
in this case with France are sufficiently established, such as to make
our court perfectly competent to hear the claim;
That the eventual difficulties
of execution of our decision on the territory of the United States, invoked
by Yahoo Inc. cannot of themselves justify in and of themselves a preliminary
objection based on lack of competence of the court;
That this argument will therefore
be rejected;
Whereas, with respect to
the argument developed by Yahoo and which is based on the impossibility
of implementing the technical means such as would satisfy the terms of
the order of May 22, 2000, it is opportune first to cite the conclusions
of the panel of experts which appear on pages 62 to 76 of their report;
"Opinion of the experts
Preamble
The undersigned experts wish
to emphasize that their role has been limited to answering the technical
questions asked by the Court. In no way, their answers should be considered
as a support , whether technical or moral, for the decisions of the court
or, a contrario, as a criticism thereof.
The context
On may 22, 2000, Yahoo France
and Yahoo Inc. were found liable by the Superior Court of Paris in the
following terms:
" (The Court) Orders Yahoo!
Inc. to take such measures as will dissuade and render impossible any and
all consultation on Yahoo.com of the auction service for Nazi objects as
well as any other site or service which makes apologies of Nazism or questions
of the existence of Nazi crimes;
Orders Yahoo France to
warn any and all surfers consulting Yahoo.fr, and the foregoing prior to
use of the link enabling him to pursue his search on Yahoo.com where the
result of his search, whether via the arborescence, or through the use
of key words leads him to sites, pages or forums the title and/or contents
of which constitute a violation of French law, as well for consultations
of sites which display apologies of Nazism and/or exhibit uniforms, insignia,
emblems reminiscent of those which were worn or exhibited by the Nazis,
or offering for sale objects or works the sale of which is strictly forbidden
in France, it must interrupt the consultation of the relevant site lest
it incur the sanctions stipulated by French law or answer to actions initiated
against it;
Yahoo France has stated that
it has executed this decision. Yahoo Inc. has argued that there does not
exist a technical solution enabling it to fully respect the Court's ruling.
A panel of experts was then
appointed to enlighten the Court with respect to the various technical
solutions which might be implemented by Yahoo Inc. with a view to executing
the decision of May 22.
Internet
The internet is a combination
of several hundred millions computer networks and associated sites which
are interconnected throughout the world. Routers are computers used for
interconnecting these networks. It is estimated that there are one hundred
million portable computers, desk computers, organizers, mobile telephones,
etc.
A body of procedures was
defined from 1973 to 1980, under the authority of the research laboratories
of the American Army, (DARPA). These procedures, known under the name TCP/IP,
are the heart of several hundred million protocols used on the Internet.
At the end of the 1980s,
the CERN conceived the web (WWW) which exploits complementary procedures,
the http protocols ad the HTML language, to implement this system of global
sharing of information.
The application which are
the most prevalent are electronic mail (e-mail), forums (newsgroups), chat
rooms, auction sales, telephony, video and radio on line and many other
services.
A common misunderstanding
consists in saying that internet services are provided by the Web. In fact,
the Web is just one of the facets of the Internet.
Internet which began a an
experimental project used and developed by computer science researchers
has within ten years become a world-wide commercial enterprise. Internet
service providers (ISPs) have built and exploited networks open to the
public. The private networks of universities, of firms, and even home computers
are interconnected by suppliers of internet service within a global network.
Certain service providers have specialized in the supply of access to users
of the telephone interconnections. Others are specialized in the supply
of access to used of television by cable, to users of ISDN lines, to users
of ADSL, local loops, etc. . . These providers are generally called Internet
Access Providers. They generally offer different portal services, electronic
mail, information, etc. . .
Each unit connected to the
internet must have an IP address. At the outset, certain organizations
had obtained stocks of addresses from MANA. These stocks were divided into
sub-groups attributed to their customers. These addresses might be fixed
for the units connected permanently or temporarily for users of the telephone
commuted network, or mobile units (portable computers). These addresses
are comprised of 32 bits structured in two parts. The network part and
the individual part. WAP telephones do not each have an IP address. The
WAP protocol uses a bridge to convert the WAP address into an IP address
and vice versa.
IP addresses are represented
by four series of octets converted into decimal numbers from 0 to 255.
This representation is not
very convenient and creates a system for associating name to an address.
These names, which each correspond to an address, are called domain names.
The conversion of a domain name into an IP numerical address is achieved
in within a body of data distributed over the Internet (DNS). These DNS
servers proceed by arborescence and are specialized according to the nature
of the services ^provided (COM, .org, .edu, .gov, etc. . .) and according
to countries (.fr, .uk, .sf, etc. . .).
But it must be understood
that there is no rule of correspondence between the countries in domain
names and the numerical IP address. For example, www.yahoo.fr
does not correspond to an IP address of the French network.
Consequently, the extension
of the domain name does not make it possible to determine to which network
the IP numerical address belongs.
On the other hand, the allocation,
originally carried out by MANA, then by ICANN, of IP addresses to internet
service providers (ISPs) follows an arborescence which goes from, for example,
the principal network, to a sub-network, to an access provider then to
a local user.
It is possible to go backward
from a determined IP address to an access provider, to a sub-network and
to a principal network.
Therefore, certain organizations
and certain service providers maintain data bases which make it possible
to find the coordinates of a network, of a sub-network, of a router or
of a site from its IP address.
The DNS system offers access
providers, to sites, etc. . . the possibility of registering with their
coordinates their geographical location in the form of latitude and longitude.
This is not an obligation.
The exploitation of the geographical
locations of IP address holders is nevertheless of great interest, not
only to aim advertising but also to ensure that the web develops harmoniously.
Several service providers
have available the technology and the data bases which make it possible
to geographical identify such and such an address whether fixed or even
allocated dynamically. Several among them have introduced themselves to
the Court's panel of experts to maintain that they had available the technical
means making it possible for Yahoo Inc. to execute the obligations imposed
upon it by the Court.
The problem
To respect the terms of the
ruling finding it liable and prohibiting access to auction sales of nazi
objects, Yahoo must:
1/ identify the geographical
original and nationality of internauts seeking access to its auction site
2/ prevent French internauts
or those connected from French territory, to learn of the description of
nazi objects being auctioned and a fortiori to bid.
On the geographical
origin and nationality
The general case
The interrogation of a web
site by the public consists in putting into relation a user's work station
(personal computer or other) with an intended site.
This operation involves the
intervention of different categories of intermediaries: the supplier of
access, the routers, one or more intended sites.
It is opportune at this stage
to recall that the user's work station, the access supplier, the routers
and intended sites are identified on the network by an address conform
with the internet protocol (IP).
Whereas IP addresses of access
suppliers, of routers and of intended sites are fixed, in the sense that
there is a permanent bi-univocal link between and IP address and its holder,
this is not the case for the address attributed to the work station of
the user. This address is dynamically attributed, in a non-permanent manner,
by the access supplier at the time of the connection.
But, the access providers
may only attribute IP addresses which have been allocated to them by the
net authorities. Such addresses follow an arborescence as was said above.
The micro-computer of the internaut is given an IP address attributed to
a supplier of access which belongs to a sub-network, which belongs to a
network.
The panel of experts questioned
the AFA, the association of internet access and service providers, to learn
what fraction of internet connections carried out by access providers which
do not provide IP addresses which are identifiable as French.
The answer was 20.57% as
of September 30, 2000.
The panel also asked the
AFA to what extent its adherents were representative of access providers
operating on French territory.
The answer, according to
a Médiamétrie study of March 2000, is "87% of internauts
connecting from their homes use an access provider which is a member of
the AFA.".
It may be added that for
reasons of telephone costs, French internauts mainly use the services of
access suppliers which are present in their country.
It may therefore be estimated
that almost 70% of the IP addresses attributed to French internauts may
be associated with certainty to a French domiciliation of the access provider
and be filtered.
This indeed is the fact which
makes it possible for Yahoo Inc. to post franco-french advertising banners
on its auction sales site.
Annex B of this report shows
the path of the connection of an internaut to the site of destination via
the access provider Club-Internet (Grolier) using the PING and WHOIS functions
of the internet.
The exceptions
There are numerous exceptions.
A large number, of the order
of 20%, arises from the multinational character of the access provider
or the fact that it uses the services of an international ISP or private
communications network.
The case of AOL is in this
respect significant. AOL uses the services of the UUNET network. Dynamic
IP addresses are attributed by AOL appear as being localized in Virginia
where the headquarters of UUNET are located.
Therefore, the work stations
of users residing on French territory appear on the web as not being located
on French territory.
The same applies to several
private networks of large corporations (intranets) where the real addresses
are encapsulated and carried in such manner the address known y internet
site is that of the end of the tunnel.
Other exceptions arise from
the desire of certain users to conceal their actual address on the web.
This, there have arisen anonymization sites the purpose of which is to
replace the actual IP address of a user with another address. In such cases
it is not possible t know the geographical location of the customer of
the access provider since its address may not be know. The only localization
known would be that of the anonymization site but this is of no interest
in the matter at hand.
Examination of the solutions
proposed by the specialists in the trade
All the solutions proposed
rested on an exploitation of the geographical information of the sites
which have one or more permanent addresses. These bases are constituted
for part from information obtained from DNS servers and for part from information
gathered by the providers themselves.
Infosplit
The experts were able to
observe that Infosplit was incapable of geographically locating the users
of AOL France the server of which was located in the United States, for
the reasons evoked able.
NetGeo
Relying upon principles similar
to those of Infosplit, this system is also incapable of localizing internauts
using a network for which the access provider attributes dynamic IP addresses
which do not correspond to the actual geographical location of the user.
CyberLocator
This solution relies upon
the exploitation of the geographical data obtained from the system of localization
by satellite (GPS).
It is totally inappropriate
in the case at hand since rare are the internauts who have a GPS peripheral
coupled to their work stations.
Internauts' declarations
on their honor with respect to their nationality
Since, because of the exceptions
cited above, no technique for filtering makes it possible to identify all
French internauts or those connected from French territory, the panel of
experts has considered the opportunity of having internauts subscribe a
declaration on their honor as to their nationality.
Such a declaration might
be subscribed upon the first connection to the site in dispute, in this
case, the Yahoo auction sales site, by an internaut the IP address of whom
belongs to one of the exceptional régimes mentioned above.
A message (a cookie) placed
on the work station of the internaut would enable the internaut to avoid
having to renew his declaration at the time of each connection.
Exploitation of nationality
by Yahoo Inc.
This is the second part of
the problem. What to do once the nationality or the place of localization
of the work station are known?
The measures to be implemented
depend on the facts of each case. They may not be generalized to all sites
and services on the net.
In the case at hand, the
site to taken into consideration is pages.auctions.yahoo.com. It is hosted
by GeoCities IP address 216.115.104.70, localization 37°, 352 latitude
North. 121°.956 longitude West, GeoCities network registered by Yahoo,
3400 Central Expressway, Suite 201, Santa Clara, CA 95051.
This site is a site for the
sale by auction of miscellaneous objects and not just nazi objects. The
characteristic of this type of site is to enable the internaut to find
easily the objects he is looking for.
It seems that in order to
respect the terms of the decision of May 322, 2000, Yahoo must not allow
internauts of French nationality or calling from French territory to access
such objects.
If, at the end of a search
carried out by a request sent by a French internaut, one or more nazi objects
described as nazi objects by their owner have been selected by the search
engine, they must be hidden from the internaut and excluded from his search
results.
But, obviously, it is not
possible for Yahoo to exclude a priori the objects which might not have
been described by their owners as being of nazi origin or as originating
from the nazi period, or the characteristics of which might not have been
brought to the attention of Yahoo.
The verifications carried
out by the panel of experts have confirmed that numerous nazi objects were
indeed presented as such by their owners.
A more radical solution is
also possible. It would suffice that the search engine not execute the
requests, transmitted to the URL, which include the word "nazi" and which
emanate from internauts recognized as French or declared as such.
THE CLAIM
AGAINST YAHOO INC.
"To describe the information
carried by the net which makes it possible to determine the geographical
origin of calls."
The internet protocol (IP)
associates the IP address of the transmitter and that of the intended party
with each packet of information transmitted. The intended party is thus
capable of knowing the IP address of the transmitter. There are three classes
of IP addresses (A, B and C) a description of which is included in Annex
P.
The first par of this address
makes it possible to identify the network and the sub-network to which
belong the access provide of the transmitter. These networks may be either
national or multinational.
According to the Association Française des Fournisseurs d'Accès (AFA), we may consider that 80% of the addresses which are attributed dynamically by the members of this association are identified as French. A contrario, 20% are not.
Among the information carried
over the net, only the IP addresses of the transmitters make it possible
to determine the geographical origin of the calls. 80% of the addresses
attributed dynamically by access providers which are members of the AFA
may be identified as being French.
But, it needs to be pointed
out that the geographical origin of which notice is taken is that of the
site of the access supplier called by the internaut. Nothing prohibits
a user to call from France, by telephone, to an access supplier the telephone
number of which is origin. In this event, the IP address attributed dynamically
will most likely be identified as foreign. It is also possible for a foreigner
to call an access provider located in France and to have himself attributed
a French IP address.
However, we may estimate,
in the present state of affairs, that more than 70% of IP addresses residing
on French territory may be identified as French.
The experts emphasize that
nothing justifies the conclusion that it will remain this way in the future.
Encapsulation is developing, service and access providers are going international
and internauts are more and more looking for ways to protect their privacy.
"To state if other information,
originating in particular from telephone operators or cable operators may
be exploited both by access providers as well as servers domiciling the
target sites to determine the origin of calls and, in such case, to describe
them."
This information carried
by the operators of telecommunications services and cable-operators, but
not carried over the internet. Therefore, the intended sites may not be
identified.
French telecommunications
operators systematically transmit the telephone number of the caller to
the terminal of the person called. This information is not exploited in
real time by the access provider. It is retained temporarily in a file
for future searches. It is thus possible to know, a posteriori, after analysis
of the history of the connections, what was at any one time the number
of the caller to whom was attributed such and such an IP address or vice
versa.
Cable-operators may also;
upon request, but a posteriori, associate an IP address, which they have
at a given moment, associated with the local site of their customer.
***
**
*
"To describe the filtering procedures which may be implemented by Yahoo to prohibit access to internauts operating from French territory to the sections which might be considered illicit by the French judicial authorities;
In the event that no technical solution might guarantee a filtering at 100% reliability, to supply all technical elements and elements of fact which make it possible to appreciate the extent of filtering likely to be obtained for each of the procedures of filtering described by the consultants.
More generally to provide
all technical elements and elements of fact making it possible for the
court to cause to be respected the access restrictions order against Yahoo
Inc."
The experts considered that
for a technical solution to be effective, it must be adapted to the case
at hand. The Yahoo companies exploit a number of services (annex G) on
the net, from personal pages (GeoCities) to astrology (Yahoo astrology)
including finance, etc. . . Most of these sites do not appear to be concerned
by the is dispute.
The decisions of the Court
and the claims do not describe with precision only the auction sales site.
No claim is made against other sites and services of Yahoo with sufficient
precision to enable the experts to propose technical solutions which are
adapted and functional.
The experts limited therefore,
in the present state, their answers to the case of auction sales (Yahoo
auctions).
They also excluded the examination
of other technical measures which might be imposed upon third parties,
not party to these proceedings. Neither the case of Proxy servers, nor
the parametering of navigators of internauts are included in the mission
conferred upon them by the Court.
REPLY OF
THE EXPERTS LAURIE AND WALTON
These experts note that,
in the present state of development of the internet, that:
1) The numbers supplied by
the AFA, cross-referenced with their personal experience, justify these
experts in thinking that 70% of the IP addresses of French citizens or
residents on French territory which may be correctly identified by specialized
service providers such as info-Split, GeoNet or others, using specialized
data bases.
2) Yahoo! Carries out a posting
of advertising banners targeting internauts which the company thinks are
French and that it has available the technical means enabling it to identify
them.
3) Approximately 30% of the
IP addresses attributed to French people may not be correctly identified
using the above mentioned techniques.
4) Numerous sites, most often
relating to national defense (cryptography); do not authorize access to
certain pages of the site or to downloading of software until a declaration
of nationality has been obtained from the internaut.
5) "Cookies" are in general
use and make it possible for certain information to be reseized by the
internaut each time it consults a site. Anyone trying to destroy a cookie
or to prevent its registering knows perfectly well that his consultations
will be longer on the sites which transmitted them.
6) The nazi objects are generally
described as such by the sellers using the word "nazi", in the description
of the object which appears as a sales argument.
Therefore, these experts
consider that in addition to the geographical identification already practiced
by yahoo to target its advertising, it would be appropriate to cause internauts
whose IIP address is ambiguous to subscribe a declaration of nationality.
This declaration on one's
honor would apply only to internauts the IP address of whom could not be
identified as being associated with a French ISP (for example, multinational
ISPs such as AOL, an address emanating from an anonymizer or an encapsulation
in a an address attributed by an intranet server).
This declaration might, at
the discretion of Yahoo, be subscribed either on the home page of its auction
sales site, or only in the event of a search for nazi items; if the word
nazi appears in the user's search, just before the processing of the search
by the search engine.
In such circumstances, these
experts consider that one cannot reasonably maintain that this would have
negative effects on the performance levels and the response times of the
server hosting the Yahoo auction sales site.
The association of the two
procedures, geographical identification of the IP address and declarations
of nationality, would probably make it possible to reach a rate of filtering
close to 90%.
REPLY OF
THE EXPERT VINTON CERF
We reiterate below the dissenting
part of the opinion of the expert Vinton Cerf, such the latter expressed
it himself:
"It has been proposed
that users identify where they are at the request of the web server, such
as the one(s) serving yahoo.fr - or yahoo.com. There are several potential
problems with this approach. For one thing, users can choose to lie about
their locations. For another, every user of the web site would have to
be asked to identify his or her location since the web server would have
no way to determine a priori whether the user is French or is using the
Internet from a French location. Some users consider such questions to
be an invasion of privacy. While I am not completely acquainted with privacy
provisions in the Europe Union, it might be considered a violation of the
rights of privacy of European users, including French users to request
this in formation. Of course if this information is required solely because
of the French Court Order, one might wonder on what grounds all other users
all over the world are required to comply.
Another complaint about the idea of asking user for their location in that this might have to be done repeatedly by each web site that the user accesses - yahoo cannot force every web site to make this request. When a user first contacts the server(s) at yahoo.fr - or yahoo.com, one might imagine that the question of geographic location might be asked and then a piece of data called a cookie might be stored one the user's computer disk. Repeated visits to Yahoo sites might then refer to this cookie for user location information. The problem with this idea is that cookies are considered by many to be an invasion of privacy also, as a result many users either configure browsers to reject storage of cookies on their disk drives or they clear them away after each session on the Internet - thus forcing the query about geographical location each time the user encounters a Yahoo-controlled web site. Again, Yahoo would have no way to force a web site net under its control to either ask the location question or to request a copy of the cookie containing the location. Indeed, it would open up a vulnerability for each user if arbitrary web sites were told how to retrieve the cookie placed there by the Yahoo sites.
It has been suggested that the filtering need only apply to users accessing the Internet from French Territories or by users who are French citizens. It is not clear whether the jurisdiction of the French Court extends to actions taken by French citizens who are not in French territory at the time of their access to Internet.
For these and many other
reasons, it does not appear to be very feasible to rely on discovering
the geographic location of users for purposes of imposing filtering of
the kind described in the Court Order".
Thus done, closed and
signed.
In Paris, on November
6, 2000
Vinton Cerf Ben Laurie
François Wallon
Freely translated into French:
"It has been suggested that internauts specify where they are located upon
request of the web server, such as yahoo.fr or yahoo.com. There are several
inconvenient aspects of this approach. One is that internauts may deliberately
lie. Another is that each internaut would have to be questioned to know
his geographical localization since the server has no way of determining
a priori whether the internaut is French or resides on French territory.
Certain internauts consider
this as an invasion of their privacy. I am not completely up on the provision
guaranteeing the protection of privacy in the European Union, but one might
consider that to request such information would violate the right to have
European internauts', including French internauts', right to privacy. Naturally,
of such a request were to emanate solely from a decision of a French court,
one might ask why other internauts over the whole world should have to
comply with the rule. Another criticism of the idea of asking users their
localization is that it would have to be repeated on each web site to which
the internaut were to access - Yahoo cannot force all sites to respect
this request.
When a user contacts yahoo.fr
or yahoo.com one may imagine that the question of localization might be
raised and that a cookie might be placed on the disk of the internaut.
This cookie would be used to know the localization of each new visit of
the yahoo sites. The difficulty is that cookies are considered by many
to be invasion of their privacy, and so many internauts program their navigator
to refuse cookies on their disks or even to erase them after each internet
access - in this case, the question of the localization will be raised
each time that an internaut visits a site controlled by Yahoo. Again, Yahoo
does not have the means to oblige a site which is not under its control
o request the localization or the refer to the cookie. Obviously this would
render more vulnerable each internaut were it to be said to any web site
to search for the cookie placed by the yahoo sites.
For this and for many other
reasons, it does not seem very functional to rely upon the search for geographical
localization to impose filtering such as is descried in the decision of
the court."
Whereas it appears from the
arguments that physical localization of an internaut is possible on the
basis of the IP address;
Whereas Yahoo Inc. attempts
to render these conclusions totally inapplicable by opposing the contents
of a separate note of the of the experts, Mr. Vinton Cerf;
But whereas first of all
at the hearings devoted among others to testimony of the consultants, Mr.
Vinton Cerf, admitted the feasibility of such geographical localization
in the terms and conditions of the report and in the proportions which
are indicated in the report, of which he approved the contents;
Whereas, moreover, his separate
note of November 5, 2000, of which Yahoo invites us to take note, does
not contradict the conclusions of the report; that it contents itself to
expose one the one hand that it would be "incorrect, in any case such as
to induce in error", to affirm that it would be possible to determine with
great reliability the physical localization of an IP address, the terms
"great reliability" being taken to mean, apparently, a degree of reliability
far above the degree retained by the report which is of the order of 70%
and on the other hand that the panel of experts ahs also admitted in its
entirety that the reply which had been provided on this point could only
relate to the auction site selling nazi objects and that it could not be
the object of extrapolations to sites and services under the control of
Yahoo;
Whereas it is opportune to
recall moreover that Yahoo Inc. has already implemented geographical localization
of French internauts and those operating from French territory who visit
its auction site since it systematically post advertising banners in French
to the attention of such internauts which it has the means to locate; that
Yahoo Inc. may not validly sustain that the technology to be implemented
in this case would be "crude" without any reliability, unless it were to
be supposed that Yahoo had decided to spend money to lose it or to trick
its advertisers on the quality of the services and performance to which
it had committed itself , which does not seem to be the case here;
Whereas, in addition to the
geographical identification which it has already been showed is used by
Yahoo Inc. the report of the experts suggests that there be subscribed
by those internauts the IP address of whom is ambiguous (transition through
an anonymiser (site which guarantees anonymity) - or attribution of IP
addresses by AOL Compuserve which do not take account of the country of
origin of the subscriber) a declaration of nationality, in reality a declaration
with respect to the geographical origin of the internaut, that Yahoo Inc.
might require either at the moment of the consultation of the home page,
in the case of a search for nazi objects, if the word "nazi" appears in
the request of the user, just before the treatment of the request by the
search engine;
Whereas the experts, who
contest the allegations of Yahoo Inc. with respect to the negative effects
of such a control on the performance levels and the response time of the
server hosting the auction sale site, estimate that the association of
the two procedures, geographical identification and declaration of nationality
make it possible to achieve a rate of filtering close to 90%;
Whereas, as regards the optimization
of the filtering by association of key words, the experts were of the opinion
during the hearings that it would no doubt be necessary in order to optimize
this filtering to select some ten words associated with search engines
of documents or used for searching chains of characters "and" "or" "except";
Whereas in addition to the
measures suggested by the experts, it is appropriate to add the controls
by Yahoo of the place of delivery of objects acquired by auction;
Whereas, in effect, a visit
to a site for auctioning nazi objects is not just for the purpose of looking;
that its purpose is often the purchase of objects, therefore, if Yahoo
has not been able to identify with certainty the geographical origin, in
the case at hand French, of the internaut, it will be aware of the place
of delivery, and be able to prevent the delivery when same is programmed
to be France;
Whereas, moreover, based
on the linguistic version of the navigator, Yahoo Inc. might have available
additional information on the nationality of the internaut,
Whereas it might nevertheless
sustain that the use of such information would require that it modify the
software it uses to manage its sites and a notable increase in the associated
material resources;
That it adds that the filtering
of all information at the level of the web server could only be implemented
if it were possible to know that the prohibition would apply only to French
internauts, lest internauts from the rest of the world be prevented from
accessing the information published on such sites, which is not imaginable;
But whereas, first of all,
it has been demonstrated that it has the technical operational means to
carry out filtering;
Whereas, moreover, it has
not demonstrated with a convincing projection, that the technical adaptation
made necessary to control the access to the nazi objects auction site would
entail a significant increase of the associated material resources;
Whereas, in any case, Yahoo
Inc. has offered to cooperate with the plaintiffs; therefore, it has requested
that notice be taken that it is willing to implement a system of scanning
with the assistance of the plaintiffs, whose struggle it has always respected,
in order that, when a site offensive is brought to its attention and on
condition that it is manifestly intended essentially to French users, it
might cease its hosting;
That to prove its good faith,
it indicates that it has stopped the hosting of the protocol of the Sages
of Sion, considering sufficient the link of attachment of such document
with France due to the language of the work;
Whereas with a little good
will, Yahoo Inc. may convince itself of the utility of extending this link
of attachment to photographs and to descriptions of objects representing
symbols of nazism;
Whereas according to the
information in the experts' report upon request of the plaintiffs and which
were not seriously contested, Yahoo already refuses on its auction site
the sale of human organs, drugs, works or objects related to pedophilia,
cigarettes or live animals, all of which sales are directly excluded and
for just cause from the protection of the first amendment of the American
constitution which guarantees freedom of opinion and expression;
Whereas it would no doubt
cost very little for it to extend these prohibitions to symbols of nazism
and such an initiative would have the merit of satisfying a requirements
of ethics and morals which are shared by all democratic societies;
Whereas the combination of
technical means available and of the initiatives which it can implement
if only for the sake of elementary public morals therefore make it possible
to satisfy the injunctions contained in the order of May 22, 2000 that
is through filtering of access to the site auctioning nazi objects as with
the service involving the work Mein Kampf which was covered by the formulation
of order cited above within the terms "and of any other site or service
which contains an apology of nazism";
Whereas a period of three
months will nevertheless be allowed for compliance with this order;
Whereas beyond such period,
it shall be liable to pay F 100,000 per day of delay until execution shall
have been fully accomplished;
With respect to the claim
against Yahoo France
Whereas the experts' report
stipulates and suggests:
"Verify whether Yahoo
France has indeed complied with the terms of our injunction contained in
the order of May 22, 2000."
The order of May 22, 2000
stipulated in this respect:
"(The Court) Orders Yahoo
France to warn any and all surfers consulting Yahoo.fr, and the foregoing
prior to use of the link enabling him to pursue his search on Yahoo.com
where the result of his search, whether via the arborescence, or through
the use of key words leads him to sites, pages or forums the title and/or
contents of which constitute a violation of French law, as well for consultations
of sites which display apologies of Nazism and/or exhibit uniforms, insignia,
emblems reminiscent of those which were worn or exhibited by the Nazis,
or offering for sale objects or works the sale of which is strictly forbidden
in France, it must interrupt the consultation of the relevant site lest
it incur the sanctions stipulated by French law or answer to actions initiated
against it;
To execute the terms of the
order, Yahoo! France has:
It has been observed that the conditions of use of Yahoo! were not
systematically posted at the time of the first connection to such site
and that moreover the link "know everything about Yahoo!" did not necessarily
evoke the general conditions of use.
On the other had, the warning was systematically posted in the context
of searches by category (for example, holocaust).
It is technically possible for Yahoo! France to compel posting of
its conditions of use at the time of the first connection by a user to
its site.
Yahoo! might also, in addition to or in replacement of the preceding
measure, provoke the systematic posting of the warning cited in 2) as soon
as is posted the link to Yahoo.com.
But, with respect to this last point, Yahoo! has pointed out that
these were not the terms of the order. Accordingly, it will be up to the
Court to interpret its decision. Contrary to what is maintained by Yahoo!
"to warn internauts viewing Yahoo.fr, even before they use the link . .
. " may mean that the warning must be posted each time the link is posted.
Whereas Yahoo France argues that it has fully complied with the terms
of our order of May 22, 2000, in that it has modified the link subject
of the plaintiffs' complaint, by installing the warning mentioned in the
order on several links, and by reminding internauts of the conditions of
use of the services which are accessible to users immediately upon their
connection to yahoo.fr and which since November 3, 2000 may be viewed on
all the pages of Yahoo.fr, and by modifying the general conditions of use
of the service by integrating a message which goes beyond even the prescriptions
of the order of May 22, and this in the terms of the new article 6.2;
Whereas the initiatives of Yahoo! France are technically of a nature
such as to satisfy for the most part the terms of our order of May 22,
2000, subject to the reservation however that the warning be mentioned
each time the link is posted and "even before the internaut makes use of
the link";
With respect to the other claims against Yahoo! France
Whereas the claims of LICRA, UEJF and MRAP seeking that Yahoo France
ordered subject to payment of a fine in the event of non-compliance to
eliminate all links between the yahoo.fr site and the sites belonging directly
or indirectly to Yahoo Inc. until Yahoo Inc. has fulfilled its obligations,
are not matters for summary proceedings since the exists a serious dispute
by Yahoo France as to their claims, which dispute takes the matter beyond
the scope of our competence;
NOW THEREFORE
In public hearing in first
instance, in the presence of the parties, we hereby:
- reject the objection to
our competence presented by yahoo Inc.;
- order Yahoo Inc. to comply
within 3 months with the notice including an injunction of our order of
May 22, 2000 lest it be liable to pay 100,000 Francs per day of delay commencing
as of the first day following the expiration of a period of 3 months;
- designate Mr. Wallon, 19
rue Decamps 75016 PARIS, telephone: 01.47.55.47.73, FAX: 01.47.55.48.08.
for the purpose of rendering an advisory report with respect to the implementation
of the terms of the above order;
- set at an amount of 10,0000
Francs the provision for the cost of the consultant's report which shall
be paid by Yahoo In. directly into the hands of the consultant within one
month of this order;
- declare that should the
provision not be paid in a timely manner, the matter shall be referred
to us;
- recognize that Yahoo Inc.
has decided to stop hosting of the protocol of the Sages of Sion;
- note that Yahoo France
has for the most part fulfilled the letter and the spirit of the decision
of May 22, 2000 which contains an injunction applicable to Yahoo France;
- order however that it cause
to appear a warning to the attention of internauts even before they use
the link to Yahoo.com and the foregoing within 2 months of the note of
this decision;
- order Yahoo Inc. to pay
to each of the plaintiffs and amount of F 10,000 under the terms of article
700 of the New Code of Civil Procedure;
- declare that it is not
appropriate to apply the above measures to Yahoo France;
We reserve for ourselves the eventual liquidation of the injunction;
We declare that that it is
not appropriate to order any other measures nor to consider the other claims
against Yahoo France;
We order that Yahoo Inc.
shall bear the costs of the cause, except for those arising in connection
with claims made against Yahoo France which shall provisionally remain
for the account of each of the parties.
Done in Paris on November 20, 2000
Signature
The Clerk of the Court
Nicole Vouriot
Signature
The Chief Justice
Jean-Jacques Gomez