On February 10, 2005 the Court of Appeals of the
Ninth Circuit (California) reopened the appeal of LICRA and the other associations
against the judgment of the Federal Circuit Court for Northern California
which had declared itself competent over the associations and declared
the French judgments inapplicable in the United States for breach of the
constitutinoal protection of free speech.
On August 23, 2004, the 9th Circuit Court of Appeals
had reversed the Northern District Court's judgment. The Appeals Court
had ruled that the case was not ripe for judgment in that the holders of
the French court judgment had not made sufficient efforts to enforce its
terms in California such as might justify exercise of personal jurisdiction
over them by the California courts.
ftp files of the judgments of February 10, 2005
and August 23, 2004 upon request.
Bizarrely, the United States Court of Appeals seems
to have been convinced by the French parties that the French court orders
cannot be enforced against Yahoo ! Inc.'s assets in France. The orders
available, which can be consulted from the links below, do not seem to
contain any such constraint.
A loss for Yahoo ! Inc. But hardly a victory
for the French Associations. The Court of Appeals did not take a position
on the constitutional question and there was no reason to suppose that
its opinion would have differed on the matter from that of the District
Court if the claim had been brought in accordance with the applicable procedures.
The rehearing of the appeal would seem to
foretell the adoption of a broader approach in the judgment which is expected
imminently.
THE FRENCH LITIGATION:
Upon noticing the continued presence of revisionist
and anti-semitic material on sale or otherwise observable on the yahoo.com
site, French associations dedicated to combatting anti-semitism and racism
brought fresh actions against Yahoo Inc. and its then President, Timothy
Koogle, for a range of infractions under French criminal laws such as apology
of war crimes. The defendants unsuccessfully challenged the jurisdiction
of the French court but were acquitted of the criminal charges because
the conduct reproached of them did not correspond to the elements required
to prove guilt of the crimes for which they were charged. On appeal, the
judgment was confimed in that the defendans were judged to be subject to
the court's jurisdiction and French law was applied to them, but they were
found not guilty of the charges.
ftp files of the judgments of February 26, 2005
and March 17, 2004 upon request.
YAHOO'S LEGAL
CHALLENGE IN THE UNITED STATES / L'AFFAIRE YAHOO AUX ETATS-UNIS
ftp files of the judgments of the
Court of Appeals Ninth Circuit of February 10, 2005 and August 23, 2004:
upon
request.
ftp file of the judgment of the
Federal District Court for Northern California on the substance upon
request.
International
Covenant on Civil and Political Rights, 1956
Article 18
1. Everyone shall have the right to
freedom of thought, conscience and religion. This right shall include freedom
to have or to adopt a religion or belief of his choice, and freedom, either
individually or in community with others and in public or private, to manifest
his religion or belief in worship, observance, practice and teaching.
2. No one shall be subject to coercion
which would impair his freedom to have or to adopt a religion or belief
of his choice.
3. Freedom to manifest one's religion
or beliefs may be subject only to such limitations as are prescribed by
law and are necessary to protect public safety, order, health, or morals
or the fundamental rights and freedoms of others.
4. The States Parties to the present
Covenant undertake to have respect for the liberty of parents and, when
applicable, legal guardians to ensure the religious and moral education
of their children in conformity with their own convictions.
Article 19
1. Everyone shall have the right to
hold opinions without interference.
2. Everyone shall have the right to
freedom of expression; this right shall include freedom to seek, receive
and impart information and ideas of all kinds, regardless of frontiers,
either orally, in writing or in print, in the form of art, or through any
other media of his choice.
3. The exercise of the rights provided
for in paragraph 2 of this article carries with it special duties and responsibilities.
It may therefore be subject to certain restrictions, but these shall only
be such as are provided by law and are necessary:
(a) For respect of the rights or reputations
of others;
(b) For the protection of national security
or of public order (ordre public), or of public health or morals.
Article 20
1. Any propaganda for war shall be prohibited
by law.
2. Any advocacy of national, racial
or religious hatred that constitutes incitement to discrimination, hostility
or violence shall be prohibited by law.
The European
Convention on Human Rights
Article 9
1.Everyone has the right to freedom
of thought, conscience and religion; this right includes freedom to change
his religion or belief, and freedom, either alone or in community with
others and in public or private, to manifest his religion or belief, in
worship, teaching, practice and observance.
2.Freedom to manifest one's religion
or beliefs shall be subject only to such limitations as are prescribed
by law and are necessary in a democratic society in the interests of public
safety, for the protection of public order, health or morals, or the protection
of the rights and freedoms of others.
Article 10
1. Everyone has the right to freedom
of expression. this right shall include freedom to hold opinions and to
receive and impart information an ideas without interference by public
authority and regardless of frontiers. This article shall not prevent States
from requiring the licensing of broadcasting, television or cinema enterprises.
2.The exercise of these freedoms, since
it carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed by
law and are necessary in a democratic society, in the interests of national
security, territorial integrity or public safety, for the prevention of
disorder or crime, for the protection of health or morals, for the protection
of the reputation or the rights of others, for preventing the disclosure
of information received in confidence, or for maintaining the authority
and impartiality of the judiciary.
U.S.
Constitution - First Amendment
Congress shall make no law respecting
an establishment or religion, or prohibiting the free exercise thereof,
of abridging the freedom of speech, or of the press; or the righ of the
people peaceably to assemble, and to petition the Government for a redress
of grievances.
Déclaration
des Droits de l'homme et du Citoyen de 1789
Art. 4. -
La liberté consiste à
pouvoir faire tout ce qui ne nuit pas à autrui : ainsi, l'exercice
des droits naturels de chaque homme n'a de bornes que celles qui assurent
aux autres Membres de la Société la jouissance de ces mêmes
droits. Ces bornes ne peuvent être déterminées que
par la Loi.
Art. 5. -
La Loi n'a le droit de défendre
que les actions nuisibles à la Société. Tout ce qui
n'est pas défendu par la Loi ne peut être empêché,
et nul ne peut être contraint à faire ce qu'elle n'ordonne
pas.
Art. 10. -
Nul ne doit être inquiété
pour ses opinions, même religieuses, pourvu que leurmanifestation
ne trouble pas l'ordre public établi par la Loi.
Art. 11. -
La libre communication des pensées
et des opinions est un des droits les plus précieux del'Homme :
tout Citoyen peut donc parler, écrire, imprimer librement, sauf
à répondre à l'abus de cette liberté dans les
cas déterminés par la Loi.