LICRA and UEJF

vs

YAHOO! Inc. and YAHOO FRANCE

 

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SUPERIOR COURT OF PARIS

ORDER IN SUMMARY PROCEEDINGS

rendered on May 22, 2000

 

 

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 Christiane BENSOAM, Chief Clerk of the Court.

 

PLAINTIFFS

 

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

 

 

LIGUE CONTRE LA RACISME ET L'ANTISÉMITISME - LICRA, represented by its President Mr. Patrick GAUBERT

452 rue du Louvre

75002 PARIS

 

Represented by Maître Marc Levy, barrister before the Bar of Paris, P 0119

 

DEFENDANTS

 

Yahoo! Inc.

3420 Central Expressway SANT-CLARA

California 95051

United States of America

 

Represented by Maître Christophe Pechard, 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

 

Present:

 

Mr. Public Prosecutor before the Superior Court of Paris

4 boulevard du Palais

75055 Paris

 

represented by Mr. Pierre Dillange, First Substitute

 

 

 

 

We, the Chief Justice,

 

After having heard the parties who appeared before us or their counsel,

 

Having observed and had notice taken by the sheriff that, on the site Yahoo.com, which is accessible to all surfers who call from France, there appears a page marked "AUCTIONS" (which proposes for sale some thousand nazi objects and while claiming that this exhibition of objects proposed for sale constituted not only a violation of the provisions of article R.645-1 of the Penal Code but also the largest possible enterprise in the banalizing of Nazism, the LICRA, the object of which includes combating by all means racism and anti-Semitism as well as defending the honor and memory of the deported, has petitioned us to issue against Yahoo! Inc., owner of Yahoo.com, an injunction to take such measures as may be necessary to prevent the exhibition-sale on its Yahoo.com site of Nazi objects throughout the territory of France (procedure number 00/05308);

 

The UEJF, which associates itself with the claim of LICRA and which in addition claims that Yahoo! Inc. and Yahoo France have encouraged the propagation of anti-Semitism in writing, the former through its lodging on its Geocities service of two monuments of contemporary anti-Semitic literature: Mein Kampf by Adolph Hitler and Protocol of the Sages of Scion (famous false document supposedly establishing Jewish corruption and his plan of government), the latter though its offer of a link to Yahoo.com where the auction is held, in addition to a "revisionist" section from which one can consult a site called "Aerial photo evidence" which proposes to prove though images that the gas chambers never existed, petitions us to:

 

Declare grounded the claim of the UEJF in its statement of claim,

 

Therefore and in compliance with article 809 sections 1 and 2 of the New Code of Civil Procedure:2

 

 

1/ To order Yahoo Inc., lest it be obliged to pay Euros 100,000 per day of delay and or by kilo-octet of each file in violation of the injunction, to destroy any and all computer information held directly or indirectly on its server and correlatively to cease all lodging and servicing thereof on the territory of the Republic from the site "Yahoo.com":

 

 

 

www.geocities.com/SouthBeach/Caraba/7758/mk.html

www.geocities.com/Athens/Thebes/6370/protocol1tot8.html

 

2/ To order Yahoo! Inc. and Yahoo France jointly and severally lest they be obliged to pay Euros 100,000 per day of delay and per infraction, to eliminate, in any and all navigators accessible from the territory of the French Republic from the Yahoo.com and fr.yahoo.com:

 

 

While reserving its judgment with respect to the liquidation of the injunctions thus pronounced

 

 

To order the publication of an abstract of the order to be pronounced in five dailies or weeklies chosen by the UEJF, within a limit of F 25,000 per publication, or the cost shall be advanced by the defendants which will be consigned on a CARPA account by their counsel which shall release the funds upon presentation of the estimates of the OSP;

 

To enjoin each of the Defendant companies to implement the technical means appropriate to cause to appear, as an advertisement, an abstract of the order to be pronounced, on the home page of the sites of Yahoo.fr and Yahoo.com for a period of 30 seconds at the time of each consultation and for a period of 15 days;

 

To declare and to judge that this advertisement shall be carried outside of all advertising sections and without any additional mention of whatsoever kind, other than that relative to an eventual call in the form and according to the modalities which the Chief Justice may decide to set down;

 

To set at an amount of 50,000 Francs per breach the amount intended to guarantee the due performance of such publication in the forms and according to the conditions defined by the Chief Justice.

 

To reserve its judgment with respect to the liquidation of the injunctions pronounced;

 

 

To find Yahoo! Inc. and Yahoo France jointly and severally to pay to the UEJF an amount of 1 Franc on account of provisional damages;

 

To find them liable to pay an amount of 1 Franc pursuant to article 700 of the New Code of Civil Procedure;3

 

To find them liable for the costs of the cause.

 

Proper administration of justice requires the joining of the matters 00/05308 and 00/05309;

 

Yahoo! Inc. has argued that our court is not territorially competent over the matter, because the alleged fault is committed on the territory of the Unite States, and then argues that the statement of claim served by the LICRA is void for violation of article 56 of the New Code of Civil Procedure,4 and finally raise a preliminary objection based upon the standing of the UEJF in so far as it does not establish that it is acting on the basis of article 48-2 of the law of July 29, 1881,5 since it fails to establish that is an association for the defense of resistants or deported persons, and in any case in favor of the rejection of the claims, since the duties of vigilance and prior censure which the petitioners would seek to impose upon it are impossible obligations, first in terms of the law and the American constitution, in particular the first amendment of the constitution which institutes the liberty of expression and then in view of the technical impossibility of identifying surfers who visit the auction service, while recalling that in its charter it warns all surfers against using the service for purposes worthy of reprobation for whatsoever motive (incitement to hatred, racial or ethnic discrimination . . .);

 

Yahoo France argues that the claim of the UEJF should be dismissed on the basis of UEJF's lack of standing under article 48-2 of the law of July 29 1881, and subsidiarily that all the claims should be rejected, because, firstly, the installation on its site Yahoo.fr of a link to yahoo.com is not intended to promote revisionist theses or to banalize Nazism, and furthermore that it is rigorously diligent in that it makes available on its of a charter defining the conditions of use of Yahoo.fr, and argues finally that it does not personally propose any access to the litigious sites and services;

 

After having heard the Public Prosecutor's oral arguments in which he argues in favor of a finding of harm suffered by the petitioners;

 

 

Having considered as well the written arguments of the parties and the items filed in evidence

 

Whereas it is not challenged that surfers who call up Yahoo.com from French territory may, directly or via the link offered by Yahoo.fr, see on their screens the pages, services and sites to which Yahoo.com gives access, in particular the auction service (Auctions) lodged by Geocities.com, the lodging service of Yahoo! Inc., in particular in its declension relating to Nazi objects;

 

Whereas the exposition for the purpose of sale of Nazi objects constitutes a violation of French law (article R.645-2 of the Criminal Code) as well as an offence against the collective memory of a country profoundly wounded by the atrocities committed by and in the name of a the Nazi criminal enterprise against its citizens and most importantly against its citizens of the Jewish religion;

 

Whereas while permitting the visualization in France of these objects and eventual participation of a surfer established in France in such an exposition / sale, Yahoo! Inc. thus has committed a wrong on the territory of France, a wrong, the unintentional nature of which is apparent, but which is the cause of harm to the LICRA as well as the UEJF which both have the mission of pursuing in France any and all forms of banalization of Nazism, regardless of the fact that the litigious activity is marginal in relation with the entire business of the auction sales service offered on its site Yahoo.com site;

 

Whereas the harm is suffered in France, our jurisdiction is therefore competent over this matter pursuant to article 46 of the New Code of Civil Procedure;

 

Whereas Yahoo! Inc. claims that it is technically impossible to control access to its auction service or any other service, and that therefore it cannot prohibit any surfer from France from visualizing same on his screen;

 

Whereas it wishes nevertheless to emphasize that it warns all visitors against any uses of is services for purposes that are "worthy of reprobation for whatsoever reason", such as for purposes of racial or ethnic discrimination (cf. its user's charter);

 

But whereas Yahoo! Inc; is in a position to identify the geographical origin of the site which is coming to visit, based on the IP address of the caller, which should therefore enable it to prohibit surfers from France, by whatever means are appropriate, from accessing the services and sites the visualization of which on a screen set up in France, and in some cases teledischarging and reproduction of the contents, or of any other initiative justified by the nature of the site consulted, would be likely to be qualified in France as a crime and/or constitute a manifestly illegal nuisance within the meaning of articles 808 and 809 of New Code of Civil Procedure,6 which is manifestly the case of the exhibition of uniforms, insignia, emblems reminiscent of those worn or exhibited by the Nazis;

 

Whereas as regards surfers who navigate through sites which guarantee them anonymity, Yahoo! Inc. has fewer means of control except for example through refusing systematically access to such sites to all visitors who does not disclose their geographical origin;

 

Whereas the real difficulties encountered by Yahoo do not constitute insurmountable obstacles;

 

That it will therefore be ordered to take any and all measures of such kind as to dissuade and make impossible any consultations by surfers calling from France to its sites and services in dispute the title and/or contents of which infringe upon the internal public order of France, especially the site selling Nazi objects;

 

Whereas there may usefully be a debate about the nature of such measures within the confines of these proceedings;

 

That Yahoo will be given two months to enable it to formulate proposals of technical measures likely to lead to a settlement of this dispute;

 

Whereas, as regards Yahoo France, it bears mentioning that its site Yahoo.fr does not itself offer surfers calling from France access to the sites or series the title and /or the contents of which constitute infractions of French law; that therefore, it does not provide access to the site or services for auction sales of Nazi objects;

 

But whereas it offers surfers a link to Yahoo. Com entitled "further research on Yahoo.com", without any particular warning;

 

Or whereas, knowing what are the contents of the services offered by Yahoo.com, and in this case the service of auction sales including in one of its declensions the sale of Nazi objects, it behooves it to warn surfers, by a banner, prior to the surfer's entry into the Yahoo.com site, that should the result of his search on Yahoo.com whether along the arborescence or by reference to key words, leads him to point toward sites, pages or forums the title and or contents of which constitute a violation of French law, such as is the case of sites which, whether directly or indirectly, intentionally or unintentionally, make the apology of Nazism, it must interrupt the consultation of the site in question lest it incur the sanctions stipulated by French law or answer to legal actions which might be initiated against it;

 

Whereas such measures seem to us sufficient for the time being;

 

That whereas on the other hand, it is appropriate to apply the provisions of 700 of the New Code of Civil Procedure in favor of the plaintiffs;

 

NOW THEREFORE

 

At a public audience and rendering its judgment in first instance, after having heard all the parties, the Court:

 

Joins the proceedings bearing numbers 00/05308 and 00/05309;

 

Rejects the arguments for the defense;

 

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;

 

Orders the pursuit of this proceeding at our hearing of

 

Monday July 24, 2000 at 14 h 00

(Chambers of Deputy Chief Justice Gomez)

 

during which Yahoo! Inc. shall submit the measures which it intends to implement to end the harm and the nuisance suffered by the plaintiffs and to prevent any new incidents of nuisance;

 

Finds Yahoo! Inc. liable to pay to the LICRA an amount of 10,000 Francs on the basis of article 700 of the New Code of Civil Procedure;

 

Finds Yahoo! Inc. and Yahoo France liable to pay to UEJF an amount of 10,000 Francs on the basis of article 700 of the New Code of Civil Procedure;

 

Declares that no further measures are appropriate at this juncture;

 

Awards the costs of LICRA's action to be borne by Yahoo! Inc. and those of the UEJF by Yahoo! Inc. and Yahoo France.

 

 

Done at Paris on May 22, 2000

 

 

The Clerk The Chief Justice

 

 

 

Christine BENSOAM Jean-Jacques GOMEZ

 

 

 

 

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1 article R.645-1 of the Penal Code

2 article 809 sections 1 and 2 of the New Code of Civil Procedure

 

3 article 700 of the New Code of Civil Procedure.3

 

4 article 56 of the New Code of Civil Procedure.

 

5 article 48-2 of the law of July 29, 1881.

 

6 articles 808 and 809 of New Code of Civil Procedure

 

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