Facts
- Yahoo! Inc. (Yahoo), a U.S. company, operated Yahoo Auctions through yahoo.com; Yahoo! France operated yahoo.fr.
- The League Against Racism & Antisemitism (LICRA) sued Yahoo and Yahoo France in the Paris County Court, arguing that Nazi-related items appeared on Yahoo Auctions and were accessible from France.
- LICRA relied on Article R645-1 of the French Penal Code, which forbade the public display of certain Nazi-oriented materials, and argued that making such content available to users in France violated French public order.
- Evidence showed that when a computer located in France connected to Yahoo, Yahoo could send an advertising banner written in French, supporting the claim that French users were being reached through the service.
- In an order dated May 22, 2000, the county court directed Yahoo to “take all reasonable measures” to prevent access to Yahoo Auctions to the extent that Nazi-related items appeared there.
- The May 22 order also directed Yahoo France to place a warning message that would appear before a user proceeded from yahoo.fr toward yahoo.com, informing the user that viewing content prohibited by French law carried risks.
- Yahoo objected to the May 22 order on two main grounds: (1) the French court lacked competency to rule on the dispute; and (2) compliance was technically impossible.
- The county court appointed a panel of consultants to evaluate the technical objection.
- The consultants reported that geolocation based on IP addresses could identify a user’s physical location with about a 70% success rate, and that Yahoo could also use measures such as requesting a declaration of nationality and using filtering methods aimed at French users.
- On November 20, 2000, the county court addressed Yahoo’s objections in light of the consultants’ findings and considered what enforcement measures were appropriate.
Issues
- Whether the Paris County Court was competent to order relief against Yahoo regarding Nazi-related auction listings on a U.S.-hosted site that could be accessed from France.
- Whether Yahoo’s claim of technical impossibility barred an order requiring steps to limit access from France to Nazi-related listings on Yahoo Auctions.
- Whether the court could require Yahoo France to display an advance warning to users before linking them to potentially unlawful content.
- What coercive sanctions were appropriate to secure compliance with the court’s orders.
Decision
- The court rejected Yahoo’s competency objection and proceeded on the basis that the challenged auction content was accessible in France and implicated French law and public order.
- The court rejected Yahoo’s technical-impossibility defense, crediting the consultants’ conclusion that reasonable measures existed to substantially restrict access from France (even if no method was perfect).
- The court maintained the requirement that Yahoo take reasonable measures to prevent access from France to Yahoo Auctions listings involving Nazi-related items.
- The court maintained the requirement that Yahoo France provide a warning message to users before they proceeded from yahoo.fr toward yahoo.com, advising of legal risks under French law.
- The court backed compliance with an astreinte (coercive fine), reported as 100,000 French francs per day of noncompliance after the court’s deadline.
Legal Principles
- A French court may assert jurisdiction where online content is accessible from France and the alleged harm and legal violation occur in France, even if the service is operated from abroad.
- When content accessible in France is alleged to violate Article R645-1 of the French Penal Code and French public order, a court may order interim injunctive relief requiring reasonable steps to limit access.
- A technical-impossibility objection does not defeat relief where available measures (such as IP-based location methods, user declarations, and targeted filtering) can materially reduce access from the forum territory.
- A court may order a local affiliate to display a clear pre-access warning to users about legal risks associated with content that French law prohibits.
Conclusion
The Paris County Court held that it was competent to address Nazi-related auction listings on Yahoo’s U.S. site because the listings were accessible in France and implicated French public order, found that Yahoo could take reasonable steps to limit French access despite technical limits, required Yahoo France to show an advance warning to users, and supported enforcement through a daily coercive fine reported as 100,000 French francs for continued noncompliance.