by June 7, 2002 0 comments



On November 20, 2000 a French trial court ordered Yahoo! Inc to put filtering systems in its US website to prevent access by French residents to portions of its auction site where World War II memorabilia containing Nazi symbols were being sold. It ruled that Yahoo! must put a three-part system in place that included filtering by IP address, the blocking of 20 keywords and self-identification of geographic location. Yahoo! was given three months to put the system in place, after which it would’ve had to pay a fine of $13,000 a day if the system were not implemented. Yahoo! implemented the system, though a bit late. So it had to pay some fine. 

But the French, who retain unhappy memories of Nazi occupation, were not satisfied with the removal of the items from the French Yahoo! site. So, after numerous appeals, which needless to say were quite ineffective, the American Bar Association consulted lawyers worldwide. I, along with an American lawyer, drafted what I believe to be the only appropriate answer to municipal squabbles in cyberspace. We reminded the French trial court that cultural differences were very much a part of a global society. The French themselves, we noted, were fond of websites like moulinrouge.fr and ftv.com. Now, what if a more traditional regime had to haul them to court because the sites did not comply with their sentiments? Needless to say, this logic found no favor. Yahoo! sued the French NGO (that had taken them to court in France) in Santa Barbara, California. The battle rages on… Still
sub-judice. 

What does this case mean in terms of jurisdiction in cyberspace? In its initial ruling (May 22, 2000) the French court had held that the US website for Yahoo! Inc. was subject to French jurisdiction simply because it could be accessed from France. Historically, the jurisdiction to prescribe laws and adjudicate disputes has been based on territorial principles–if a country found a person within its territory, it exercised jurisdiction over that person. The Internet greatly diminishes the significance of physical location of the parties because transactions in cyberspace are not geographically based. Moreover, the Internet alters the power balance between distributor and consumer, because consumers now have instant access to enormous amounts of information and highly sophisticated analytical tools. This affects the basis on which courts have analyzed the ability of consumers to make enforceable choices of law and
fora.

To decide what laws apply in cyberspace, those responsible for the creation of laws must first decide whether cyberspace is a place, a means of communication, or a state of mind. I believe that the Internet merely represents yet another means of communication along a continuum of technological developments that date back to the discovery of electricity. Nevertheless, that does not mean that these questions are easily answered. Especially not if national sentiment has any say!

RODNEY D RYDER
Advocate,Supreme Court of India, is a 
consultant on trade and technology laws

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