The law, borders and the internet

Yahoo got into hot water because of its operations outside the US

The long-running legal dispute between Yahoo and the French courts reflects the difficulties of international regulation of the internet, argues law professor Michael Geist.

Nearly six years ago, two French anti-racism groups launched an internet lawsuit that reverberated across the world.

They filed suit against net giant Yahoo, seeking a court order to compel the company to block French residents' access to postings displaying Nazi memorabilia.

While Yahoo already blocked access to content on its local French site - yahoo.fr - the groups' suit targeted the company's primary site based in the US - yahoo.com.

The case attracted immediate interest since it struck at the heart of one of the internet's most challenging issues - how to bring the seemingly borderless net to a world with borders.

After court cases in both France and the US, accompanied by multiple appeals, the dispute may finally have reached its conclusion earlier this month when an American appellate court issued a much-anticipated decision, one that left more questions than answers.

Geography lessons

The initial French case concluded several years ago when a judge sided with the anti-racism groups and ordered Yahoo to do what it reasonably could to ensure that French users could not access content that was unlawful in France.

The judge was persuaded at that time that Yahoo was capable of identifying when French users accessed its site and that his order would be limited to Yahoo's activities in France.

To support his opinion, the judge commissioned a three-member expert panel, which included Vint Cerf, one of the internet's founders, to advise him on the technological capability of identifying the geographic location of net users.

While the legal and jurisdictional implications are important, the internet considerations highlight the complexity associated with the online world and geographic borders

The panel responded that the technology at the time allowed for geographic identification at a 70 - 90% accuracy rate.

Yahoo, supported by several US civil liberties groups, was highly critical of the decision, arguing that complying with the order would force it to remove content that was protected under the First Amendment and was therefore lawful in the US.

Rather than appealing the French decision, however, the company chose to let the decision stand and to launch a lawsuit of its own in the US courts instead, seeking an order that the French decision could not be enforced on its home turf.

Although the French anti-racism groups never indicated an intention to enforce the decision in the US, the competing case established the potential for conflicting court decisions on the same issue. After a lower court judge agreed with Yahoo, it appeared that the case had reached a judicial stalemate.

Split decision

That changed earlier this month when the 9th Circuit Court of Appeals, a US appellate court, issued a 99-page split decision that asserted jurisdiction over the dispute but declined to provide Yahoo with its much-desired order.

Yahoo turned to the courts in the US

The decision can be assessed from three perspectives. From a purely legal point of view, the majority of the court determined that the free speech issues were not "ripe" for review, meaning that Yahoo failed to persuade the court that the French court order had limited its First Amendment rights.

It reached that conclusion in large measure because Yahoo had independently removed much of the offending content, suggesting that the company was not being forced to block legal materials.

From a jurisdictional perspective, the case signals an expansion of the standard under which US courts will assert jurisdiction over disputes that arise in other countries.

While the majority of the court expressed reluctance to export US free speech protections, it determined that it could assert jurisdiction over the case despite minimal connections to the US.

This determination brought a stinging dissent, which was troubled by the ramifications of US courts interjecting into foreign disputes.

Dated expertise

While the legal and jurisdictional implications are important, the internet considerations highlight the complexity associated with the online world and geographic borders.

For the majority of the court, the combination of the expert panel evidence and the decision by the French court to limit its restrictions to French users yielded the view that offline geographic borders can be applied to the internet.

The dissenting judges presented a much different view of the internet, concluding that the impact of the order could not be confined solely to France. Moreover, they were sceptical of the expert panel's evidence, deriding it as being "replete with hearsay, technological assumptions and disclaimers".

Ironically, the real problem with the expert evidence is not its degree of accuracy, but rather that it is now woefully out-of-date.

There have been significant advances in internet geolocation technologies, such that internet sites can identify with increasing accuracy the offline location of their online users.

The Yahoo France case resulted in nearly six years of litigation, numerous legal briefs, and much hand-wringing from the internet community.

Despite its notoriety, it would appear that the courts remain as conflicted as ever as they seek to reconcile the challenges of law, borders and the internet.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law.