Writing Sample_Yahoo Hybrid Law & Policy_Chris Hudon

1

To: Nicole Karlebach, Senior Legal Counsel, Business & Human Rights
From: Christopher Hudon, Legal Intern, Business & Human Rights
Re: Yahoo! Inc. v. La Ligue Contre le Racisme et L’Antisémitisme (LICRA)
Date: 08/24/2015
I. ABSTRACT
In light of the growing trend of governments attempting to enforce freedom of
expression-related rulings on the Internet beyond their own jurisdictions,1
it is important
to understand Yahoo! Inc. v. La Ligue Contre le Racisme et L’Antisémitisme
(“LICRA”), since it addressed that very issue. The LICRA case was one of the first to
confront jurisdictional, conflict of law and freedom of expression questions in the
Information and Communications Technology (“ICT”) sector. LICRA had several
chapters over many years. Stated loosely, LICRA involved a French court’s attempt to
apply a French law banning Nazi symbols to yahoo.com, an American website. Yahoo,
Inc. argued that the order violated the First Amendment and thus was not enforceable in
the U.S. There were three trials over six years, one in Paris and two in California.
LICRA raised important policy questions that remain relevant today. Decisions
regarding legal jurisdiction of the Internet will determine whether we live in a world
where one country can decide for others what content is available or accessible online. A
situation where individual governments could request global blocking or de-listing of
content could potentially alter the historical record and compromise the right to freedom
expression and the ability to impart information online.

1
For example, in recent months a U.S. judge has ordered Microsoft to produce user data stored on servers
in Dublin; France’s privacy watchdog has petitioned French courts to apply the Right To Be Forgotten
(“RTBF”) to Google’s U.S. domain, and the Dutch DPA has levied a 15 million Euro fine against
Facebook for allegations that the company’s new privacy policy violates the Dutch interpretation of
European privacy law. See Joseph Ax, Microsoft Ordered By U.S. Judge To Submit Customer's Emails
From Abroad, REUTERS (Thursday, July 31, 2014 1:33 PM EDT),
http://www.reuters.com/article/2014/07/31/us-usa-tech-warrants-idUSKBN0G024I20140731; Mark Scott,
France Wants Google To Apply ‘Right To Be Forgotten’ Ruling Worldwide Or Face Penalties, N.Y. TIMES
(June 12, 2015 6:54 AM EDT), http://bits.blogs.nytimes.com/2015/06/12/french-regulator-wants-google-
to-apply-right-to-be-forgotten-ruling-worldwide/?_r=0; Agence France Presse, Dutch Focus On Facebook
After Google Crackdown, THE TELEGRAPH (Dec. 16, 2014 10:51 GMT),
http://www.telegraph.co.uk/technology/facebook/11298111/Dutch-focus-on-Facebook-after-Google-
crackdown.html.

2

II. CHRONOLOGY OF FACTS
1. Early 2000: Yahoo, Inc. operated an online auction website accessible from
France, which, among other items, hosted Nazi memorabilia for sale.
2. April 5, 2000: Two Jewish civil society organizations—La Ligue Contre le
Racisme et L’Antisémitisme (“LICRA”) and L’Union des Étudiants Juifs de
France (“UEJF”)2
—sent a cease and desist letter to Yahoo, Inc.’s Santa Clara
headquarters informing Yahoo, Inc. that offering Nazi objects for sale was a
violation of French law. The letter stated that Yahoo, Inc. had eight days to
comply or else the groups would file a lawsuit in French court.3
3. April 10, 2000: Five (rather than eight) days after the date on the letter, LICRA
filed a civil suit against Yahoo, Inc. and Yahoo France in the Tribunal de Grande
Instance de Paris (“French High Court”).4
4. April 20, 2000: UEJF joined LICRA’s French lawsuit and U.S. marshals were
used to serve process on Yahoo, Inc. in California.
5. May 15, 2000: A hearing took place before the French High Court. Oral
arguments were heard.
6. May 22, 2000 – “First Interim Order”: The French High Court issued an
interim order stating that: [1] Yahoo, Inc. and Yahoo France had violated R645-1
of the French Criminal code, e.g. the “Nazi Symbols Act”, [2] that Yahoo, Inc.
was required to make access to unlawful Nazi material impossible from France,
and [3] that both entities were subject to a penalty of 100,000 Euros ($13,400) per
day of delay or per confirmed violation. The Court reserved the right to liquidate
these penalties.
7. November 20, 2000 – “Second Interim Order”: The French High Court issued
a second interim order reaffirming the May 22 order and requiring Yahoo, Inc. to
comply within three months subject to a “penalty of 100,000 Francs per day of
delay effective from the first day following expiry of the 3 month period.” The

2
LICRA
is
translated
as
the
“League
Against
Racism
and
Anti-‐Semitism”
and
UEJF
is
translated
as
the

“Jewish
Student
Union
of
France.”

3
Yahoo! Inc. v. La Ligue Contre Le Racisme Et L’Antisemitisme, 145 F. Supp. 2d 1168, 1172 (N.D. Cal.
2001)
4
Id.

3

May 22 order had specified a penalty of 100,000 Euros rather than 100,000
Francs. Yahoo, Inc. and Yahoo France did not appeal either order in French court.
8. December 21, 2000: Yahoo, Inc. filed a civil suit against LICRA and UEJF in in
the Northern District of California, seeking a declaratory judgment that the
interim orders of the French High Court were not recognizable or enforceable in
the United States.
9. ***Early 2001: After both interim orders were entered by the French High Court,
and after Yahoo, Inc. had filed suit in federal district court, Yahoo, Inc. adopted a
new policy5
prohibiting the use of auctions or classified advertisements on
yahoo.com “to offer or trade in items that are associated with or could be used to
promote or glorify groups that are known principally for hateful and violent
positions directed at others based on race or similar factors.”
10. November 7, 2001: The district court issued an opinion finding personal
jurisdiction over the foreign defendants. The Court also found the suit ripe, that
the dispute warranted an immediate decision, and that “the First Amendment
preclude[d] enforcement within the United States.” The district court also noted
that certain Nazi-area items (such as stamps and copies of Mein Kampf) were still
available through yahoo.com in violation of the French orders at the time of trial.
LICRA and UEJF appealed the decision to the 9th
Circuit Court of Appeals.
11. January 12, 2006: The 9th
Circuit dismissed the case for lack of ripeness given
the need for further factual development bearing on the legal question presented.6
The Court reasoned that since LICRA had affirmatively represented that it would
not seek to enforce the monetary fine as long as Yahoo, Inc. maintained its new
policies, the suit was not ripe for adjudication.7

5
The new policy prohibited sale of items typically associated with Nazism or the Ku Klux Klan. Official
government-issue stamps and coins were not prohibited under this policy. Expressive media, such as books
and films, were subject to more permissive standards determined by Yahoo, Inc. in its sole discretion.
Yahoo Auction Guidelines (retrieved Oct. 23, 2001) from http:// user.auctions.Yahoo.com/
html/guidelines.html.
6
Yahoo! Inc. v. La Ligue Contre Le Racisme Et L'Antisemitisme, 433 F.3d 1199, 1221 (9th Cir. 2006).
7
Id. at 1211 (“[E]ven if the French court finds a violation that warrants the imposition of a penalty,
enforcement of that penalty is extremely unlikely in the United States.”)(Emphasis added)

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III. SUMMARY OF PROCEEDINGS
A. Chapter One: Tribunal de Grande Instance de Paris
Chapter one began in 2000, when two French Jewish organizations filed a lawsuit
against Yahoo, Inc. and Yahoo France in the Tribunal de France Instance de Paris
(“French High Court”) for violations of the Nazi Symbols Act,8
which prohibits the sale
or display of Nazi symbols. At that time Yahoo, Inc. owned and operated an auction
website on yahoo.com, which was accessible from France, offering Nazi-era items for
sale. Yahoo, Inc. argued that these auctions targeted U.S. consumers and thus were
conducted under the jurisdiction of the U.S. The French High Court disagreed reasoning
that because any French citizen was able to access these materials on yahoo.com directly
or through a link on fr.yahoo.com, Yahoo, Inc. had violated R645-1 of the French
Criminal Code.9
A hearing was held on May 15, 2000 and the Court issued an interim
order on May 22 requiring that:
1. Yahoo, Inc. “take all necessary measures to dissuade and render impossible any
access [from French territory] via Yahoo.com to the Nazi artifact auction service
and to any other site or service that may be construed as constituting an apology
for Nazism or a contesting of Nazi crimes.”10
2. Yahoo, Inc. to “cease all hosting and availability in the territory of [France] from
the ‘yahoo.com’ site . . . of messages, images and text relating to Nazi objects,
relics, insignia, emblems and flags, or which evoke Nazism,” and of “web pages
displaying text, extracts, or quotes from ‘Mein Kampf’ and the ‘[Protocols of the
Elders of Zion]’ ” at two specified Internet addresses.11
3. Yahoo, Inc. to remove from “all browser directories accessible in the territory of
the French Republic” the “index heading entitled ‘negationists’ ” and any link

8
Art. R645-1, Code Pénal de France, available at
http://www.legifrance.gouv.fr/affichCodeArticle.do?idArticle=LEGIARTI000006419560&cidTexte=LEGIT
EXT000006070719
9
Yahoo!, Inc. v. La Ligue Contre Le Racisme et L'Antisemitisme, 169 F. Supp. 2d 1181, 1184 (N.D. Cal.
2001) rev'd, 379 F.3d 1120 (9th Cir. 2004) on reh'g en banc, 433 F.3d 1199 (9th Cir. 2006) and rev'd and
remanded, 433 F.3d 1199 (9th Cir. 2006)
10
Yahoo!, Inc. v. La Ligue Contre Le Racisme Et L'Antisemitisme, 433 F.3d 1199, 1202-03 (9th Cir.
2006)(emphasis in original).
11
Id.

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“bringing together, equating, or presenting directly or indirectly as equivalent”
sites about the Holocaust and sites by Holocaust deniers.12
4. Yahoo France (as distinct from Yahoo, Inc.) to remove the “negationists” index
heading and the link to negationist sites, described above, from fr.yahoo.com.
5. Yahoo France to post a warning on fr.yahoo.com stating to French users that, in
the event the user accessed prohibited material through a search on yahoo.com, he
or she must “desist from viewing the site concerned[,] subject to imposition of the
penalties provided in French legislation or the bringing of legal action against
him.”
The Court imposed a fine on Yahoo, Inc. and Yahoo France of $13,400 per day of
non-compliance after a period of three months. Yahoo, Inc. objected to the May 22 order,
arguing, “there was no technical solution which would enable it to comply fully with the
terms of the court order.”13
In response, the French High Court obtained a written report
from three IT experts. The report concluded that under current conditions at that time,
approximately 70% of Yahoo users operating from computer sites in France could be
identified. 14
The report specifically noted that Yahoo, Inc. already used such
identification of French users to display advertising banners in French. The 70% number
applied irrespective of whether a Yahoo user sought access to an auction site, or to a site
denying the existence of the Holocaust or constituting an apology for Nazism.15
In its second and final interim order, issued on November 20, 2000, the French
court reaffirmed its May 22 order and directed Yahoo, Inc. (but not Yahoo France) to
comply within three months, “subject to a penalty of 100,000 Francs per day of delay
effective from the first day following expiry of the 3 month period.”16
The Court
specifically stated in the November 20 order that it was not awarding any expenses or
costs against Yahoo France because it was found to have complied “in large measure”
with the Court’s interim order.17
Neither Yahoo, Inc. nor Yahoo France appealed either

12
Id.
13
Id. at 1203 (emphasis in original).
14
Id.
15
Id.
16
Id. at1203-04.
17
Id. at 1204.

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interim order in France.18
Ultimately, as of the time of filing in the U.S., no fine was
actually imposed on either Yahoo, Inc. or Yahoo France.
Chapter Two: N.D. California
Chapter two took place in the Northern District of California (“N.D.”). The
French High Court had not attempted to impose any penalty on Yahoo, Inc. or Yahoo
France for violations of either interim order as of December 21, 2000, when Yahoo, Inc.
filed civil suit in the N.D. of California seeking a declaratory judgment.19
After filing in
the N.D.—but before the case was decided—Yahoo, Inc. voluntarily changed its auction
policy to prohibit the sale of items typically associated with hateful ideologies, making
most, but not all, Nazi artifacts unavailable. In fact, neither LICRA nor UEJF returned to
the French court to seek the imposition of a penalty and both organizations affirmatively
represented to the district court that they had no intention of doing so if Yahoo, Inc. and
Yahoo France maintained their policies of blocking “negationist” websites on the French
domain and prohibiting the sale of Nazi memorabilia on the U.S. auction site.20
However,
neither LICRA nor UEJF was willing to go further and ask the French court to vacate its
orders.21
This left Yahoo, Inc. open to a large fine in the future. Later that year, the N.D.
ruled in Yahoo, Inc.’s favor holding the French High Court’s order unenforceable in the
U.S. since compliance would violate the First Amendment.
In deciding the case, the District Court framed the legal question as “whether it is
consistent with the Constitution and laws of the United States for another nation to
regulate speech by a United States resident within the United States on the basis that such
speech can be accessed by Internet users in that nation.”22
In their briefings, LICRA and UEJF did not argue that the French High Court’s
order could be enforced without chilling Yahoo, Inc.’s First Amendment rights, but
instead relied heavily on the fact that they were not seeking to have the orders enforced.23

18
Id.
19
Id.
20
Id.
21
Id.
22
Yahoo!, Inc. v. La Ligue Contre Le Racisme et L'Antisemitisme, 169 F. Supp. 2d 1181, 1186 (N.D. Cal.
2001) rev'd, 379 F.3d 1120 (9th Cir. 2004) on reh'g en banc, 433 F.3d 1199 (9th Cir. 2006) and rev'd and
remanded, 433 F.3d 1199 (9th Cir. 2006)
23
Id.

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LICRA and UEJF argued “there [wa]s no real or immediate threat to Yahoo because
[they] d[id] not presently intend to seek enforcement of the French order in the United
States.”24
The Court found this argument unpersuasive reasoning “phrases such as ‘all
necessary measures’ and ‘render impossible’ instruct Yahoo to undertake efforts that will
impermissibly chill and perhaps even censor protected speech.”25
Judge Jeremy Fogel held that: (1) Yahoo Inc.’s claims presented an “actual
controversy”; (2) the French court order presented a “real and immediate” threat to
Yahoo, Inc.’s First Amendment rights; (3) the Court would not abstain from deciding
declaratory judgment action; (4) the French order would not be recognized; and (5) the
French parties were not entitled to a continuance for further discovery.26
The district
court reasoned that the content and viewpoint-based regulation of the web pages and
auction site on yahoo.com clearly would be inconsistent with the First Amendment if
mandated by a court in the United States.27
Judge Fogel recognized that “the Internet in
effect allows one to speak in more than one place at the same time.”28
He reasoned that a
U.S. court “may not enforce a foreign order that violates the protections of the United
States Constitution by chilling protected speech that occurs simultaneously within [U.S.
and French] borders.”29
The Court posed a hypothetical involving a party physically
present in France engaging in expression that was illegal in France but legal in the United
States.30
Judge Fogel found it “unlikely that a U.S. court would or could question the
applicability of French law to that party’s conduct.” However, if the French court ordered
the party not to engage in the same expression in the United States on the basis that
French citizens (along with anyone else in the world with the Internet) later could read,
hear or see it, a U.S. court would not enforce such an order.31
Judge Fogel reasoned that
although the advent of the Internet had effectively “removed the physical and temporal

24
Id.
25
Id.
26
Id.
27
Id.
28
Id.
29
Id. (citing Matusevitch v. Telnikoff, 877 F. Supp. 1, 4 (D.D.C. 1995) (declining to enforce British libel
judgment because British libel standards “deprive the plaintiff of his constitutional rights”).
30
Id.
31
Id.

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elements” of the hypothetical, the legal analysis remained the same.32
The district court
granted Yahoo, Inc.’s motion for summary judgment and LICRA and UEJF appealed.33
B. Chapter Three: U.S. Court of Appeals for the Ninth Circuit
The final chapter of LICRA took place in 2006. LICRA and UEJF appealed the
N.D. decision to the 9th
Circuit, which dismissed the suit for lack of ripeness due to the
French Court’s finding of substantial compliance. However—and significant for future
cases34
—the Ninth Circuit indicated in dicta, that the order would have been found to be
unenforceable under the principle of legal comity, since U.S. courts typically do not
enforce the monetary judgments of foreign courts.
The Ninth Circuit framed the issue as: “whether a United States Internet service
provider, whose published content has been restricted by a foreign court injunction, may
look to the United States federal courts to determine the enforceability of those
restrictions under the United States Constitution’s First Amendment.”35
But before the
substantive question could be considered, the Court engaged in a lengthy jurisdictional
analysis, ultimately finding that the district court had properly exercised personal
jurisdiction over the foreign defendants.36
A majority of the court narrowly found a
proper exercise of jurisdiction on the basis of the “effects test,” Calder v. Jones, 465 U.S.
783 (1984), which is normally employed in purposeful direction cases.
The Ninth Circuit construed Calder to impose three requirements: “the defendant
allegedly [must] have (1) committed an intentional act, (2) expressly aimed at the forum
state, (3) causing harm that the defendant knows is likely to be suffered in the forum

32
Yahoo!, Inc. v. La Ligue Contre Le Racisme et L'Antisemitisme, 169 F. Supp. 2d 1181, 1193-94 (N.D.
Cal. 2001) rev'd, 379 F.3d 1120 (9th Cir. 2004) on reh'g en banc, 433 F.3d 1199 (9th Cir. 2006) and rev'd
and remanded, 433 F.3d 1199 (9th Cir. 2006)
33
Id.
34
This fact is significant because it means that a foreign court order limiting the First Amendment is not
likely to be enforced by a court in the United States. Both the N.D. and the Ninth Circuit would have held
the order unenforceable for differing reasons. Being aware of this fact, foreign regulatory agencies (such
the various Data Protection Agencies of Europe) will be forced to either find a novel argument for
enforcement of free speech restrictions in the U.S., or—more likely—target the local subsidiaries of major
tech organizations in their home countries.
35
Yahoo! Inc. v. La Ligue Contre Le Racisme Et L'Antisemitisme, 433 F.3d 1199, 1233-34 (9th Cir.
2006)(Fisher J., concurring in part and dissenting in part).
36
Id. at 1211.

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state.”37
Under this analysis, the Court concluded that “the first two factors, taken by
themselves, d[id] not provide a sufficient basis for jurisdiction.”38
However, the third
prong—read in conjunction with the first two—narrowly provided the basis for personal
jurisdiction.39
Although both LICRA and UEJF had affirmatively represented that they
did not intend to pursue the monetary fines authorized under the French court orders, the
possibility of doing so, coupled with using U.S. Marshalls to serve process on Yahoo,
Inc. in California, gave the Court jurisdiction.40
The Court reasoned “considering the
direct relationship between LICRA and UEJF’s contacts with the forum and the
substance of the suit brought by Yahoo, Inc., as well as the impact and potential impact
of the French court’s orders on Yahoo, Inc.” there was a sufficient basis for personal
jurisdiction.41
After resolving the jurisdictional question, the Court considered whether the suit
was ripe for adjudication, given that neither LICRA nor UEJF had attempted to enforce
the monetary fines on Yahoo, Inc. Ultimately, a plurality of the panel concluded that the
case “[wa]s not ripe [for adjudication] under the criteria of Abbott Laboratories v.
Gardner, 387 U.S. 136, 149 (1967).”42
Because the imposition of fines was highly
speculative, the Court found that more factual development were needed to decide the
question at issue. Although the Court found the suit unripe, it went on to address in part
the First Amendment arguments briefed by Yahoo, Inc. and found persuasive by the
district court below. Yahoo, Inc. framed the legal issue as “whether France ha[d] the right
to regulate websites located in and targeting the U.S. because it disagree[d] with the way
the Constitution and Congress protect the speech interests at stake.”43
Yahoo, Inc. argued
in its appellate brief that enforcing the French court order would mean that “the free
speech rights of all American Internet service providers–indeed, of all Americans using
the Internet–[would be] subject to censorship by foreign governments, who will be able
to order Americans to conform their speech to comply with the restrictive speech laws of

37
Id. at 1206 (internal citation omitted).
38
Id. at 1208.
39
Id.
40
See generally, Yahoo! Inc. v. La Ligue Contre Le Racisme Et L'Antisemitisme, 433 F.3d 1199, 1211 (9th
Cir. 2006).
41
Id.
42
Id. at 1201.
43
Yahoo! Inc. v. Le Ligue Contre Le Racisme, Appelllee Answer Brief, 2 n. 1, 2002 WL 32302222

10

their nations.” Another important theme that ran throughout Yahoo, Inc.’s submissions
was the so-called “slippery slope” argument. Yahoo, Inc. argued that one small erosion of
free speech could result in a greater erosion of the right over time. Counsel for Yahoo,
Inc. reasoned that “it is tempting to forget this when the regulated speech is repugnant,
but the principle would be no different if China ordered Yahoo to insure that its citizens
who access Yahoo’s U.S. site are not exposed to American political ideas, or if Cuba
ordered U.S. ISPs to bar access to anti-Castro teachings.”44
Where the Ninth Circuit differed substantially from the district court was on the
issue of whether the orders, by their explicit terms, required Yahoo, Inc. to restrict access
by Internet users located only in France or also access by U.S. users.45
The Court
concluded that the French orders applied by their express terms only to access by users in
France.46
This left Yahoo, Inc.’s First Amendment argument unresolved, since the Ninth
Circuit found no immediate threat to Yahoo, Inc.’s free speech rights. However, had the
Court reached the merits of enforcing the French order in the U.S., the order would have
been held unenforceable for the reasons of comity mentioned above.47
Comity holds that
no legal judgment has any effect, of its own force, beyond the limits of the sovereignty
from which its authority is derived.48
The extent to which the U.S., or any state, honors
the judicial decrees of foreign nations is a matter of choice, governed by “the comity of
nations.”49
Comity “is neither a matter of absolute obligation, on the one hand, nor of
mere courtesy and good will, upon the other.”50
Courts in the United States will generally

44
YAHOO! INC., a Delaware corporation, Plaintiff-Appellee, v. La LIGUE Contre le Racisme et
L’antisemitisme, a French Association; L’union des Etudiants Juifs De France, a French association,
Defendants-Appellants., 2002 WL 32302222 (C.A.9), 1-2.
45
See Yahoo! Inc. v. La Ligue Contre Le Racisme Et L'Antisemitisme, 433 F.3d 1199, 1221 (9th Cir.
2006).
46
Id. (“We emphasize that the French court's interim orders do not by their terms require Yahoo! to restrict
access by Internet users in the United States. They only require it to restrict access by users located in
France.”)
47
Id. at 1211 (“Enforcement is unlikely not because of the First Amendment, but rather because of the
general principle of comity under which American courts do not enforce monetary fines or penalties
awarded by foreign courts.)
48
28 U.S.C. § 1738.
49
Hilton v. Guyot, 159 U.S. 113, 163 (1895).
50
Id. at 163-64.

11

recognize foreign judgments and decrees unless enforcement would be prejudicial or
contrary to the country’s interests.51
The Court found speculative Yahoo, Inc.’s argument that restricting access by
French Internet users in a manner sufficient to satisfy the French court would “in some
unspecified fashion [have] require[d] Yahoo [to] simultaneously [] restrict access by
Internet users in the United States.”52
The Court reasoned that this argument was almost
“certainly not true” if Yahoo, Inc. was complying “in large measure” with the French
court’s orders, and that further compliance was likely not required.53
IV. CONCLUSION
The LICRA case presented novel and complex jurisdictional and conflict of law
questions at the beginning of the digital age that remain relevant today. Although the
Ninth Circuit dismissed the substantive issues in this case for lack of ripeness, Yahoo,
Inc.’s counsel extensively briefed the Court on the constitutional questions raised. Of
particular interest in LICRA was the fact that Yahoo, Inc. argued that it was impossible to
achieve 100% compliance with the French court orders (e.g., no Nazi website would be
accessible from French territory through either fr.yahoo.com or yahoo.com) without
restricting access for U.S. citizens also, since there was no technical way to identify
100% of users accessing the U.S. domain from France. Yahoo argued that the only way
to be 100% sure that no Nazi material would be accessible from France would be to make
it inaccessible on the U.S. domain—that is the one targeting U.S. consumers and
governed by the First Amendment, e.g. yahoo.com. The Ninth Circuit did not favor this
argument, since the technical reasons for it remained unclear to the Court and the French
High Court had already agreed that Yahoo France was in substantial compliance with the
letter and spirit of the order.

51
Somportex Ltd. v. Philadelphia Chewing Gum Corp., 453 F.2d 435, 440 (3d Cir.1971) cert. denied, 405
U.S. 1017 (1972); Laker Airways v. Sabena Belgian World Airlines, 731 F.2d 909, 931 (D.C. Cir. 1984)
(“[T]he court is not required to give effect to foreign judicial proceedings grounded on policies which do
violence to its own fundamental interests.”); Tahan v. Hodgson, 662 F.2d 862, 864 (D.C. Cir.
1981)(“[R]equirements for enforcement of a foreign judgment expressed in Hilton are that . . . the original
claim not violate American public policy . . . that it not be repugnant to fundamental notions of what is
decent and just in the State where enforcement is sought.”)
52
Yahoo! v. La Ligue Contre Le Racisme 433 F.3d 1199, 1216 (9th Cir. 2006)
53
Id.

12

In LICRA it was technically feasible to restrict access to Nazi content within
France (at least to the point of substantial compliance as determined by the French High
Court), however, one can imagine other similar situations where the only solution would
be censorship across a U.S. domain. In such an instance, the same issues Yahoo, Inc.
complained of in the LICRA case would arise again. For example, in May 2014, the
European Court of Justice (“ECJ”) issued a ruling articulating a so-called “right to be
forgotten” (the “RTBF”). As of the time of writing, the RTBF has only been applied to
country specific domains in the European Union. However, in June 2015, the
Commission Nationale de l'Informatique et des Libertés (“CNIL”)—the French data
protection authority—petitioned European Courts to require Google to apply search de-
listings across its U.S. domain as well (e.g., google.com). If the CNIL were to be
successful, the result would potentially be global delisting of search results that fit certain
criteria specified by the ECJ (“appear to be inadequate, irrelevant or no longer relevant or
excessive in the light of the time that had elapsed”)54
on google.com, a website that uses
U.S. data servers, run by a U.S. corporation, with its primary place of business in
California. If a European court were to hold that the RTBF applied to all domains
including .com, and subsequently served process on Google Inc. in California, the very
same questions presented in the LICRA case would appear.
While the RTBF may be appealing in Europe where the rule of law is generally
strong, imagine the implications of such power in countries where the rule of law may not
be as strong as in Europe. For example, since the ECJ’s decision articulating the RTBF,
the governments of Mexico and Hong Kong have expressed interest in creating such a
right in their countries. Their judicial systems may be considered somewhere between the
rule of law in Europe and that in truly repressive regimes. However, take this notion a
step further and imagine countries like Saudi Arabia, Iran, and North Korea asking for
similar treatment. Their interpretations of what information should be blocked or delisted
on the Internet would most likely not comport with American free speech norms.
Moreover, in order to ban web access to illegal ideas in their countries, those ideas would
have to be censored on U.S. domains. As Internet penetration reaches an all time high,
the governments of the world are once again attempting to control what information will

54
Case C‑131/12 (Costeja v. Goolge), Court of Justice of the European Union at ¶ 93.

13

be available and accessible online worldwide. Whether they will be permitted to do so is
a question that remains open to debate.

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