Designer Skin LLC v. S & L Vitamins, Inc., et al.
Yahoo, Inc. v. La Ligue Contre Le Racisme et L'Antisemitisme, et al
145 F. Supp. 2d 1168, Case No. C-00-21275JF (N.D. Ca., September 24, 2001)
United States District Court issues a declaratory judgment declaring unenforceable in the United States an order of a French Court which, inter alia, directs that Yahoo Inc., under threat of continuing penalties, prevent French citizens from accessing Nazi items offered for sale by third parties on Yahoo.com's auction site, and "to take all necessary measures to dissuade and render impossible any access 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." Court issues such relief because of its determination that enforcement of this order would violate Yahoo's First Amendment rights.
Court holds that the prerequisite for the issuance of declaratory relief, the existence of an actual case or controversy, have been met as a result of the threat of enforcement of the French Court's order, and the ongoing penalties associates therewith. The Court also rejects defendants' contention that appropriate application of the abstention doctrine obligated the Court to refrain from resolving the instant litigation. Because the action seeks to litigate a question most properly decided by a United States court - namely the enforceability of the French Court's order in the United States - and not to relitigate the issue before the French court (whether Yahoo's site runs afoul of French law) the court declined to abstain from resolving it. Nor did principles of comity require the enforcement of the French Court's order, because to do so would run afoul of the United States' policies embodied in the First Amendment of the United States Constitution.
Yahoo Inc. ("Yahoo") operates a number of web sites, including an auction site and search engine directory at Yahoo.com and a regional site at Yahoo.fr. The sites operated at Yahoo.com are written in English, while the site operated at Yahoo.fr is written in French.
Various third parties posted for sale on Yahoo's auction site Nazi-related propaganda and Third Reich related memorabilia, including Adolf Hitler's Mein Kampf and The Protocol of the Elders of Zion (an infamous Anti-Semitic report). In April, 2000 defendant La Ligue Contre Le Racism Et L'Antisemitisme ("LICRA")1, a non-profit organization dedicated to eliminating Anti-Semitism, sent a 'cease and desist' letter to Yahoo, informing Yahoo that the advertisement and/or sale to French residents of Nazi and Third Reich related goods through Yahoo's auction site violated French law.
Defendant LICRA, joined by defendant L'Union Des Etudians Juifs De France,2 another non-profit organization dedicated to eliminating Anti-Semitism, thereafter commenced an action against Yahoo in French court. The French court found that approximately one thousand Nazi and Third Reich related materials were offered for sale on Yahoo.com's auction site. Because French citizens could access these auctions via links on Yahoo.fr, the French Court concluded that Yahoo.com's auction site violated section R645-1 of the French Criminal Code, which prohibits the exhibition of Nazi propaganda and artifacts for sale. As a result, the French court issued an order ("French Order"):
requiring Yahoo to (1) eliminate French citizens' access to any material on the Yahoo.com auction site that offers for sale any Nazi objects, relics, insignia, emblems, and flags; (2) eliminate French citizens' access to web pages on Yahoo.com displaying text, extracts, or quotations from Mein Kampf and the Protocol of the Elders of Zion; (3) post a warning to French citizens on Yahoo.fr that any search through Yahoo.com may lead to sites containing material prohibited Section R645-1 of the French Criminal Code, and that such viewing of the prohibited material may result in legal action against the Internet user; (4) remove from all browser directories accessible in the French Republic index headings entitled "negationists" and from all hypertext links the equation of "negationists" under the heading "Holocaust." The order subjects Yahoo! to a penalty of 100,000 Euro for each day it fails to comply with the order.
The order concludes: "We order the Company YAHOO! Inc. to take all necessary measures to dissuade and render impossible any access 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."
This order was reaffirmed by the French court on November 20, 2000, despite Yahoo's contentions that compliance with the French Order was technologically impossible. The French court directed Yahoo to comply with its order within three months, or face a penalty of 100,000 francs (approximately U.S. $13,300) per day.
Yahoo subsequently posted the required warning, and prohibited postings in violation of Section R645-1 of the French Criminal on its Yahoo.fr site. Yahoo also amended its auction policy to prohibit auctions of items that "promote, glorify or [are] directly associated with ... Nazis ...". Notwithstanding this change in policy, there were still items for sale on Yahoo's auction site which violate the French Order. In addition, Yahoo did not prevented access from it site's search engine/directory to other sites which "may be construed as constituting an apology for Nazism or a contesting of Nazi crimes."
Yahoo thereafter commenced an action in the United States District Court for the Northern District of California, seeking a declaratory judgment that the French Order could not be enforced in the United States under the laws of the United States. On Yahoo's motion for summary judgment, the court, as explained more fully below, granted Yahoo's motion.
As framed by the court:
After deciding that this question must be answered by application of United States law, the court held the enforcement of the French Order would run afoul of the First Amendment. The French Order, prohibiting the sale of Nazi related items, is a content based restriction that "a United States court constitutionally could not make...". As recognized by the Court "the First Amendment does not permit the government to engage in viewpoint-based regulation of speech absent a compelling governmental interest, such as averting a clear and present danger of imminent violence" which compelling interest was not present in this case.
The French Order further ran afoul of the First Amendment because it was impermissibly vague insofar as it directed Yahoo to "take all necessary measures to dissuade and render impossible any access 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...".
The Court found that there was a substantial controversy between parties having adverse legal interests of sufficient immediacy and reality to warrant the issuance of a declaratory judgment. Yahoo was faced with a valid order of a French court which prohibited it from engaging in certain conduct upon pain of financial penalty. The uncertainty Yahoo faced as to whether the remedial actions it had undertaken were sufficient to meet the mandates of the French Order "is the precise harm against which the Declaratory Judgment Act is designed to protect."
The Court rejected defendants' contention that application of the abstention doctrine mandated that the court refrain from resolving the issues before it. While abstention is an appropriate remedy for international forum shopping, such was not the case here. Before the United States court was an issue - the enforceability of the French Order in the United States - most appropriately determined by a United States court. Importantly, it was not the same issue the French Court faced - whether Yahoo's conduct ran afoul of French law - which Yahoo was not seeking to relitigate. The Court accordingly declined to abstain from rendering a determination of the action.
Lastly, the Court determined it was not obligated, under principles of comity, to enforce the French Order given its conflict with the important United States policy considerations reflected in the First Amendment. Said the Court:
The Court accordingly declared the French Order unenforceable in the United States.
1 The League Against Racism and Anti-Semitism.
2 The Union of Jewish Students of France.