Objective Territorial Principle or Effects Doctrine? Jurisdiction and ...

In.Law | 6 (2006) | 297
ing an apology for Nazism or a contesting of Nazi crimes.” 61 Faced with this order,
Yahoo! Inc. argued that filtering of users located abroad in order to comply with
the order was technically difficult, if not impossible. The panel of experts that
conducted a feasibility study concluded, however, that such filtering was technically
possible: it was possible to block 70% of the access from France to the sites
in question. 62 The panel of experts further believed that the blocking rate would
be as high as 90% if the website required the internet users to declare their location.
Given this assessment, the Tribunal de Grande Instance reaffirmed its earlier
order. 63 The court orders that assume the use of this filtering technique constitute
neither the acceptance of the absence of territories in cyberspace nor the interference
into world-wide activities of Yahoo! Inc. 64 On the contrary, they reflect
a sense of territory in cyberspace, a simulation of the traditional environment in
which the established principles of jurisdiction could function. The sense of territory
of the Tribunal de Grande Instance is also clear in the expressions it uses:
Yahoo! Inc. is ordered “to prevent surfers calling from France from viewing these
[anti-Semitic] services on their computer screen”; “to identify the geographical
origin of a visiting site from the caller’s IP address, which should enable it to
prevent surfers calling from France . . . from accessing services and sites which[,]
when displayed on a screen installed in France[,] . . . is liable to be deemed an offence
in France and/or to constitute a manifestly unlawful trouble [under French
law]”; and “to take all measures to dissuade and make impossible any access by a
surfer calling from France to disputed sites and services of which the title and/or
content constitutes a threat to internal public order.” 65 This effort of restraining
the scope of the orders is indeed very consistent in French jurisprudence. Since
the Yahoo! Auction case (1a), the orders issued vis-à-vis internet companies abroad
61 Yahoo! Auction case (1a), supra note 35. The translation of the order is taken from the Yahoo!
v. LICRA case (2006), supra note 32.
62 Yahoo! Auction case (1b), supra note 37. Details of this expert opinion are presented in Mur-
phy, supra note 60, pp. 418-20.
63 Yahoo! Auction case (1b), supra note 37.
64 For the expression of such a concern, see Horatia Muir Watt, Yahoo! Cyber-Collision of Cultures:
Who Regulates?, 24 Mich. J. Int’l L. (2003), p. 692; Mark S. Kende, Yahoo!: National Borders
in Cyberspace and Their Impact on International Lawyers, 32 N.M. L. Rev. (2002), p. 8; Andreas
Manolopoulos, Raising “Cyber-Borders”: The Interaction Between Law and Technology, 11 Int’l J.L. &
Info. Tech. (2003), pp. 43-44.
65 The translation with these emphases is taken from the Yahoo! v. LICRA case (2006), supra
note 32.