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

In.Law | 6 (2006) | 291
Semitism, la Ligue contre le Racisme et l’Antisémitisme and l’Union des Etudiants
Juifs de France, first filed this lawsuit. 33 The defendants were Yahoo! Inc., a US
firm, and Yahoo! France, a French firm. The complaint against these firms was
based on the fact that internet users in France that logged on to the US Yahoo!
Auction site had an access to the Nazi-related items on sale. In France, “[E]xcept
as needed for film-making, theatrical performances and historical expositions, it
is a crime to wear or exhibit in public a uniform, insignia or emblem resembling
the uniforms, insignias or emblems worn or exhibited” by the Nazi-related
organizations according to Article R645-1 of the Penal Code. 34 So was displaying
and selling the Nazi-related items in an auction site.
The Tribunal de Grande Instance in Paris decided in May 2000 that it had
jurisdiction on this case on the following basis: “[B]y permitting [anti-Semitic]
objects to be viewed in France and allowing surfers located in France to participate
in such a display of items for sale, the Company Yahoo! Inc. is therefore committing
a wrong in the territory of France, a wrong whose unintentional character is
averred but which has caused damage to be suffered by LICRA and UEJF, both of
the framework of public international law are discussed. The decisions concerning the substance of
the cases are not examined. For the same reason, the cases before the US courts are described in this
footnote but not discussed further. After the decision on 20 November 2000 (Yahoo! Auction case
(1b), see infra., note 37), Yahoo! Inc. decided not to pursue the matter in France, and instead, filed
a suit in the US District Court for the Northern District of California. The court affirmed jurisdiction
on 7 June 2001 (145 F. Supp. 2d 1168, N.D. Cal. 2001), and Yahoo! Inc. succeeded in obtaining
a summary judgment on 7 November 2001 to the effect that the orders of the French court were
not recognizable or enforceable in the United States (169 F. Supp. 2d 1181, N.D. Cal. 2001). The
reason for this judgment was the incompatibility of the French court orders with the First Amendment
of the US Constitution. Thereupon, the two French organizations that had sued Yahoo! Inc.
in France appealed to the US Court of Appeals, California. The court decided on 23 August 2004
that it did not have jurisdiction, on the grounds that it lacked personal jurisdiction over the two
French organizations (379 F.3d 1120, 9 th Cir. 2004). A rehearing of this judgment was decided on
10 February 2005 (399 F.3d 1010, 9 th Cir. 2005). The decision on 12 January 2006 [hereinafter
referred to as the Yahoo! v. LICRA case (2006)] finally turned down the request of Yahoo! Inc. (For
an analysis, see Andrew M. Pickett, Much Yahoo! About Nothing: The Ninth Circuit, Jurisprudential
Schizophrenia, and The Road Not Taken in Yahoo! Inc. v. La Ligue Contre le Racisme et l’Antisémitisme,
8 Tul. J. Tech. & Intell. Prop. (2006), pp. 231-45). The text of the Yahoo! v. LICRA case (2006) is
available at http://www.ca9.uscourts.gov/ (last visited on 14 February 2006).
33 The lawsuit was an action civile, in which the party asks for a compensation of damage aris-
ing from a crime.
34 The translation of the French Penal Code is available at http://www.legifrance.gouv.fr/, but
Partie Réglementaire – Décrets en Conseil d’Etat in which this article appears is not included in the
English translation (last visited on 15 November 2006).