| Section I |
On-Line Issues: D |
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D. Enforceability of Foreign Court Order at Issue in Yahoo! Dispute
Background
A French court, at the behest of a French organization opposing racism
and anti-Semitism, issued an order to “take all necessary measures” to
“dissuade and render impossible” any access by French Internet users to
the English language Yahoo! auction site displaying Nazi memorabilia.
A later order of the French court directed Yahoo! under criminal
penalty to re-engineer its content servers in the United States, to enable
them to recognize French Internet Protocol (IP) addresses and block access to
Nazi material by end-users assigned such IP addresses.
The French group (known by the acronym LICRA) then utilized the U.S.
Marshal’s Office for the Northern District of California to serve Yahoo! in
Santa Clara with the French court’s order.
The order was served and Yahoo! brought suit in U.S. district court,
seeking a declaratory judgment that the French order was unenforceable in the
United States because it violated the First Amendment. District Court Denies Motion To Dismiss
The defendants moved to dismiss Yahoo!’s action, asserting that an
American court had no jurisdiction over them.
The U.S. District Court for the Northern District of California denied
the motion, finding the “minimum contacts” between the defendants and the
forum jurisdiction required by International
Shoe Co. v. State of Washington, 326 U.S. 310 (1945), for specific
jurisdiction.
The trial court applied the “effects” standard of the U.S. Court of
Appeals for the Ninth Circuit. The
court held that the nonresident defendants affected the federal jurisdiction
by attempting to enforce a foreign court’s order that violated the First
Amendment to the detriment of the plaintiff Yahoo!, known to be a resident of
the forum state.
The sufficient contacts to satisfy the Due Process Clause included: (1)
LICRA’s “cease and desist” letter to Yahoo!’s Santa Clara
headquarters; (2) the defendants’ request of the French Court, which was
granted, that Yahoo! be required to perform specific physical acts in Santa
Clara (e.g., re-engineering its
Santa Clara-based servers); and (3) the defendants’ use of U.S. marshals to
effect services of process on Yahoo! Ruling Not Enforceable
“Although France has a sovereign right to regulate what speech is
permissible in France,” Judge Fogel wrote, “this Court may not enforce a
foreign order that violates the protections of the United States Constitution
by chilling protected speech that occurs simultaneously within our borders.”
Id.
The U.S. district court order denying the motion to dismiss, and the
court’s eventual ruling against enforcement, seem soundly based from both
First and Fifth amendment standpoints. These
actions suggest that foreign residents will have a very hard time enforcing
foreign judgments against American ISPs that are or appear to be in
contravention of the First Amendment.
In an earlier case, for example, Maryland and federal courts ruled that
an English libel judgment was inimical to the laws of libel and press freedom
of Maryland, and that enforcement would be contrary to public policy as
expressed in the Maryland and U.S. constitutions.
Telnikoff v. Matusevich, 347 Md. 561, 702 A.2d 230 (1997), conforming
to judgment of Maryland Court of Appeals, 1998 U.S. App. LEXIS 556 (D.C.
Cir. May 5, 1998). |
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| --Harvey L. Zuckman | |||
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