France vs. Yahoo, Round 3

by on August 24, 2004

CNet News is reporting that the another chapter has been added to the ongoing saga between Yahoo and French regulators over what can be viewed or sold over online networks. You may remember that several years ago the French got angry because some knuckleheads were selling Nazi memorabilia over the Net via Yahoo’s site.

Consequently, a French court ordered Yahoo to find a way to prevent French citizens from accessing auctions of Nazi memorabilia. Yahoo asked a U.S. federal judge to block the French court’s ruling – – citing not only its free speech rights both also the impossible hassle associated with trying to quarantine French citizens from the rest of the world – – and the company eventually prevailed.

But, on procedural grounds, the Ninth Circuit Court of Appeals overturned that decision yesterday. Basically the court said that the California judge who issued the previous ruling didn’t have the right to hear the case.

But that cuts right to the core of the problem here: Exactly who does have the right to hear such a case? The Internet, after all, is a global, borderless medium. While the Ninth Circuit may be right in saying a California judge shouldn’t be making such decisions, the same logic could be used to against the judges in France.

And so we come back to the question that continues to haunt countless companies who do business online: “Who Rules the Net?” (At this point I’ll put in another shameless plug for my book of the same name. Check out the introduction here.) Also, my good friend Robert Corn-Revere, one of America’s finest First Amendment scholars, wrote this fine piece on the Yahoo case for Cato two years ago.

My fear with this latest ruling is that this is just another step toward an eventual “U.N. for the Internet.” As my “Who Rules the Net?” book points out, there are several other possible ways to solves such disputes without resorting to a global Internet bureaucracy or super-regulator. But lowest common denominator solutions typically prevail in a political world and I think a lot of people will start flocking to such a model to gain added power over the Net and global electronic commerce and speech.

I hope I’m wrong.

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