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Court's Opinion.
.....I, the President of the Court,
[1] Considering the terms of my
ordinance [injunction against Yahoo!] of May 22, 2000, to which
it is appropriate to refer expressly, whereby I ordered:
.....1 / Yahoo Inc: to take all
appropriate measures in order to deter and prevent any [Internet]
visit to the .........service of
auction sales of Nazi items on Yahoo.com and to any other site
or service which constitutes .........an
apology for nazism or a contention about nazi crimes;
.....2 / Yahoo France: to give any
internaut [user], before he opens the link enabling him to proceed
with .........searches on Yahoo.com,
a notice informing him about the risks he takes by going on visiting
such sites;
.....3 / the pursuance of the case
to allow Yahoo Inc to debate contradictorily the measures it
intends to take .........in order
that disorder and suffered damage are ended and that any further
disorder is prevented;
........................................................................
. . .
[2] Considering the conclusions
developed by Yahoo France as well as by Yahoo Inc. for their
defence and aiming to fulfill the purposes mentioned in my previous
ordinance;
.....Considering the report from
the consultants Wallon - Vinton Cerf - Laurie [below];
.......................................................................
. . .
.....After having heard the State
Attorney's oral conclusions;
.....After considering the documents
submitted by the parties;
.....After having heard Mr Vinton
Cerf's oath as an unregistered expert, and Mr Norek's oath, as
a registered expert though intervening in the present case as
a translator in English language beside Mrs Kinder, an expert
registered in the specialty;
[3] On the claims directed
against Yahoo Inc.
[4] Whereas Yahoo Inc argues
that:
- this Court has no jurisdiction to decide upon the case;
- there does not exist any technical means to satisfy the terms
of the ordinance [this court's original order] of
..May 22, 2000;
- assuming that such means might exist, their implementation
would generate an over cost for Yahoo Inc., .which
would even put at risk and would endanger in a certain way the
existence of the Internet network, a .space
of freedom, reluctant to attempts for its control and restriction
to its access;
[5] Whereas to support its exception
concerning non-jurisdiction, reiterated for the third time, Yahoo
Inc. argues that:
- its services are rendered essentially to internauts located
in the territory of the United States of America;
- its servers are installed in this same territory;
- a coercitive measure against the company could not be enforced
in the United States because such a .measure
would be contrary to the First Amendment of the Constitution
of the United States, which .guarantees
to any citizen the right of freedom of thought and expression;
[6] Whereas, if it is true that
the site "Yahoo Auctions" is in general addressed mainly
to internauts based in the United States, having regard among
other things to the nature of items for sale, methods of payment,
delivery terms, language and currency used, that is not true
concerning items representing symbols of the nazi ideology, which
can be of interest and are accessible to any person who wishes
to bid, including the French;
[7] Besides, as that has already
been judged, merely sighting such objects in France is a violation
of article R.645-1 of the penal code and is therefore against
the country's public policy;
[8] Moreover, looking at such
objects causes obviously a wrong in France to the plaintiffs,
who have grounds to claim that it be ended and they be indemnified;
[9] Whereas at last Yahoo is aware
that it addresses to French internauts, since in reply to a connection
to its auction site opened from a computer located in France,
there are in response advertising banners written in French language;
[10] A tying link of the present
case with France is consequently sufficiently characterized,
which gives this Court full jurisdiction to hear the claims from
the plaintiffs;
[11] The possible difficulties
of enforcing the Court's decision in the territory of the United
States, invoked by Yahoo Inc. do not by themselves justify a
claim of lack of jurisdiction;
[12] That such exception [by
Yahoo! to jurisdiction] will therefore be rejected;
[13] Whereas, regarding the argument
developed by Yahoo and derived from the impossibility to implement
technical means such as to satisfy the terms of the ordinance
of May 22, 2000, it is at first necessary to quote the conclusions
of the group of consultants appearing on pages 62 through 76
of their report:
Opinion of the consultants
Preamble
The undersigned consultants want to stress that their duties
were limited to answer to the technical questions asked by the
Court. Their answers could in no event be construed as endorsing,
technically or morally, the Court's decisions or, on the contrary,
as criticizing them.
Context
The companies Yahoo! France and Yahoo! Inc. have been condemned
[ordered] on May 22, 2000 by the Court of Great Instance of Paris
in the following terms:
[14] "Order Company Yahoo!
Inc. to take all appropriate measures to deter and prevent any
visit to the auction sales service of nazi items on Yahoo.com
and to any other site or service which constitutes an apology
for nazism or a contention about nazi crimes; "Order Company
Yahoo ! France to give to any internaut,
before he opens the link enabling him to proceed with his searches
on Yahoo.com, a notice informing him that, if the result of his
search, coming either from a tree structure or from key words,
leads him to point to sites, pages or forums, the title and/or
contents of which constitute a violation of the French law, which
is the case in consulting sites which contain an apology of nazism
and/or exhibiting uniforms, badges, emblems reminding those which
were carried or exhibited by nazis, or offering for sale objects
and works the sale of which it strictly prohibited in France,
then he must stop the consultation of the site concerned, lest
he incurs
the penalties provided for by the French law or has to defend
against legal actions which might be initiated against him."
[15] Company Yahoo ! France says
that it has complied with the decision. Company Yahoo ! Inc makes
the point that there was no technical solution enabling it to
fully comply with the Court's decision.
[16] A group of consultants was
then appointed to enlighten the Court about the various technical
solutions which could be implemented by Yahoo! Inc. in order
to comply with the decision of May 22 .
Internet
[17] Internet is a combination of
several hundreds of millions of digital networks and associated
sites which are interconnected in the world. The routers are
computers dedicated to the interconnection of these networks.
One estimates at one hundred millions the number of computers
using Internet and at three times more, when including in the
number laptop computers, desktop computers, organizers, mobile
phones, etc.
[18] A set of procedures was
defined from 1973 through 1980, under the control of the research
laboratories of the American army (DARPA). These procedures,
known under the name of TCP/IP [Internet Protocol], are the heart
of several hundreds of protocols used on Internet.
[19] In the end of the nineteen-eighties,
CERN conceived the Web (www) which uses additional procedures,
protocols http and html language, to set up a global system for
sharing information.
[20] The most usual applications
include electronic mail (email), forums (news group), dialogue
services (chat), services for auction sales, telephone, video
and audio on line and many others.
[21] A widespread error consists
in saying that all Internet services are performed by the Web.
Actually, the Web is only one of the facets of Internet.
[22] Internet, which started
like an experimental project used and developed by researchers
in data processing, has become in ten years a worldwide business.
The Internet services providers (ISP) have built and exploit
networks opened to the public. The private networks of universities,
companies, and even the home computers, are interconnected by
the internet services providers in a global network. Some services
providers specialized in the supply to users of an access to
the commutated telephone network. Others specialized in the supply
of access to users of cable television, to users of numeris (ISDN),
to users of ADSL
services, local loop, etc. These services providers are generally
named Internet Services Providers. They offer also various services,
electronic mails, information, etc.
............................................................................
. . .
[23] This structure is not very
convenient and a system has been set up to allow association
of a name to an address. The names, each one corresponding to
an address, are called domain names. The conversion of a domain
name into a numerical IP address is made through a group of data
bases spread on Internet (DNS). The DNS servers proceed along
a tree structure and are specialized according to the kind of
services offered (com, org, edu, gov, etc.) and according to
countries (fr, uk, sf, etc).
[24] But, it must be well understood
that there are no rules of correspondence between the countries
appearing in the domain name and the numerical IP address. For
instance www.yahoo.fr does not correspond to an IP address of
a French network.
[25] Consequently, the extension
of the domain name does not make it possible to determine which
is the network to which belongs the numerical IP address.
[26] On the other hand, the allocation,
insured originally by MANA and later by ICANN, of IP addresses
granted to suppliers of Internet services (ISP) follows a tree
structure going for example from the main network, to the sub-network,
to the access provider and then to the local user. [ICANN's
Uniform Domain-Name Dispute-Resolution Policy website
is: <http://www.icann.org/udrp/udrp.htm>.]
[27] One can go up from a certain
IP address to the access provider, the sub-network and the main
network.
[28] Consequently, some organizations
and some providers maintain data bases enabling them to find
out the co-ordinates of a network, a sub-network, a router or
a site, starting from its IP address.
[29] The DNS system offers to
access providers, to sites, etc... the possibility of recording
with their co-ordinates their geographical localization in the
form of latitude and longitude. It is not an obligation.
[30] The exploitation of the
geographical localizations of the holders of an IP address is
however of a great interest, not only to target publicity but
also to ensure a harmonious development of the web. Several services
providers have the technology and data bases enabling them to
locate geographically such or such address, fixed or even dynamically
allocated. Several of them made openings [revelations] to the
consultants stating they had the technical means to allow Yahoo!
to satisfy the obligations ordered by the Court.
Problems
[31] To satisfy the terms of
the condemnation decision [requiring Yahoo! to bloc French user
access to the Nazi memorabilia website] and to forbid the access
to auction sales of nazis items, Yahoo! must:
........1) have knowledge of the
geographical origin and the nationality of the internauts desiring
to have
............access to.the
the site of auction sale
........2) prevent the French internauts
or those connected in the French territory from learning the
............description of the nazis
objects put for auction sale and a fortiori from bidding.
On the geographical origin and nationality
The case in general
[32] The interrogation of a Web
site by the public consists in connecting the user working equipment
(microcomputer or other) to a targeted site.
[33] This process takes place
with the intervention of different categories of intermediaries:
the access provider, the routers, one or more addressee sites.
[34] It is necessary at this
stage to keep in mind that the user's computer, the access provider,
the routers and the addressee site are identified on the network
by an address conforming with the Internet protocol(IP).
..........................................................................
. . .
[35] One may add that for phone
cost reasons, the French internauts use mainly the services of
access providers present in their own country.
[36] One can therefore estimate
that nearly 70% of IP addresses allocated to French internauts
can be linked with certainty to a French domiciliation of access
providers and can be filtered.
[37] Besides, it is this reality
which enables Yahoo Inc to post Franco-French advertising banners
on its auction sales site.
..........................................................................
. . .
Use of nationality by Yahoo Inc.
[38] Here is the second
problem. What is to be done once the nationality or the place
of localization of the computer is known? The measures to be
taken depend upon every particular case. They cannot be generalized
to concern all internet sites and services.
[39] In the present case, the
site to be considered is "pages.auctions.yahoo.com".
It is hosted by GeoCities IP address 216.115.104.70, localization
37°.352 of northern latitude, 121°.958 of western longitude,
GeoCities network registered by Yahoo, 3400 Central Expressway,
Suite 201, Santa Clara, CA 95051.
[40] The site is a site of auction
sales of miscellaneous things, not [eclusively] dedicated to
nazi objects. The characteristic of this type of site is to make
it possible for internauts to easily find the objects which they
look for.
[41] It appears that in order
to abide with the terms of the decision of May 22, 2000, Yahoo
must not allow internauts of French nationality or internauts
connecting from the French territory to access to these objects.
[42] If, at the end of a search
made from a query launched by a French internaut, one or more
nazi objects described as nazi by their owner have been selected
by the search engine, they must be hidden and excluded from the
result of search.
[43] But, obviously, it is not
possible for Yahoo to exclude . . . objects which would not have
been described by their owner as being of nazi origin or from
the nazi time, or whose characteristics would not have been made
known to Yahoo.
[44] Verifications made collectively
by the consultants confirmed that many nazi objects are presented
as such by their owners. A more radical solution is also possible.
It would be enough that the search engine would not fulfill the
queries, transmitted in the URL, with the inclusion of the word
"nazi" and coming from internauts
identified as French or declaring to be such.
Claim directed against Yahoo Inc
"To describe the information conveyed through the net allowing
to determine the geographical origin of the calls."
........................................................................
. . .
[45] According to "Association
Française des Fournisseurs d'Accès" (AFA),
one can consider that 80% of the addresses allocated dynamically
to members of the Association are identified as from French nationals.
... 20% are not French. Among the information conveyed through
the net, exclusively the IP addresses of the senders make it
possible to determine the geographical origin of the calls. 80%
of the addresses allocated
dynamically by access providers which are members of AFA can
be identified as from French nationals.
[46] But, it is appropriate to
specify that the geographical origin discussed here is that of
the site of the access provider used by the internaut. Nothing
prevents a user in France from calling by phone an access provider
whose telephone number is foreign. In this case, an address IP
allocated dynamically will be most likely
identified as a foreign one. A foreigner may also call an access
provider located in France and be looked in that way as being
allocated a French IP address.
[47] However, one can estimate,
as things now stand, that more than 70% of IP addresses of internauts
residing in the French territory can be identified as being French.
[48] The consultants stress that
it is not possible to say that things will remain same in the
future. Encapsulation is being developed, services suppliers
and access providers are getting international and internauts
seek more and more to protect their privacy.
.........................................................................
. . .
[49] "To describe the filtering
procedures which can be implemented by company Yahoo to prevent
internauts operating from the French territory from accessing
to items which could be considered as illegal by the French judicial
authorities."
..... "In the event that no
technical solution could guarantee a 100% filtering, to provide
any and all technical and factual information permitting to appreciate
the filtering efficiency of every one of the filtering procedures
described by the consultants".
....."More generally, to provide
all technical and factual information permitting the Court to
enforce the access restrictions ordered to Yahoo Inc."
[50] The consultants consider
that to be efficient a technical solution must be adapted to
the particular case. Companies [like] Yahoo! run many services
. . . through the Net, ranging from personal pages ("GeoCities")
to astrology ("Yahoo astrology") with in between finance,
etc... Most of the sites do not seem (sic)concerned (sic) by
[to be of concern to] the present lawsuit.
[51] Only the auction sales site
is precisely described by the decisions of the Court and the
claims. No claim against other sites and services of Yahoo! is
formulated with sufficient precision to enable the consultants
to propose adapted and operational technical solutions.
[52] As the matter now stands,
the consultants will limit consequently their answers to the
case of the auction sales site ("Yahoo auctions") [whereon
one may purchase nazi memorabilia]. . . .
Answer of the consultants Laurie and Wallon
[53] These consultants point out
that, in the current state of development of the Internet:
.....1) The figures provided for
by AFA, crossed with their personal experience, make it possible
for the
..........consultants to estimate
at nearly 70% the IP addresses of French nationals or residents
in the French
..........territory which may be
correctly identified by specialized services suppliers like InfoS-plit,
GeoNet or
..........others, on the basis of
specialized data bases.
.....2) Yahoo! posts advertising
banners targeted to internauts who are regarded as French by
Yahoo! who
..........has therefore technical
means to spot them.
.....3) Approximately 30 % of IP
addresses allocated to French nationals cannot be identified
correctly with
.........the above mentioned techniques.
.....4) Many sites, most of the
time which are related to the field of national defence (cryptography)
authorize
.........the access to some pages
of the site or the down-loading of software, only after having
requested from
.........the internaut a declaration
of nationality.
.....5) "Cookies" are
of current practice and make it possible to prevent that certain
information should be
..........given again by the internaut
every time that he consults a site. [Anyone] [w]ho wants to destroy
one's
..........cookies or prevent them
from being memorized knows perfectly well that consultations
with the sites
..........they came from [time to
reaccess] will be longer [without the Internet cookies].
.....6) The nazi objects are generally
described as such by the sellers with a mention "nazi",
said description of
..........object appears to them
as a reason for the buyer to purchase. Consequently, the consultants
consider .........that in addition
to the geographical identification already used by Yahoo to target
its publicity, it would .........be
appropriate to ask the internauts, when their IP address is ambiguous,
that they subscribe a
..........declaration of nationality.
[54] The declaration upon honor,
would concern only the internauts whose IP address cannot be
identified as being related to a French ISP (i.e. multinationals
ISP like AOL address originating from an anonymous site or encapsulation
of an address allocated by an intranet server). The declaration
could, as Yahoo! would think it
fit, be subscribed either on the index page of its auction sales
site, or only, in the case of a query for nazi objects, if the
word nazi is mentioned in the user's query, just before it is
processed by the search engine.
[55] In these conditions, the
consultants consider that it cannot reasonably be supported that
that would have negative effects on the performances and response
time of the server hosting the auction sales site of Yahoo! The
combination of the two procedures, geographical identification
of IP addresses and declaration of nationality, would probably
make it possible to reach a filtering ratio close to 90%.
Answer of consultant Vinton Cerf
.......................................................................
. . .
Free translation: There follows a translation into French
of Mr. Vinton Cerf's opinion:
.......................................................................
. . .
[56] Whereas it results from said
conclusions that physical localization of an internaut is possible
on the basis of one's IP address; Whereas YAHOO Inc. attempts
to make these conclusions totally unoperative by opposing to
them the contents of a separate note prepared by one of the consultants
Mr Vinton Cerf; but whereas, first, during the session devoted,
among other matters, to hearing the consultants, Mr Vinton Cerf
admitted the feasibility of a geographical localization in accordance
with the terms and conditions of the report and with the proposals
appearing in said report, the contents of which he approved;
[57] Whereas, then, his separate
note of November 5, 2000, that Yahoo Inc. mentions, does not
contradict the conclusions of the report: the note merely states
on one hand that it would be "incorrect, in any case likely
to induce in error", to affirm that it would be possible
to determine with a high rate of reliability the
physical localization of an address IP, the term "high rate
of reliability " meaning obviously a rate of reliability
much higher than the one mentioned in the report, which is about
70%, and on the other hand, which the consultants collectively
admitted entirely, that the answer which was given about this
point could only concern the auction sales site of nazi objects
and could not be extrapolated to services site under Yahoo's
control;
[58] Whereas it is, besides,
appropriate to mention that Yahoo Inc. already practices geographical
identification of French internauts or internauts connecting
from the French territory, since Yahoo Inc. systematically posts
advertising banners in French language aimed to these internauts,
whom Yahoo Inc. has therefore the means to spot; Yahoo Inc could
not validly argue that the technology in question in the present
case would be a "rough technology" with no reliability,
unless one would have to consider that Yahoo Inc. has made the
decision to waste its money or cheat the advertisers about the
quality of the services and advantages which it is engaged to
offer to them, which does not appear to be the case in this instance;
[59] Whereas, in addition to
geographical identification, which is already practiced by Yahoo
Inc. as that has just been demonstrated, the consultants' report
suggests that the internauts, whose IP address is ambiguous (going
through an anonymiser [site guaranteeing anonymity] - or allocation
of IP addresses by AOL COMPUSERVE not taking into account the
country of origin from the subscriber) may subscribe a declaration
of nationality actually a declaration concerning the geographical
origin of the internaut, that Yahoo Inc. could require either
at the time when its home page is opened, or in the case of a
search for nazi objects, if the word "nazi" appears
in the query from the user, just before the query is processed
by the search engine;
[60] Whereas the consultants,
who challenge the allegations of Yahoo Inc. relating to the negative
effects of such control over the performance and the response
time of the server hosting the auction sales site, figure that
the combination of both procedures, geographical identification
and declaration of nationality, would make it possible to reach
a filtering rate close to 90%;
.......................................................................
. . .
[61] Whereas, in addition to the
measures suggested by the consultants, it is necessary to add
control by Yahoo on delivery location for the objects purchased
in the auction sales;
[62] Whereas, as a matter-of-fact,
the visit of the auction sales site of nazi objects is not exclusively
consultative; its purpose is often the purchase of objects; consequently,
if Yahoo did not have the possibility to identify with certainty
the geographical origin of the internaut, French in the present
case, Yahoo will have, because the place of delivery is known,
the ability to prevent the delivery when it is scheduled to take
place in France;
[63] Whereas, at last, on the
basis of the language version of the navigator, Yahoo Inc, could
have additional information on the nationality of the internaut;
[64] Whereas Yahoo Inc. argues
however that in order to use that information it would be necessary
to modify the software to manage its sites and a significant
increase in the associated hardware resources;
[65] Whereas Yahoo Inc. adds
that filtering all information at the level of the web server
could be envisaged only if it was possible to make sure that
prohibition would apply only to French internauts, unless other
internauts throughout the world are deprived from information
published on its sites, which cannot be envisaged;
.......................................................................
. . .
[66] Whereas, furthermore, Yahoo
Inc. does not demonstrate, with a convincing study forecast,
that the technical changes which would be necessary to control
access to the auction sales site of nazi objects would entail
a significant increase in the associated hardware resources;
[67] Whereas in any event, company
Yahoo! Inc. has proposed to cooperate with the plaintiffs; in
effect Yahoo! Inc. requests that it be acknowledged that it is
prepared to set up a watch system with the assistance of the
plaintiffs, the fight of whose it has always respected, in order,
when an offending site is brought to
its attention by the plaintiffs and on condition that it is obviously
aimed to French users, to stop hosting it;
[68] To prove its good faith,
Yahoo Inc. indicates to have stopped hosting the Protocole des
Sages de Sion (Protocol of the Wise Men of Sion), considering
sufficient the link of this document to France because of the
language of the work;
[69] Whereas with a bit of good
will, company Yahoo! Inc. will be able to convince itself that
it is useful to extend that link to pictures and descriptions
of objects representing symbols of nazism;
[70] Whereas, according to information
put in the report from the consultants on the initiative of the
plaintiffs and which was not earnestly disputed, company Yahoo
refuses as of now its service for the auction sales of human
organs, drugs, works or objects related to pedophilia, cigarettes,
or animals alive, all sales which it
excludes automatically and rightly from the benefit of the [US
Consitution's] First Amendment of the American Constitution which
guarantees freedom of thought and expression;
[71] Whereas most certainly it
would cost Yahoo! Inc. very little to extend the above prohibitions
to symbols of nazism and such an initiative would have the merits
of satisfying the requirements of ethics and morality shared
by every and all democratic societies; Whereas the combination
of the technical means that Yahoo! Inc. has together with the
initiatives it is able to take on behalf of simple social morality
give consequently to Yahoo! Inc the possibility to comply with
the injunctions contained in the ordinance of 22 May, 2000 concerning
filtering access to the auction sales service of nazi objects
and to the service related to the work "Mein Kampf"
which was included in the formulation of the aforesaid ordinance
under the mention "and of any other site or service which
constitutes an apology of nazism ";
[72] Whereas nevertheless a three
months period will be granted to Yahoo! Inc. to comply with this
ordinance [from November 20,2000] ;
[73] Whereas after the expiration
of that period Yahoo! Inc. will have to pay a daily fine
for non compliance in the amount of French Francs 100,000.00
[approximately US $ 13,000.00 as of November 2000] till perfect
performance.
About claim against Yahoo France
Whereas the report from the consultants specifies and suggests:
....."to check whether Yahoo
France has well satisfied the terms of our injunction contained
in the ordinance of May 22, 2000"
[74] The ordinance of May 22,
2000 provides in this respect:
"Order company Yahoo France to warn any internaut consulting
yahoo.fr, and this even before he uses a link enabling him to
go on with his search on yahoo.com, that if the result of his
search, either starting from a tree structure, or starting from
key words, leads him to point to sites, pages or forums the title
and/or the contents of which constitute a violation of the French
law, which is the case of a consultation of sites making an apology
of nazism and/or exhibiting uniforms, insignia, emblems recalling
those which were worn or exhibited by nazis, or offering for
sale objects or works the sale of which is strictly prohibited
in France, then he must stop consulting the site concerned, lest
he is liable to penalties provided for by French laws or he has
to defend against lawsuits initiated against him."
[75] To conform with the terms
of the ordinance, Yahoo! France has:
........1)changed and supplemented
its terms of use which are accessed to by clicking on the link
"tout savoir sur Yahoo!" appearing at the bottom of
every page of the site. The following paragraph has been added:
......"At last, if within the
framework of a search undertaken on www.yahoo.fr starting from
a tree structure, of key words, the result of which would lead
you to point to sites, pages or forums the title and/or contents
of which constitute a violation of the French law, taking into
account in particular the fact that Yahoo! France cannot check
the contents of these sites and external sources (including the
contents referred to on other sites and services of Yahoo! throughout
the world), you must stop your consultation of the site concerned,
lest you would be liable to penalties provided for by French
laws or would have to defend against lawsuits initiated against
you."
........2) installed, in the case
of a search through a tree structure (categories) a warning drafted
as follows: "Warning: by going on with your search on Yahoo!
US you may be led to consult revisionist sites, the contents
of which constitute a violation of the French law and the consultation
of which, if you persevere, would make you subject to penalties.
....."It has been found that
the terms of use of Yahoo ! were not systematically posted at
the time of the first connection to the site and besides that
the link "tout savoir sur Yahoo!"did not refer necessarily
to the access for general terms of use.
......................................................................
. . .
[76] It is technically possible
for Yahoo! France to force the posting of its terms of use at
the time of the first connection of a user to its site.
[77] Yahoo! could also, in addition
to, or in place of, the previous measure, cause systematically
the posting of the notice mentioned in [para. 75] 2) as soon
as the link to Yahoo.com is opened.
[78] But on this last point,
Yahoo! sustains that such were not the terms of the ordinance.
It will be up to the Court, then, to construe the terms of its
own decision. Contrary to what Yahoo! sustains, "to warn
any internaut consulting yahoo.fr and this as soon as he uses
the link..." can mean that the notice must be posted every
time the link is opened.
[79] Whereas Yahoo France sustains
that it has perfectly complied with the ordinance of May 22,
2000 by amending the link targeted at by the plaintiffs , by
installing on several links the notice mentioned in the ordinance,
by recalling to internauts the terms of use of the service which
may be accessed to by users as soon as they connect with Yahoo.fr
and which may be consulted on all the pages of yahoo.fr since
November 3, 2000, and by modifying the general terms of use of
the service by incorporating a message even exceeding the requirements
of the ordinance of May 22, 2000, and this in accordance with
the terms of article 6.2 new;
[80] Whereas the initiatives
taken by Yahoo! France are technically such that they may to
a large extent satisfy the terms of our ordinance of May 22 2000,
reserve being made however that the warning must be mentioned
every time the link is posted, that is "even before the
internaut put the link in use";
About other claims filed against Yahoo! France
[81] Whereas there is no urgency
concerning the claims from LICRA, UEJF [the plaintiffs], and
MRAP aiming that Yahoo! France be ordered, subject to a fine
in case of non-compliance, to suppress any link from its site
to sites owned directly or indirectly by Yahoo! Inc. till Yahoo!
Inc has fulfilled its obligations, having regard to the existence
of a dispute raised in earnest by Yahoo! France about claims,
disputes which are outside our jurisdiction;
[82] For these reasons
........[a] Ruling publicly in
first instance, by contradictory ordinance,
........[b] Reject the exception
about non-jurisdiction reiterated by Yahoo! Inc;
........[c] Order Yahoo! Inc to
satisfy, within 3 months as of notification of this ordinance
[order dated Nov.
..............20, 2000], the injunctions
contained in the ordinance of May 22, 2000, subject to a penalty
for
..............non-permormance in
the amount of French Francs 100,000.00 per day [approximately
US $
..............13,300.00
per day] of delay as from the 1st day which will follow the expiry
of the 3 months period;
........[d] ....Appoint Mr. Wallon
19, rue D. 75016 Paris Telephone:0147...... Fax: 0147...... at
the expense to .............be paid
in advance by Yahoo Inc.
........[e] With the duties to report
about the ways according to which the terms of this ordinance
are fulfilled;
........[f] Acknowledge that Yahoo
Inc. has made the decision to stop hosting the Protocol of the
Wise Men of ............Sion (Le
Protocole des Sages de Sion);
........[g] Acknowledge that Yahoo!
France has to a large extent satisfied the spirit and the letter
of the
.............ordinance of May 22,
2000 containing injunction against it;
........[h] Order however that the
warning to internauts must be posted before they put to use the
link to
.............Yahoo.com, and this
within 2 months after the present decision is notified;
........[i] Condemn Yahoo Inc to
pay to each of the plaintiffs the sum of French Francs 10,000
[approximately ............US $
1,330.00] pursuant to article 700 of the new code of civil proceedings;
Made in Paris, on November 2000
The Clerck of the Court: Nicole Vouriot
The President: Jean-Jacques Gomez |