In dispute over marketing of Nazi memorabilia on Yahoo! internet sites, Ninth Circuit finds that there was no personal jurisdiction over defendants in Yahoo!'s declaratory suit against French anti-Nazi organizations which had obtained French court order against Yahoo! to expunge Nazi material from its U.S. site
Yahoo! Inc. (defendant) is a prominent internet service provider (ISP) based in Santa Clara, California. In its internet "chat rooms"¯, discussions of Nazi doctrines have taken place and defendant's action website has featured Nazi memorabilia. In April 2000, the French "Ligue Contre Le Racisme et L'Antisemitisme"¯ (LICRA) and the L'Union Des Etudiants Juifs De France (UEJF) sued defendant in a French court and served it in California.
Section R645-2 of the French Criminal Code bans the marketing of Nazi propaganda materials. In response, defendant had taken all such materials off of its French website, but they are still available through its American site. The French court also ordered defendant to remove such materials from all of its internet sites.
In turn, defendant filed an action in California federal court for a declaratory judgment that the French court's orders were not recognizable by, or enforceable in, U.S. courts. The district court found that it had personal jurisdiction over LICRA and UEJF (1) because of the cease-and-desist letter that LICRA had sent to defendant's California headquarters, (2) because it had used the U.S. Marshals Service to perfect process, and (3) because LICRA and UEJF had asked the French court to order defendant to stop doing certain acts within the U.S.
In the court's view, these actions had constituted "express aiming"¯ within the meaning of Calder v. Jones, 465 U.S. 783 (1984), and were enough of a basis for personal jurisdiction. The district court eventually declared that the French court's orders were unenforceable in the U.S. and gave summary judgment to defendant. See 2001 International Law Update 184.
LICRA and UEJF appealed the district court's judgment. The U.S. Court of Appeals for the Ninth Circuit affirms, however, finding that the district court was unable to obtain personal jurisdiction over LICRA and UEJF.
The Court admits that it cannot directly review the French court's determination that defendant was breaching French law. Defendant, however, submitted that the enforcement of the French court's order in the U.S. would violate its U.S. First Amendment rights. An American court which has personal jurisdiction over LICRA and UEJF could review such a constitutional claim.
So far, however, LICRA and UEJF have not subjected themselves to personal jurisdiction in the U.S. Nor have the two organizations themselves invoked the jurisdiction of the U.S. courts to enforce the French court orders.
Here, none of LICRA's and UEJF's activities constitute a foreign wrongful action aimed at an American defendant within Calder. "France is within its rights as a sovereign nation to enact hate speech laws against the distribution of Nazi propaganda in response to its terrible experience with Nazi forces during World War II. Similarly, LICRA and UEJF are within their rights to bring suit in France against Yahoo! for violation of French speech law."¯
"The only adverse consequence experienced by Yahoo! as a result of the acts with which we are concerned is that Yahoo! must wait for LICRA and UEJF to come to the United States to enforce the French judgment before it is able to raise its First Amendment claim. However, it was not wrongful for the French organizations to place Yahoo! in this position."¯ [Slip op. 15]
Citation: Yahoo! Inc. v. La Ligue Contre Le Racisme at Lā€™Antisemitisme, No. 01-17424 (9th Cir. August 23, 2004).
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