News to hand today: the US 9th Circuit Court of Appeals has handed down its en banc judgment in the Yahoo! case regarding enforcement of the judgment of the French Court in La Ligue Contre Le Racisme et L’Antisemitisme v. Yahoo!, Inc. It would appear that:

  • 3 judges decided to dismiss for lack of ripeness
  • 3 decided to dismiss for lack of personal jurisdiction; thus the case was dismissed, despite the
  • 5 judges who thought that there was both jurisdiction and ripeness.

Huh? I hear you ask? Isn’t the Yahoo! case, like, ancient history in internet terms? Yes indeed, but remember, that we are working on law time here, not internet time. Brief precis of the case over the fold.

  1. In 2000, a French court ordered Yahoo! and Yahoo! France to take all measures at their availability, to dissuade and render impossible all visitation on to participate in the auction service of nazi objects, as well as to render impossible any other site or service which makes apologies of Nazism or that contests Nazi crimes, to warn surfers about the content, and pay fines. The French court ordered that Yahoo! had three months to comply with the Order or it would be subject to a penalty of 100,000 francs per day. The French order is: La Ligue Contre Le Racisme et L’Antisemitisme v. Yahoo!, Inc., T.G.I. Paris 14 ( Nov. 20, 2000 ). The order is available in translation on several sites, including Juriscom and EFF.
  2. In response to this Order, Yahoo! sought and received in U.S. District Court for the Northern District of California a declaratory judgment stating that French authorities cannot impose and collect fines on Yahoo!. The District Court gave summary judgment for Yahoo!, the stating that the enforcement of foreign judgments is based on the “comity of nations.”: Yahoo!, Inc. v. La Ligue Contre Le Racisme et L’Antisemitisme, 169 F. Supp. 2d 1181 (N.D. Cal. 2001). The district court issued the declaratory judgment because the content is protected by the First Amendment, and the 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.”
  3. The 9th Circuit overturned the decision of the District Court, finding that there was no basis for jurisdiction because LICRA and UEJF had insufficient contacts with the forum state: Yahoo!, Inc. v. La Ligue Contre Le Racisme et L’Antisemitisme, 379 F.3d 1120 (9th Cir. 2004)
  4. In February 2005, Yahoo! was granted a rehearing en banc: meaning that the three-judge panel opinion could no longer be cited as precedent by or to the 9th Circuit Court, or any district court of the Ninth Circuit, except to the extent adopted by the en banc court: Yahoo!, Inc. v. La Ligue Contre Le Racisme et L’Antisemitisme 399 F.3d 1010 (9th Cir. 2005). The case was re-heard in late March 2005

On one level, from a non-US perspective, a decision of this kind (disclaimer: I’ve not yet read it. It’s 100 pages long!!!) might be good news – it is a decision that the overseas respondent to the action could not be hauled into the US court. But note the split: 5 judges thought there was jurisdiction, 3 thought there wasn’t. No guarantee that overseas respondents won’t be hauled into US courts in the future…There was a majority who thought the District Court had personal jurisdiction.

News coverage here. More commentary and coverage as it comes to hand.