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Chicago Journal of International Law

Abstract

In the spring of 2000, two French non-profit associations dedicated to fighting anti-Semitism attacked Yahoo! Inc. ('Yahoo") before the French courts for exhibiting images of Nazi symbols on its websites, as well as links to revisionist and anti-Semitic sites. After losing a challenge over the French court's jurisdiction, Yahoo argued that a significant filtering system would be prohibitively expensive. But relying on a report compiled by a panel of internationally renowned experts which showed that a filtering system with an accuracy rate of about 70 percent could be achieved without incurring unreasonable costs, the French judge gave Yahoo until February 2001 to implement measures to close access from French territory to the disputed pages. In the meantime, Yahoo announced that it would comply with the French court's order and did not appeal. However, in 2000, Yahoo obtained a declaratory judgment from the District Court of Northern California that the French court's order was without effect in the United States since its enforcement would violate Yahoo's First Amendment right of free speech. The French associations have filed an appeal. I will argue that the decision of the French court was based on a doubtful foundation, both in terms of applicable rules of French private international law and in terms of public international law. My ultimate purpose is to treat the Yahoo affair as a case of the prisoner's dilemma to illustrate how the approach adopted by the French court necessarily led to a sub-optimal resolution of the matter and to suggest, accordingly, that the approach should not be replicated elsewhere.

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