Fuzzy borders and hurt feelings

I run an online business specializing in the sale of Nazi-related items including coins and comforters.

It’s as much a hobby as it is a business. I spend much of my free time searching for rare . . . OK, I’m lying. I have no interest in coins, comforters or anything Nazi-related, nor do I have an online business. But if I did I wouldn’t want a foreign government telling me to close up shop and pay a fine.

This is what a French court tried to do about a year-and-a-half ago when it ruled Yahoo Inc. had committed an offense to the collective memory of the country by auctioning Nazi memorabilia.

The Union of Jewish Students and the International League Against Racism and Anti-Semitism (LICRA) hauled the American company into the Superior Court of Paris for allowing the cyber-auction of Nazi artifacts. Judge Jean-Jacques Gomez ordered the company “to dissuade and make impossible any consultations by surfers calling from France to its sites and services.”

If Yahoo! was unable to shield offensive material from the sensitive eyes of French surfers (no small task) it had to take it down. The Sunnyvale, Calif.-based company was given 90 days to comply and threatened a US$13,000 fine for each day it exceeded the deadline. About a month after the ruling, Yahoo! banned Nazi and Ku Klux Klan items from its auctions. Nazi memorabilia, however, is available again.

Judge Gomez argued the French court had the authority to impose jurisdiction over a foreign company because harm had been suffered in France. Thankfully, a United States district court thinks otherwise. Judge Jeremy Fogel of the Federal District Court of the Northern District of California ruled last week French courts do not take precedence over the “protections of the United States Constitution.” LICRA is appealing the decision.

If the French court had gotten its way, a dangerous precedent would have been set. If Yahoo! is guilty, it’s a short slide down the slippery slope to me and you. Are the ISPs next? What about the people who send, unbeknownst to them, forbidden goods, and the mail service that delivered them? What about personal home pages with Nazi information?

Nazi history, as heinous as it may be, is precisely that — history. It is as much a part of the collective human narrative as the Industrial Revolution, the moon walk or The Crusades.

To take an extreme, the French court’s decision would be akin to the Vatican suing Chapters.ca for selling Charles Darwin’s “The Origin of Species.”

The law of jurisdiction becomes a fuzzy thing when borders are erased and replaced by IP addresses. By French reasoning every Web site accessible worldwide is accountable to every nation’s laws, resulting in the Internet being governed by the most repressive regime. The other extreme is the creation of a virtual haven for some to circumvent their country’s laws. While this particular scenario isn’t best for all concerned, it sure beats the alternative.

If anything, the burden should fall on the shoulders of the ISPs. If France doesn’t want its citizens to purchase pieces of history (an undeniable part of its past, no less), make its ISPs figure out a way to prevent its user from accessing illegal goods.

At the end of the day this boils down to an old fashioned case of free speech. We may not agree with another country’s laws, but we don’t have to. We don’t live there, it’s not our concern, and by the same token my (online) business is none of theirs.

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ITBusiness.ca editor Shane Schick returns Friday.

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Jim Love, Chief Content Officer, IT World Canada

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