Both France and Germany maintain very stringent rules against the dissemination of Nazi material, Nazi or neo-Nazi propaganda, or revisionist history.  In order to comply with the laws of the countries, Google has often removed specific websites from its search results.  Seeking to avoid legal liability, the company "removes sites from its Google.de and Google.fr indexes that may conflict with local laws."  This is done without notification to the website owner or the search engine user.  Nonetheless, the company asserted that the sites were removed only after a “specific complaint from the government of the country concerned.”  As shown by the French court’s willingness to entertain suits concerning certain aspects of its laws, the decision by Google may prove to be a pragmatic economic choice. 

France

As recounted in Yahoo! Inc. v. La Ligue Contre Le Racisme Et L'Antisemitisme, Yahoo was sued by two French organizations due to a violation of the country’s criminal code prohibiting the exhibition of Nazi propaganda for sale or its purchase or possession.  Because Yahoo’s actions concerned its auction feature instead of strictly its search engine features, this case did not prevent a question of search engine liability based merely on the return of unacceptable results.  However, the case does illustrate the extent to which the law’s reach apparently extends.  Following a hearing on the merits, the French court held against Yahoo and ordered the company to:

• eliminate French citizens' access to any material on the Yahoo.com auction site that offers for sale any Nazi objects, relics, insignia, emblems, and flags

• eliminate French citizens' access to web pages on Yahoo.com displaying text, extracts, or quotations from Mein Kampf and the Protocol of the Elders of Zion

• post a warning to French citizens on Yahoo.fr that any search through Yahoo.com may lead to sites containing material prohibited Section R645-1 of the French Criminal Code, and that such viewing of the prohibited material may result in legal action against the Internet user

• remove from all browser directories accessible in the French Republic index headings entitled "negationists" and from all hypertext links the equation of "negationists" under the heading "Holocaust."

• a fine of 100,000 francs per day could be assessed by the court for failure to comply with the ruling

This order was reaffirmed once again by the French court on November 20, 2000 to which Yahoo did not comply with all provisions, and did not appeal in France.  Yahoo thereafter filed a complaint in U.S. district court seeking a declaration that the French court’s orders were not recognizable or enforceable in the United States.  Following a motion to dismiss by the French organizations, Yahoo was granted summary judgment based upon the district courts ruling that the French orders were in violation of the First Amendment.  The circuit court reversed due to lack of personal jurisdiction over the French organizations without reaching the question the issue of Yahoo’s request for declaratory relief.  The case now awaits a rehearing en banc.

Notwithstanding the orders of the French court, typical restrictions placed upon search engines in France and Germany apply to those sites having a presence in the country, such as Google.fr instead of Google.

REFERENCES:

• Yahoo! Inc. v. La Ligue Contre Le Racisme Et L'Antisemitisme, 399 F.3d 1010 (9th Cir., 2005).

• Yahoo! Inc. v. La Ligue Contre Le Racisme Et L'Antisemitisme, 379 F.3d 1120 (9th Cir., 2004).

• Brian Morrissey, Google Filters Sites in France and Germany, at http://siliconvalley.internet.com/news/article.php/1488031 (Oct. 24, 2002).

• Bill Thompson, Google Censoring Web Content, BBC News; Technology, at http://news.bbc.co.uk/1/hi/technology/2360351.stm (Oct. 25, 2002).

• Martin Sampson, Yahoo, Inc. v. La Ligue Contre Le Racisme et L'Antisemitisme, et al, Phillips Nizer LLP Internet Library, at http://www.phillipsnizer.com/library/cases/lib_case17.cfm (last visited Apr. 10, 2005).

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Germany

Several search engine companies, in an effort to centralize compliance with German law, created a self-regulatory organization to automate the filtering of unacceptable websites.  Instead of developing the list of web addresses on their own, several providers, including Google, Lycos Europe, MSN Deutschland, AOL Deutschland, and Yahoo sponsored the program which filters out unacceptable web addresses based upon the index of Germany’s Federal Department for Media Helpful to Young Persons.  The agreement prevents the publication or dissemination of the excluded websites.  Further, only those sites in German will be filtered in an effort to prevent the imposition of German standards upon other countries.

REFERENCES:

• Monika Ermert and Robert W. Smith, Search Engine Providers Practice Self-Regulation, Heisse Online: News, at http://www.heise.de/english/newsticker/news/56817 (Feb. 2, 2005).

• Search Engine Found Liable in Celebrity Sexpic Case, Merchant Boss: eCommerce News, at http://www.merchantboss.com/news/2005-03-30/3838-search_engine_found_liable_in_celebrity_sexpic_case.html (Mar. 30, 2005).