Conflicting Orders and the Global Takedown

In one line

Four courts have been asked whether an order about internet content can reach the whole world, and they gave four different answers, of which the Indian one is a compromise turned on where the content was uploaded from.

The question

A court in one country finds content unlawful. The platform is global. Two orders are possible.

Geo-blocking: make the content inaccessible from within this country, and leave it available everywhere else.

Global removal: take it down everywhere.

The case for global removal. An order that leaves the content on the platform is easily defeated, by a virtual private network, by visiting the platform's foreign domain, or by anyone abroad linking to it. A remedy that any competent user can circumvent is not a remedy. And when platforms remove content under their own policies they remove it globally, so there is no technical objection.

The case against. The content may be lawful in most of the world. A global order lets the most restrictive State set the rules for everyone, and there are eight thousand of these orders a year from every jurisdiction on earth. Comity requires a court to respect the interests of other States, and a global order respects none.

Yahoo! v. LICRA: the first collision

The French proceedings. In 2000 two French associations, the Ligue Contre le Racisme et l'Antisemitisme and the Union des Etudiants Juifs de France, sued Yahoo! in the Tribunal de Grande Instance de Paris because Nazi memorabilia was being auctioned on Yahoo!'s American site, accessible in France, where the display of such objects is a criminal offence. In November 2000 the Tribunal ordered Yahoo! to take all measures to make access to the auctions impossible from French territory, on a substantial daily penalty, having taken expert evidence that a high proportion of French users could be identified by their addresses.

The American proceedings. Yahoo! sued in the Northern District of California for a declaration that the French orders were unenforceable in the United States because they violated the First Amendment. The District Court granted it in 2001. The Ninth Circuit reversed on appeal, and in 2006, sitting en banc, dismissed the action, a majority holding that the case was not ripe or that personal jurisdiction over the French associations was lacking, without deciding the constitutional question.

Why it matters. It is the first and clearest statement of the problem. France could make the order and could not enforce it in America. America would not enforce it and could not stop it. Both were right under their own law, and there was no forum in which the conflict could be resolved. Yahoo! ultimately removed the material voluntarily.