Bowing to Pressure in France Sets a Dangerous Precedent

Who are the real Nazis?

Lee Dembart
International Herald Tribune

THE recent decision by Yahoo to cave in to the French courts and ban the sale of Nazi memorabilia from its auction sites should send a shiver down the spine of every Internet user around the world.

Yahoo spent months fighting French law. But faced with the threat of stiff fines in France, it ultimately gave up, and as of Wednesday, it banned the sale of Nazi-related merchandise and paraphernalia. As a result, Internet users -- you and me -- are entering a regime in which the most restrictive rules anywhere can be enforced everywhere.

Let me be clear: Nazi memorabilia, including flags, uniforms and swastikas, are repugnant, and people interested in buying such things should be sent for psychiatric examination. But if you believe in freedom, particularly freedom of expression, you frequently wind up defending people you'd rather not have dinner with. People who say popular things never have trouble.

No one ever tries to shut them up. It is the people who say unpopular and even offensive things who need protection -- not for their sake, but for ours. Their freedom is your freedom and my freedom.

The French courts need to be reminded of the wisdom of Voltaire, who said, "I disagree with what you say, but I will defend to the death your right to say it." In ruling against Yahoo, the court held that selling -- or even displaying -- Nazi material "offended France's collective memory," which it no doubt does.

But offensiveness is never sufficient reason to restrict liberty. In the United States, many people believe that burning the American flag is offensive and should be illegal. Congress has twice passed laws to that effect. But so far, at least, the U.S. Supreme Court, by narrow margins, has struck down those laws.

Besides which, different societies have varying views of what's offensive.

• Will courts in Arab countries now seek to prevent the sale of Jewish memorabilia on the Internet? Those items presumably offend the Arabs' collective memory.
• Will a Chinese court now threaten heavy fines on Internet sites that contain information about Falun Gong, which is illegal in China?
• Will a Burmese court fine sites that contain complaints about human rights violations there?
• In general, will courts in totalitarian countries punish sites that promote or even discuss the Universal Declaration of Human Rights, which they may find offensive?

These are not isolated or absurd cases. Reporters Sans Frontieres (Reporters Without Borders) concluded recently that 45 countries restricted access to the Internet and that 20 of them did so on the grounds of protecting people from "subversive ideas" or defending "national security and unity." To read the report, see www.rsf.fr/uk/html/internet/ennemis.html.

If executives at Yahoo think that by banning Nazi material they have put the problem behind them, they should think again. Their decision is shortsighted. This is only the beginning of what is to come.

Of course, Yahoo insists that its decision to ban Nazi memorabilia has nothing to do with the French courts. It says it has taken this step on its own in response to customer complaints and after deciding that this is the kind of merchandise it doesn't want to sell.

Like Pinocchio, Yahoo's nose is growing by the minute. Next they'll pour water on our backs and tell us it's raining. The company notes proudly that it has filed suit in a federal court in the United States to block enforcement of the French court's order on the ground that French courts have no jurisdiction over a Web site owned by a U.S. company and housed in the United States, the great majority of whose viewers are American.

Yahoo says it will continue to pursue that action. Really? If it doesn't intend to sell the Nazi stuff anyway, why doesn't it drop the suit? Or, to put it another way, if it wins in the U.S. federal court, will it allow the auctions of Nazi-related material to resume? Before it gave up in France, Yahoo argued that there was no way for it to prevent French viewers from accessing its Web site.

To assess the technical argument, the French court asked three computer experts to study the situation and report back. The experts from Britain and the United States said that Yahoo was correct and there was no technological fix. The French expert disagreed, and the court sided with him.

The British member of the panel, Ben Laurie, described the proposed solution as "half-assed and trivially avoidable." His commentary on the matter, "An Expert's Apology," is available at www.apache-ssl.org/apology.html.

Besides the technical argument, Mr. Laurie wrote:

"What is supposed to be prevented is not the purchase of Nazi memorabilia, but the mere ability to even see them.

"What is being fought over is literally what people think. No one should be able to control what I know or what I think. Not the government. Not the Thought Police. Not my family. Not my friends."

Yahoo will live to regret its decision. So will the rest of us. The consequences are much more dangerous than the sale of Nazi junk to a bunch of nuts. By the way, anyone interested in buying these things could go to the eBay auction site, www.ebay.com, and search for the word "Nazi." There are hundreds of items for sale, at least as of Sunday, and although eBay restricts their sale in France, Germany, Austria and Italy, the eBay site is still accessible in those places.

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