The Yahoo Case and Free Speech, Privacy and Corporate Responsibilty in the People's Republic of China

Transcription

1 From the SelectedWorks of Nikola A Koritz December 19, 2008 The Yahoo Case and Free Speech, Privacy and Corporate Responsibilty in the People's Republic of China Nikola A Koritz Available at:

2 THE YAHOO CASE AND FREE SPEECH, PRIVACY AND CORPORATE RESPONSIBILITY IN THE PEOPLE S REPUBLIC OF CHINA 1 INTRODUCTION...2 I. WHAT IS THE ISSUE?...3 A. CHINA S POTENTIAL AS FASTEST GROWING INTERNET MARKET IN THE WORLD...3 B. CHINA S APPROACH TO CENSORSHIP AND COPYRIGHT...4 C. INTERNET FILTERING AS THE NEWEST TOOL OF CENSORSHIP...6 II. THE YAHOO! CASE...9 III. PROTECTION OF FREE SPEECH INTERNATIONALLY AND IN CHINA...11 A. UNIVERSAL DECLARATION OF HUMAN RIGHTS AND THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS...12 B. COMPLIANCE WITH WTO PROHIBITIONS...13 C. U.N. CONVENTION AGAINST TORTURE...14 D. PROTECTION OF FREE SPEECH IN CHINA...14 E. CAUSE OF ACTION IN AMERICAN COURTS FOR PEOPLE AFFECTED BY U.S. TORTS ABROAD...15 F. LEGISLATIVE INITIATIVE IN THE U.S. THROUGH THE GLOBAL ONLINE FREEDOM ACT...16 G. UPROAR OF CHINESE INTERNET USERS IN CHINA...17 IV. COPYRIGHT PROTECTION IN CHINA...17 V. CORPORATE RESPONSIBILITY...18 A. OBLIGATION TO ABIDE?...19 B. INTERNET GOVERNANCE Position of Human Rights in China Ruggie Report Chatham House International Law Discussion Group RConversation and the setting of global principles...22 VI. POSSIBLE RECOMMENDATIONS...23

3 THE YAHOO CASE AND FREE SPEECH, PRIVACY AND CORPORATE RESPONSIBILITY IN THE PEOPLE S REPUBLIC OF CHINA Nikola A. Koritz * 2 INTRODUCTION It s like opening Pandora s Box. You can t put the content back. When China made the Internet commercially available in 1995 it opened the floodgate to information and free communication. But the free exchange of ideas and information over the Internet threatens China s ability to control information exchange. 1 The People s Republic of China ( China ) enacted restrictive regulations controlling Internet usage and is adjusting these regulations in the pace of the technical development. 2 This paper addresses the question how international companies who want to do business in China can comply with these circumstances without compromising substantial human rights and getting themselves in conflict with Chinese Law. Many International and American Companies provide help and Technical support for China s restrictive government. 3 Some of them have realized that they have to act to prevent further human rights violations some are still in the stage that they abide with the Chinese regulations to maximize their profit. Journalists like Shi Tao tried and try to take advantage of the chances the Internet and the modern information technology has to offer. Information travels fast and transcends national borders regardless of frontiers through the whole world in a few moments. But at the same time, journalists, scientists, filmmakers and Web site creators know they may send a message that might be unacceptable to the Chinese government. The repercussions of such ado include harsh prison sentences, expulsion from country, or loss of job or businesses. 4 * LL.M. Candidate, Washington College of Law/International Legal Studies Program, American University, Attorney-at-Law Germany 1 See Regulations restricting Internet Access: Attempted Repair of Rupture in China s Great Well Restraining the Free Exchange of Ideas Scott E. Feir, 6 Pac.Rim L.&Pol y J See Ibid. 3 See People s Republic of China controls tighten as Internet activism grows retrieved See Freedom of Speech in China: A Possibility or a Prohibition? Shauna Emmons, 23 Loy.L.A.Int l&comp.l.rev.249, 250

4 The goal of this paper is first to summarize the current situation and second to see the problem through another angle, the angle of privacy copyright infringement and consumer protection on the other hand. Third, the goal is to see the problem in the context of China s accession to the WTO and the still existing socialist system which affects the connection between international business transactions, Intellectual Property protection and human rights violations in China. I. WHAT IS THE ISSUE? Like in many other countries, China s early computer networking efforts centered on research and education activities in the field of computer science. 5 The central government paid little attention to these activities. 6 But the global Internet fever of the mid-1990 s awakened China s government and many other interests to the Internets commercial potential. 7 A. China s potential as fastest growing Internet market in the world Since 1995 the Internet is commercially available in the People s Republic of China after the State council gave the Ministry of Public Security overall responsibility for supervision of the Internet. In the four years following the establishment of Chinas first Internet-connected commercial computer network, Internet use in Chinas has grown rapidly from 900,000 to more than four million Internet users in 1999, 210 Million Internet users in January and 253 million Internet users in July 2008, which exceeds the estimated million Internet user in the US. 9 The surge of users in China has stimulated growth in the electronic commerce market, which is also promoted through the government. As a result of the explosively increasing business opportunities on the Internet in China, a wide range of foreign and Chinese companies have sought to expand into the Internet business, companies like, Microsoft, Yahoo! and Google. A big part of the Chinese companies are start-up companies run by an emerging group of Internet entrepreneurs, many of whom rely upon foreign investment in order to establish or expand their businesses. 3 5 see People s Republic of China State Control of the Internet in China See at Resistance to Internet Monitoring Grows in China 9 See at 4/21/2008 China vaults past USA in Internet users

5 4 China is a huge market in a booming economy with an enormous potential. Trade liberalizations make it an attractive market for U.S. companies to enter. Despite the pretended opening of the country, China s government has retained tight political controls with a subtle construction of different laws and statutes which apply to everybody who wants to provide any online service in China. This is to be seen in China s history of censorship. B. China s approach to censorship and copyright Preventing the publication of unauthorized materials has been a major goal of publishing regulations in China since the invention of mass printing during the Tang Dynasty (AD ), nearly two thousand years before Gutenberg. 10 Burning books with unwanted content has been known in China since Qin Shi Huangdi (247 BCE to 223 BCE), who is otherwise known for the Terracotta Warriors and the Great Wall, outlawed Confucianism and is reported to have buried alive many of its scholars. 11 All books other than those officially decreed were banned and burned. 12 In the Confucian tradition copying directly from the work of others was a compliment to the author rather than an infringement to his or her rights. 13 Interestingly, this tradition was in a way transported through the ancient times in modern society when the Chinese Communist Party (CCP) decided that intellectual property was to be seen as common property that offered the greatest benefits to society if used and shared without restriction. 14 As a result, free copying from the work of approved authors and artists was not only tolerated but encouraged, particularly under Mao Zedong. 15 Mao Zedong s Cultural Revolution has often been compared 10 See To Steel a Book is an Elegant Offence Alford, See Eastwood, 12 See Wikipedia, Qin Shi Huang, (last visited ). Wikipedia is an online encyclopedic source whose material may be altered by readers. 13 Montgomery/Keane Learning to Love the Market; Copyright Culture and China in Intellectual Property Rights and Communications in Asian Conflicting Tradition, Montgomery/Keane

6 with the Qin emperor s era. 16 Mao s Cultural Revolution ( ), officially pronounced as a campaign for a new socialist culture and to give young people born under the new regime the experience of a revolution served rather as a brutal cleansing force to eradicate the opposition. 17 On June 4, 1989, the Chinese military opened fire on a crowd of protesters demonstrating against Communist Party leadership, killing perhaps as many as 7,000 and wounding more than 20, The next day the Chinese government denied that anyone died in Tiananmen Square. 19 The Tiananmen killings are probably the best-known example of the effort s of the Chinese government to suppress information. Controlling content rather than protect the interests of authors or promoting creativity and innovation continues to play an important role in the Chinese information policy. Though Chinese law officially provides for freedom of speech and of the press, the government does not respect these rights in practice. The relevant passages of the Constitution read as follows: Article 35. Citizens of the People's Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration. Article 36. Citizens of the People's Republic of China enjoy freedom of religious belief. No state organ, public organization or individual may compel citizens to believe in, or not to believe in, any religion; nor may they discriminate against citizens who believe in, or do not believe in, any religion. The state protects normal religious activities. No one may make use of religion to engage in activities that disrupt public order, impair the health of citizens or interfere with the educational system of the state. Religious bodies and religious affairs are not subject to any foreign domination See Wikipedia, Cultural Revolution, (last visited ) See Eastwood, at See Wikipedia, Tiananmen Square (last visited )

7 Article 37. The freedom of person of citizens of the People's Republic of China is inviolable. No citizen may be arrested except with the approval or by decision of a people's procuratorate or by decision of a people's court, and arrests must be made by a public security organ. Unlawful deprivation or restriction of citizens' freedom of person by detention or other means is prohibited; and unlawful search of the person of citizens is prohibited. Article 38. The personal dignity of citizens of the People's Republic of China is inviolable. Insult, libel, false charge or frame-up directed against citizens by any means is prohibited. Article 39. The home of citizens of the People's Republic of China is inviolable. Unlawful search of, or intrusion into, a citizen's home is prohibited. Article 40. The freedom and privacy of correspondence of citizens of the People's Republic of China are protected by law. No organization or individual may, on any ground, infringe upon the freedom and privacy of citizens' correspondence except in cases where, to meet the needs of state security or of investigation into criminal offences, public security or procuratorial organs are permitted to censor correspondence in accordance with procedures prescribed by law. 6 C. Internet Filtering as the newest tool of censorship Filtering the Internet seems to be especially interesting for the government of the People s Republic of China, since it might offer the opportunity to gain ultimate control over all kinds of publications, especially from people who want to criticize the regime or simply think different from the official line. From the technical point of view the Internet software can work in various ways, it can identify requested sites by comparing sites with previously used URL s as bad, it can block incoming data if it contains undesirable keywords or file types and identify copyright infringement by searching for attachments that prove the files were acquired legally etc. It is up to each country to decide if and to which level it wants to use Internet filtering.

8 7 The Internet is a packet-switched network, meaning it is designed in a way that data files are sent around in small packets. 20 Censorship can thus be treated as if one part of the network is down. People with sufficient technical knowledge will find a way to reach the blocked information. However, as the Internet population grows, the majority consists of users that do not have required the necessary technical knowledge. 21 In China, any information products are supposed to be inspected for quality and content. Literary, cinematic and auditory works are supposed to be censored either upon entry into the country, or through the regulation of publishing establishments. 22 During the Cultural Revolution, foreign literature and art forms, religious works and symbols, and even arte facts of ancient Chinese culture were deemed reactionary and became targets for destruction by teams of the Red Guard. 23 Although much greater cultural freedom exists in China today in compare to the days of the Cultural Revolution, China keeps the policy of censorship. 24 The interest of the Chinese to earn money in businesses with foreign countries and especially the USA may not be mistaken as openness or transparency in policy. During the Olympic Games the Chinese government did not keep its promise of an unlimited access to the Internet for the accredited journalists at the Main Press Center. 25 The Internet poses a new challenge to such censorship, both because of the breadth of content typically available, and because sources of content are so often remote from Chinese jurisdiction and therefore much more difficult to penalize for breaching restriction on permissible materials. 26 For example, the government encourages Internet access through cybercafés rather than in private spaces so that customers surfing can be 20 See Cyberlaw Bellia, Berman, Post, See Big Mama is watching you S. R. Landsberger, page See Learning to love the Market: Copyright, Culture and China Montgomery/Keane NYTimes from See Empirical Analysis of Internet Filtering in China Jonathan Zittrain and Benjamin Edelmann

9 physically monitored by others in the café. 27 But there are huge efforts to monitor not only selected but all Internet traffic. The Beijing Municipal Bureau announced in August 2007 that it would begin using animated police officers on certain websites to remind users to stay away from illegal content. 28 And the restrictions continue. According to an October 16, 2008 Xinhua article, by mid December 2008 all Internet cafes will be required to install and use a machine consisting of a digital camera and ID scanner. First-time customers wishing to use a computer at a cafe will be required to stand before the machine, known as the Beijing City Internet Cafe Internet Access Registration Device, which will photograph the customer, scan his or her ID, and forward the information to the Beijing Cultural Law Enforcement Agency. 29 Officially, the new measures are intended to prevent multiple persons from the using the same ID, a ploy sometimes used by young people who do not meet the minimum age requirements. The procedures for censoring materials on the Internet have given the regulators some technical difficulty, but have generally been carried out by blocking sites which display materials considered objectionable. 30 The Filtering used to work in a rather bold way, which means the error 401 popped up and certain web sites were and are not accessible from mainland China. For example, the Great Firewall of China filters out materials that relate to democracy, certain events in Chinese history, like Tiananmen, and anything else that is not considered moral by the government, which can be literally everything. 31 As with most filtering regimes, whether implemented at the client, ISP (Internet Service Provider), or government level, there is no list made available of the sites blocked or of the methodologies used to block them. 32 The government-connected Internet Society of China has asked Internet service providers and content creators to sign a pledge including selffiltering, one of the few statements which document the existence of Cheng 32 See retrieved 09/29/08 See Jacqui Cheng und Chinesische Mauer 2.0 in Der Spiegel Nr.18/2008 Xinhua from See Bullock/Wie Wun ng at See China to begin web monitoring with clippie-style animated police Jacqui See Zittrain/Edemann

10 9 government-maintained web filtering. 33 The Berkman-Center for Internet & Society in Harvard has made a comprehensive investigation on the growing sets of methods by which Internet filtering is accomplished, and collected a list of blocked sites and pages. 34 Blocked sites include sites about democracy and human rights generally and sites specific to China. The blocked sites included Amnesty International, Human Rights Watch and the Hongkong Voice of Democracy. 35 II. THE YAHOO! CASE On the eve of the 15th anniversary of the Tiananmen massacre, the Chinese government issued a directive forbidding journalists from covering anything related to this anniversary. When Shi Tao, a Chinese poet and journalist received this directive by he hit the Forward button on his Yahoo! account and sent the government s message to a NGO overseas that advocates a democratic change in China. 36 The directive had warned Chinese journalists of possible social unrest during the anniversary of the June 4 movement (in memory of the Tiananmen crackdown) and directed them not to fuel it via media reports. 37 In addition to publicizing this government directive, Shi Tao had also written essays and articles highlighting issues around the pro-democracy movement, including an April 2004 essay criticizing the detention of Deng Zhilin 38, founder of the Tiananmen mothers foundation which seeks information about what happened to victims of the 1989 crackdown See 34 Of 204,012 distinct web sites were requested, more than 50,000 were inaccessible from at least one point in China on at least one occasion. Adopting a more conservative standard for determining which inaccessible sites were intentionally blocked and which were unreachable solely due to temporary glitches, sites were found inaccessible from at least two distinct proxy servers within China on at least two distinct days. 35 Zittrain/Edelman 36 See Tom Lantos, House Commitee on Foreign Affairs, statement from Nov. 6, 2007, 37 See Business and Human Rights Yahoo! in China background 38 Deng Zhilin is and advocate of relatives for those who died during the Tiananmen crackdown, see interview with Rebecca MacKinnon on 39 See Interview with Rebecca MacKinnon on CNN.com

11 When the Chinese government investigated, who had publicly disclosed this document, they went to the offices of Yahoo! China and requested the company to provide the key. The company complied with the request from the Chinese political inflammatory apparatus and provided the necessary identifying information to track down Shi Tao. Shi Tao is now serving a ten-year prison sentence in China for sending this to the US. He was accused of illegally providing state secrets to foreign state entities after sending the summarizing an Internal Communist Party directive to a source in the US. This is a particular disturbing case, because Yahoo! provided specific information about an individual user. Linking to a specific user is information only Yahoo! would have access to. This information was not demanded by a court order and in forwarding the Shi Tao committed no crime. Shi Tao was imprisoned solely for the legitimate exercise of his right to freedom of speech as guaranteed under Art.35 of the Chinese Constitution. 40 After Amnesty International raised its concern openly in November 2005 it received a response from Yahoo that reads in parts as follows: The choice in China or other countries is not whether to comply with enforcement demands for information. Rather, the choice is whether or not to remain in a country. We balance the requirement to comply with laws that are not necessary consistent with our own values against our strong believe that active involvement in China contributes to the continued modernization of the country as well as a benefit to Chinese citizens through the advancement of communications, commerce and access to information. 41 Individuals who subscribe to accounts in China are given a term of service (TOS) agreement that differs substantially from the US Yahoo! and Hong Kong user agreements. 42 The China user agreement holds users accountable for domestic laws proscribing content considered to endanger national security, including vague state secret laws. Therefore, IT companies filter the results of See text of the Constitution on page 6 41 See excerpts from the Congressional hearing held on February 15,

12 searches, conducted in China, in compliance with Chinese government regulations and as a result, Internet users conducting searches on issues such as democracy, religion or human rights, will only being able to access pages with government-approved content. 43 Despite being faced with the tragic case of Yahoo! s role in Shi Tao s arrest and detention, and possibly similar past detentions of other Internet dissidents, Yahoo denied in the Congressional Hearing on February 15, 2006 any responsibility for investigating how user information was being utilized by the Chinese government. 44 In the beginning of the Congressional Hearing, the company had only taken minimal steps to demonstrate a serious commitment to addressing the root causes of these issues, and still not explicitly called for Shi Tao s release or established a comprehensive human rights policy III. PROTECTION OF FREE SPEECH INTERNATIONALLY AND IN CHINA The protection of free speech nationally in China and internationally remains urgent, since freedom of speech violations happen nearly daily, but only the prominent journalists and writers get international attention. One of the latest, the journalist Hu Jia was accused of incitement of subversion, and sentenced on Thursday April 3, 2008 to 3-1/2 years imprisonment by the Beijing Number One Intermediate People s Court for inciting subversion of state power. 46 He wrote and published regime critical articles on the Internet through a US web site, provided testimony before the European Parliament and criticized China s human rights record and the Beijing Organizing Committee for the Games of the XXIX Olympiad. 47 Even foreign journalists are at risk. As a consequence of the CCP s crackdown on dissident journalists, foreign journalists were in 1999 not allowed to cover ceremonies to commemorate the tenth anniversary of the 1989 Tiananmen Square massacre See Protocols of the February 15, 2006 Congressional Hearing of the Human Rights Caucus 45 See 46 See the Indictment of the Beijing Number One Intermediate Court in English at 47 CECC annual report 2007, page See Chinese President Reminded 48 Journalists Jailed in His Term; The Freedom Forum Online at

13 Also, a German reporter for Der Spiegel was expelled from the PRC in 1998 and ordered not to return for five years. 49 A. Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights Free speech is protected through several international treaties, including the United Nations Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights which China signed in 1998, but has not ratified until today. Art. 19 of the ICCPR states that Everyone shall have the right to freedom of opinion and expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally in writing or in print or through another media of his choice. This Article is nearly identical with Article 19 of the Universal Declaration of Human Rights, which states that Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless to frontiers. On this international level it is always the question how a country deals with the reciprocity and conflicts between treaties and its domestic laws. In this aspect various countries have different practices. The position of general treaties and important agreements in China is lower than that of the constitution but is equal to the status of national basic law. 50 International human rights standards allow for restrictions on freedom of expression under limited circumstances. Art. 19 of the ICCPR provides that such restrictions must be provided by law and necessary for the respect of the rights or reputations of others or of public health or morals See Deutsche Presse Agentur Nov.19,1998 U.S. Protests China s Expulsion of German Journalist and Der Spiegel 48/1998 vom See Application of WTO Rules in the Chinese Court of Law, Rao Geping, 6 J. Chinese& Comp.L ICCPR. art. 19. Article 29 of the UDHR states the following: everyone shall be

14 13 Chinese officials say that their restrictions on freedom of expression are in accordance with law 52 and at times cite national security or public safety concerns 53. Chinese law, however, does not require officials to prove that their actions are necessary to protect national security of public order and only vaguely defines crimes of endangering national security or disturbing policy order, allowing officials broad discretion to punish peaceful activity. 54 B. Compliance with WTO prohibitions China has gradually formulated most of the domestic legal rules required by the many multilateral and bilateral international agreements which it has concluded, including its World Trade Organizations commitments. The U.S. China Economic and Security Review Commission addresses the question of access of Information and Media Control in the People s Republic of China, which is one the core issue of free speech and privacy. It addresses the issue exclusively in the trade framework, but mentions the problems for Internet Service providers and others companies operating in China. 55 By putting up these barriers, China is violating numerous provisions of the General Agreement on Tariffs and Trade (GATT), for example Article XI:1 because the blocking and filtering measures constitute administrative rulings of general application that operate de facto ruling on which products are permissible to import and distribute to Chinese customers. This could help in the argument with the Chinese Government about the human rights questions because the solving of the addressed trade violations has direct influence in the area of free speech and privacy. subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the justice requirements morality, public order and the general welfare in a democratic society. 52 See, e.g., Ministry of Foreign Affairs, Premier Wen Jaiobao Answered Questions at Press Conference. 53 See, e.g. Ministry of Foreign Affairs (online), Foreign Ministry Spokesperson Qin Gang s Regular Press Conference on March 25, 2008, March 26, See China Human Rights Defenders (online) Inciting subversion of State Power: A Legal Tool for Prosecuting free speech in China January 8, See Testimony before the U.S,-China Economic and Security Review Commission June 18, 2008

15 14 C. U.N. Convention against torture This convention is a glaring exception since China failed until today to enact the comprehensive prohibitions. 56 In its report from November 21, 2008 the Committee against torture acknowledged that China has invited and received a visit from the Special Rapporteur on torture in November-December The Committee further notes that the Government of China has also received the Working Group on Arbitrary Detention twice. 57 The committee has identified three overarching problems that impact all other issues: the 1988 Law on the Preservation of State Secrets in the People s Republic of China, the reported harassment of lawyers and human rights defenders and the abuses carried out by unaccountable thugs who use physical violence against specific defenders, but enjoy de facto immunity. 58 Especially the 1988 State Secret Law prevents any public process of determination as to whether a matter is a state secret and the possibility of appeal before an independent tribunal. 59 The problems addressed by the Committee seem to be a vicious circle because they prevent international intervention for the issues which need intervention by the international community. D. Protection of Free Speech in China Art. 35 of the Chinese Constitution protect free speech. Therefore, Chinese laws making Internet filtering and censorship mandatory are in direct contravention to the Constitution. From the understanding of the first amendment or a Continental Europe Constitution like the German Grundgesetz (Basic Law) it would be sufficient to defend against censorial impositions. Unfortunately, the Chinese Constitution does not grant rights against the government, and Chinese courts are not willing to apply Constitutional provision while judging cases See China s reform Era Legal Odyssey, Jerome A. Cohen, page See Committee against Torture, Advanced unedited Version Consideration of reports submitted by states parties under Article 19 of the Convention November 21, China s Courts: Restricted Reform, Benjamin Liebman, The China Quarterly, 2007, page 620

16 E. Cause of Action in American Courts for People Affected by U.S. Torts Abroad The application of U.S. law does not come up directly, when you think about Yahoo s complicity in Chinese censorship. But when two relatives of Shi Tao sued Yahoo! for having willingly handed over information about his online pro-democracy writing to the Chinese authorities, 61 this question came up. This motion is the latest development in a long-running dispute over the responsibilities of U.S. Internet companies in general to protect the anonymity of users in the foreign countries where they operate. There are several laws under which a U.S. company aiding censorship may be held responsible. The Alien Tort Statute (ATS) confers original jurisdiction on U.S. federal district courts over any civil action by an alien for a tort only, committed in violation of the laws of nations or a treaty of the United States. 62 For a plaintiff to succeed on an ATS claim the claim must be filed by an alien and the claim must be for a tort against a U.S. Internet company for infringing his or her right o free speech. There are several difficulties, one of which is the fact that infringement of free speech does not create a tort violation, but looking at the result the threat of the suit seemed to be very successful: The suit filed from Shi Tao s relatives lead to a 17 Million Dollar settlement! 63 Furthermore, on January 1, 2008 Yahoo! and the Laogai Research Foundation created the Yahoo! Human Rights Fund to assist victims of 64 Internet censorship and other political prisoners in China. The establishment of this fund marks an important contribution to human rights in China, particularly to protection of freedom of expression and thought. 65 Work supported by the fund will help address the very serious concerns raised by many human rights organizations and journalists regarding corporate self-censorship practices and the disclosure of individuals private information to Chinese law enforcement authorities See at and Alien Torts Claim Act, 28 U.S.C (2000) See Yahoo Settles with Chinese Families, Washington Post

17 F. Legislative Initiative in the U.S. through the Global Online Freedom Act 66 The purpose of this act is to promote freedom of expression on the Internet, to protect United States businesses from coercion to participate in repression by authoritarian foreign governments, and for other purposes. Though the bill lists at least fifteen states 67 that engage in information blocking, restriction and monitoring, it is written with a focus on the actions of the Chinese Government. The findings sections discusses the attempts by the Chinese government to suppress news of the SARS (Severe Acute Respiratory Syndrome) outbreak in 2004, as well as the general use of censorship in China and its deleterious effects on China s relationship with the United States and the countries of East Asia. 68 To comply with this threat, the Global Online Freedom Act seeks to transform the behavior of both the public and private sectors in America in order to put pressure on the Chinese and other offending governments. 69 The bill seeks to ensure business compliance by instituting reporting procedures aimed at creating transparency in search engine filtering and by imposing penalties and a private right of action against violators. 70 Nevertheless it is unlikely that the bill will be enacted this way for a number of reasons: The goal of reaching the Chinese population would probably be missed because many U.S. companies, don t run their business themselves in China, but operate through local owners. For example, Yahoo! Inc. runs its China operations through Alibaba.com, of which it owns only a 40 % stake. 71 As a result Yahoo! would be unaffected by the Act and its work in China immune from liability. Google operates its Google.cn business under a license owned by a local company, Ganji.com, but the concrete conditions of the license and the percentage of stake are unknown. 72 More important, the U.S. has no right Global Online Freedom Act of 2007, H.R. 275, 110 th Cong. 2 (7). 67 Belarus, Burma, The People s Republic of China, Cuba, Iran, Libya, the Maledives, Nepal, North Korea, Saudi Arabia, Syria, Tunisia, Turkmenistan, Uzbekistan, and Vietnam block, restrict, and monitor information to their citizens. 68 2(11)-(13) 69 See Eastwood (b), See Yahoo buys Stake in Alibaba 72 See

18 to impose their right on other nation, even those with oppressive regimes, and would not want this to happen vice versa. G. Uproar of Chinese Internet Users in China Watching YouTube, you can follow a movement coming from inside the Chinese user world that seems to be surprisingly successful and deserves attention. You can watch how Chinese Internet users are getting organized on the web and demand social change by displaying clips like China Stand Up! 2008, Who is monitoring what you write? The Great Firewall of China and Resistance to Internet Monitoring Grows in China. 73 These might be little steps but they show that the contradiction between the ideological approach of the CCP and the social development grows and people not only want to be consumers, but citizens with their own opinions. It remains to hope that this approach won t end like the demonstrations on Tiananmen Square. 17 IV. COPYRIGHT PROTECTION IN CHINA The recognition of a person s right to intellectual property in the US is based on the Federal Constitution, which grants congress the power to regulate such rights, 74 in contrast, the constitution of China after its implementation in 1949 did not mention intellectual property rights according to the Chinese tradition of honouring the author by using his work - without permission - and the communist doctrine to deny all forms of private property. 75 The Chinese Communist Party s attitudes to the role of culture have had profound impact on the development and implementation of copyright law. 76 In 1987, The Constitution of China was amended and according to this change the newly enacted General Principles of the Civil law in the PRC provided copyright protection for the first time. 77 Following the massacre of June 4, 1989 on Tiananmen Square these rights were restrictively interpreted since the Chinese Government did not want to spread any information about the uproar. 73 See 74 U.S. Constitution, Article I, Section 8 75 Montgomery/Keane Learning to Love the Market 76 Montgomery/Keane Learning to Love the Market: Copyright, Culture and China in : Intellectual Property Rights Communications in Asian Conflicting Tradition, Chapter 8 page Constitution of the People s Republic of China, Article 62

19 18 However, recent developments are prompting China s leaders to acknowledge intellectual property rights and to make some attempts to manage these 78, the normalisation of China s trade status following WTO entry has begun to foster more rights focused business models, but the slow pace at which copyright has been incorporated for example into the production and distribution of film and television in China is a reflection of the domestic political and ideological agendas that have prevailed since The Copyright law of the People s Republic of China was adopted on September 7, 1990 and amended on October 27, The 2001 copyright law is the general prevailing law as to copyright. Where software is concerned, the 2002 Software Regulation is the specific regulation of copyright pertaining to software. 81 The 2001 copyright law broadened the scope of protection, when the law expressly provided the right to Internet transmission or dissemination on electronic networks a right of the copyright owner. You could argue that this right is violated through the Chinese censorship regime because the censorship affects the way people can publish and distribute their works. The copyright law does not distinguish between desirable and undesirable content and therefore the 2001 copyright law could give an cause for action by providing the right to Internet transmission and dissemination. Shi Tao and Hu Jia exercised their right of transmission when they submitted their political essays to the Internet. V. CORPORATE RESPONSIBILITY The core of this issue is the fact that police come every day to technology companies to ask for information about their users. It is a fair point for these companies that they cannot know much about the reason for the police s inquiry. It could be complete legitimate, for example in an effort to prevent a crime from happening or bringing a criminal to justice Montgomery/Keane, Montgomery/Keane,

20 19 In the United States and in Germany, these requests come in the context with the rule of law, including a formal reliance on due process. 82 A. Obligation to abide? This problem is even harder in the Chinese context. In Yahoo s 2006 testimony, Michael Callahan, the executive vice president and general counsel, claimed that Yahoo! did not know the reasons for the Chinese state police s request about Mr. Shi. He said: The Shi Tao case raises profound and troubling questions about basic human rights. Nevertheless, it is important to lay out the facts. When Yahoo! China in Beijing was required to provide information about the user, who we learned later on was Shi Tao, we had no information about the nature of the investigation. Indeed, we were unaware of the particular facts surrounding the case until the news story emerged. 83 Under normal circumstances in the USA or in a Continental European country the company would have denied the information unless a warrant was shown to prove the legitimacy of the demand. B. Internet Governance The impacts of Internet companies on human rights must be viewed in the context of how the Internet is governed and regulated nationally and internationally. This is a controversial topic provoking strong opinions by governments, business and civil society. 84 The UN promoted a World summit in the Information Society (WSIS) involving 175 countries in two phases (Geneva 2003 and Tunis 2005) to try to develop a framework for global Internet governance See The Shi Tao Case, and the Benefit of the Doubt John Palfrey, Berkman Center at Harvard Law School, October 17, See Congressional Testimony from February 15, Working definition of the working group on Internet Governance of the UN: Internet governance is the development and application by governments, the private sector, civil society, in their respective roles, of shared principles, norms, rules, decision making procedures, and programs that shape the evolution and use of the Internet. See at 85 See World Summit on the Information Society

21 20 1. Position of Human Rights in China Human Rights in China (HRIC) have submitted a written statement to the Senate Judiciary Committee Subcommittee on Human Rights and the Law to identify the China related issues. In their statement the human rights obligations of the Internet and communications technology (ICT) have two aspects: (1) to avoid corporate complicity with repressive uses of technology and (2) to harness ICTs to advance freedom of expression and freedom of information Ruggie Report The UN special representative of the Secretary General (SRSG) on business and human rights, John Ruggie, has articulated a helpful framework in his final report to The United Nations Human Rights Council, 87 which was presented on June 3, Ruggie notes that the baseline responsibility of companies is to respect human rights throughout their operations and in business relationships connected to these activities. 88 The corporate responsibility is no longer merely a moral obligation, because the duty to respect human rights includes the duty to avoid complicity in human rights violations committed by others. 89 Ruggie sets out that the different players in this framework, like civil society, governments and the Internet and communications technology (ICT) community, have different roles. The U.S government regulates the activity of businesses, promotes the interests of U.S. based businesses abroad and engages in international norm building in a variety of international fora, like the World Summit on the Information Society and Internet Governance Forum. Ruggie recommends that Congress should strengthen domestic legal and market pressures to regulate the behavior of U.S.-based corporations abroad. The Foreign Corrupt Practices Act is a good example of the developing trends in addressing corruption. A similar act would be desirable for addressing the free speech and privacy issue on the Internet. 86 Global Internet Freedom: Corporate Responsibility and the Rule of Law written statement of human rights in China May 20,2008, Senate Judiciary Committee, Subcommittee on Human Rights and the Law 87 John Ruggie, Protect, Respect and Remedy: a Framework for Business and Human Rights, April 7, 2008, U.N.Doc 4/HRC/8/5, see at 88 See 89 See

22 21 A very important issue is the post-olympic use of American technology and fast developing technological convergence when crafting legislation. The post-olympic use of surveillance and security technology provided by U.S. based companies as part of the Olympics 2008 must be addressed and monitored. 90 The Ruggie approach is convincing and most important doable. The deliberations about the report continued on November 6, 2008 during a summary of the International Law discussion group at Chatham House, London Chatham House International Law Discussion Group Gerald Pachoud, the Special Adviser to the Special Representative of the UN Secretary General on Human rights and Transnational Corporations, informed the meeting that the policy framework was welcomed by the Human Rights Council and that Professor Ruggie s mandate is extended to summer The policy framework, set out by Ruggie, is premised on three core principles, namely the State s duty to protect, the corporate responsibility to respect and the need for effective remedies. 92 State responsibility is a well known core in international humanitarian law. The demanded corporate responsibility to respect is a shift from State obligations to Non-State obligations. However it is primarily States, not transnational corporations that have the duty to protect human rights abuses. But the human rights community has accepted his position because it prevented a State from using companies as scapegoat for its own failings in the duty to protect against human rights breaches. 93 Peter Frankenthal from Amnesty International added that the NGO community has to discard its allegiance to the UN Norms as the only route towards corporate responsibility, as well as transnational corporations have had to change the view that, wherever they operate, they adhere only to national laws 94, the argument made by Yahoo! during the Congressional Hearing in February See See Business and Human Rights: Closing the Gaps at See See See Peter Frankenthal, Commentary on the 2008 report

23 Frankenthal noted in addition that special attention should be put on the role of international financial institutions, which are not mentioned in the Ruggie report. 95 International finance is central to the business and human rights project. For example, development banks are generally involved in financing international projects and the weakness of their performance is diluting the other efforts. The Access to remedies seems to be extremely important, but also complex issue because the legal framework operates still like it did prior to the globalization phenomenon. As visible in the Yahoo! example, parent companies and subsidiaries are still generally treated as separate legal entities where the parent was the sole shareholder. This framework made it difficult to address supply chain abuse RConversation and the setting of global principles Rebecca Mackinnon is a journalism professor at the University of Hong Kong, former Berkman fellow and co-founder of Global Voices, who tries to set a process to establish of global principles on free speech and privacy protection for internet and telecoms companies. 97 The process is about helping companies find a way to do business in China in all major markets, while doing all they can to protect their users interests against government encroachment globally. 98 She especially emphasizes the underlying corruption problem when vague laws (making it illegal to post content spreading rumors for example), the result is that companies with the best personal relationships with government regulators win, which means that local companies always have the advantage over foreign companies. The same happens in terms of who gets punished by regulators for not properly interpreting the vague regulations in which much gets left unsaid. 99 Mackinnon reports that apparently people who work for Baidu 100 regularly call up government regulators to tattle on them and pointing out politically sensitive material appearing in Google.cn searches, even though searches are already censored. This leads to intensified censorship See 96 See 97 See Rebeccy MacKinnons ongoing conversation with the World Wide Web since 2004 at June 26, Baidu is a Chinese search engine

24 23 VI. POSSIBLE RECOMMENDATIONS As shown in the paper, there are many things which can t be changed in China at the moment, since the Communist Party is still leading the country and there is no sign that this could change any time soon. The Communistic approach of control is not compatible with the openness and the free flow of information on the Internet. It is most important that Transnational Corporations are forced to take responsibility with respect to rights that fall within their respective spheres of influence. It is further important to try to promote a rule of law in China through capacity building and human rights dialogues at various levels of formality. The issues of Internet freedom, censorship, and surveillance, including the right of individuals detained for exercising their right of freedom of expression, must be included in the agenda of these initiatives. 101 The governments of the United States and of the countries of the European Union officially urge China to follow basic human rights principles. Too often the economic interests outweigh the necessary confrontation with the Chinese government. As seen in the preparation and during the Olympics, China is not willing to fulfill its own announcements in terms of freedom of the press and freedom of speech. It is the responsibility of the world community to claim those rights. Practically speaking, the developing of industry-wide standards that are specific and also drawn upon international standards is most important. IT industry groups should adopt industry wide standards for doing business in countries with repressive regimes. This can only be effective if these standards are specific, include effective monitoring and reporting provisions and are operationalised throughout the company. 101 See Yahoo shareholders reject anti-censorship proposals by Nate Anderson