China Law Blog

its always dangerous to talk before reading, but from what I've heard about this case, I'd expect it to go the way of the attempts to sue Jiang Zemin and it will be dismissed...

totally agree.

I think Yahoo!'s interests are too big in China to stand up against the chinese enforcements on this topic. Too bad: Yahoo! could be braver and shield freedom of speech. For crying out loud: they are in the media! They could do what no one has done yet like making a big deal of the imprisoned, pointing it out to the world in a more concerned fashion. Sometimes it would help to have the nerve to serve a non-profit goal that is so necessary - with their potential.

This is indeed a very interesting case.

From a purely technical point of view, and even though I don’t know much about the American judicial system, I have no doubt that the plaintiffs’ claims will be dismissed. Unless the court is ready to declare Chinese laws – and thus the current Chinese government – illegitimate… The arguments of the defense are quite straightforward from this point of view.

From a more general point of view, however, this case may well be a coup. Whether Yahoo disclosed names voluntarily or under compulsion is irrelevant to the public opinion ; in both cases Yahoo did it in order to stay in China. Or, to put it more simply: Yahoo exposed political opponents to keep making money in China. It is certainly not as simple as that, but that’s probably what the public will remember from that case… And this kind of thing is pretty bad for a reputation (cf. the mini-scandal of Google accepting to censure its search engine to enter the Chinese market).

I agree with you Dan that this case could be very important for US companies doing business abroad : even if the case is dismissed (and it certainly will), companies will definitely keep in mind that complying with unethical laws draws a lot of bad publicity.

This reminds me, all things being relative, of a somewhat similar case that was recently tried in France when the SNCF (the French national railway company) was sued by families of Jew prisoners it had carried toward Germany during WWII. The plaintiffs’ lawyers argued in particular that :
1/ the State’s orders requesting these transports were illegitimate and should have been ignored ;
2/ the company did more than obeying State’s orders and took a proactive (and even beneficial) part in these ‘transports’.

The first argument was dismissed (the SNCF didn't really have a choice) but the second one, surprisingly, was retained and the company was ordered to pay damages to the plaintiffs (the decision has since been voided for incompetence, though).

Dan, this case is fascinating and so multifaceted legally and politically that it will likely become the stuff of scholarly law review articles, business news journals and blogs in many countries. Please keep us posted. Thanks. Todd

Jeremy,
"Jew" is a noun. You meant "Jewish" prisoners.
The verbiage notwithstanding, we would be interested to read the court decisions to which you refer; can you furnish a website which we can access? Thank you. Todd L. Platek

Wouldn't you say that in practice in China that the Chinese sometimes tend to make a distinction between form and substance?

I mean to say that there is compliance and then there is compliance. What exactly do we mean by compliance in the Chinese context?

I always "comply"; it's just that my way of complying is somewhat different from how other people "comply".

The story Jeremy mentions here is well-known in France. You can find info about it but unfortunately in French. (I am sure Dan will not have any problem to understand them! N'est-ce pas Dan?)
http://www.liberation.fr/actualite/societe/243680.FR.php
http://www.lefigaro.fr/debats/20060612.FIG000000067_la_sncf_n_est_pas_responsable_de_la_deportation_des_juifs.html

To my knoweldge, The French Railway Company (SNCF) was also sued in New York by Jewish Associations for the same reasons; however, the case was dismissed. Link (again in French)
http://www.fsa.ulaval.ca/personnel/vernag/eh/f/ethique/lectures/La SNCF et les trains de la mort.htm

Romain, Merci.
I don't read French, but would be patient to await Dan's translation, if you recommend. Todd

How far should "corporate responsibility" go? "Obey the law of the land", after all, is a Christian notion.

Following the same logic, how can anyone do guilt free business in Iraq?

I wonder if anyone is suing Blackwater USA for, not merely turning over computer logs, but actually torturing people.

b.cheng --

I am not so sure.

Ellen Liu --

With me or with the previous comment?

Riccardo --

Is that the job of a for-profit company with shareholders?

Jeremy -- The US courts like to think of themselves as the court for the world. I am not so sure it will be dismissed.

Todd Platek --

This case is so big and so important, nobody will need me to keep them posted, least of all you.

Todd Platek(ii) --

Good point with the language.

Steven Blayney --

I do not undertand your questions. Sorry.

Romain --

Oui, bien sur.

Todd Platek (iii) --

C n'est pas possible.

Charles Liu --

That is the big question. Not sure what Iraq has to do with it and I know nothing about Blackwater USA. Why do you always bring up other things in an effort to justify what goes on in China. I am not yet aware of a single reader who believes only China does bad things so your constantly mentioning what goes on in China likely has no impact on anyone, besides angering them. This is a blog on China. If it were on the United States, I can assure you that you would be seeing both good and bad on here about the United States. Hell, I can assure you that you already have seen both good and bad on here about the United States. Let's deal with the issues at hand.

Would it be incorrect to think that the US gov't has a case due to laws passed in the 70s and 80s regarding US companies engaging in corrupt practices with foreign governments? Those laws mostly cover direct bribes (don't they?) but in this case, Yahoo may have lied to the court about responding to an official request for information (perjury) and instead offered up this journalist's email to Beijing in an attempt to curry favor (aforementioned bribery of foreign governments).

Yahoo could get blended over this issue.

Dan, Ni tai qian xu!

Having read the whole brief this time, I'm still at a loss to see how this case is "big" or "important." This case, if not dismissed, won't go very far and in the end, Yahoo will win. Who is representing the other side? It just seems like an attempt to drum up some publicity about what Yahoo did and also attack the PRC, its desperate and its destined to fail. Is this case getting any play in the US media?

I'd be interested in reading the other sides brief and response as I'm still not seeing an actionable claim in the case.

Romain --

Merci pour les liens. Here is a link to a short English account of the SNCF case : http://www.guardian.co.uk/frontpage/story/0,,1792044,00.html

Dan --

"The US courts like to think of themselves as the court for the world". If I dared I would say that you can replace 'courts' by 'army', 'government', 'leaders', etc.

b.cheng --

Maybe you're right and it's just a desperate attempt to gain publicity. However, being an Internet and new technologies buff, I read daily a good dose of blogs and websites dealing with IT news. And believe me, I have seen this story mentioned (and heavily discussed) pretty much everywhere on those sites. The community of active Internet users -i.e. people Yahoo certainly care about- is very well aware of this case now, and their reaction is very 'emotional'. It doesn't mean this story will kill Yahoo, certainly not, but I think media companies in general and Internet companies in particular will keep it in mind for quite a while.

My question more directly is: Isn't Yahoo's argument that it had to comply somewhat intellectually dishonest to the extent that it presents a false choice (i.e.,to comply, or to break the law) when, in the Chinese context, there may be other alternatives?

The fact that many large Chinese companies do not have legal departments suggests that "compliance" may not have the same connotation in China as in other jurisdictions.

Thank you.