Yahoo! Free speech in China

The publication and republication of (offensive) caricatures of the Prophet Mohammed provided, to many, an opportunity to revisit the contours of the right to freedom of speech and expression. Without consciously taking sides in the debate as it unfolded in On Line Opinion and elsewhere, let me introduce to the discussion some more dimensions based on another controversy. The controversy is about Internet censorship in China which was reignited by Google’s recent decision to censor search results.

Apart from the censor, the Chinese Government, there are four main corporate players in the censorship saga. Beginning in 2003, Yahoo provided electronic details of cyber-dissidents to the Chinese authorities which lead to their incarceration. Learning from Yahoo, Microsoft adopted a soft approach and shut down an Internet blog of a Chinese journalist hosted at its MSN Spaces for discussing politically sensitive issues. Microsoft has now opened up this censored blog, but only outside China.

Most recently, Google agreed to self-censor search results of its new Chinese site: www.google.com.cn. The popular search engine will block results that include terms such as “free Tibet”, “democracy”, “human rights”, “Tiananmen massacre”, and “Falun Gong”. Finally, Cisco Systems is accused of facilitating such censorship by selling routing devices to China.

Some may ask what the big deal is. Censorship, with or without the Internet, is common in China (pdf file 2.02GB) and rights are severely restricted. Chinese citizens - irrespective of whether they have access to the Internet or not - do not enjoy any meaningful freedom of speech in any case. Such a contention, however, misses an important point regarding the efficacy of the Internet. Among others, because of its trans-border base and reach, the Internet was believed to nullify, to a large extent, the power of repressive states to control and censor the free flow of ideas within their municipal boundaries. However, the current controversy indicates that powerful states could prevail over the might of even the Internet, at least for now.

This is, however, not to suggest that Internet service providers are not (or should not be) subject to certain restrictions. Like many other rights, the right to freedom of speech, which includes the right to seek, receive and impart information, is not absolute. It could be reasonably restricted, say, on the ground of public order, health, morality, or the rights of others. For this reason, even corporations that are providing Internet services have to facilitate the freedom of speech, or of press, within such applicable limitations. For example, a corporation should not turn a blind eye to its website being used for inciting terrorism, promoting genocide, spreading social hatred, selling slaves, or facilitating music piracy for that matter.

The China factor

One natural question to ask is whether these giant corporations would have behaved elsewhere in the same way as they behaved in China. For example, would they have bowed to the censorship pressure of the governments of Myanmar or Zimbabwe? I very much doubt it. The reason is not difficult to identify; it is about commercial opportunism. One has to merely look at the speed at which the Internet market is growing in China. According to a survey report released by the Internet Society of China at the end of year 2005, China had 110 million Internet users (second only to the US), up from 103 million in 2004. In 2005, the total revenue from Internet users was about 186 billion Yuan, which is expected to rise at the rate of 52.5 per cent.

This perhaps explains why Yahoo, Microsoft and Google chose to follow the path of, as they put it, lesser evil. Apart from anything else, it also makes business sense not to annoy or pull out of China.

Corporate social responsibility (CSR)

CSR is the new mantra attracting the attention of almost everyone, from corporations to investors, consumers, media, NGOs, researchers, governments and international institutions. In addition to special corporations that have been constituted to do only CSR consultancy, there are specialised websites, journals and research centres devoted to exploring CSR issues. Despite all this, there is still a lack of consensus on what these “social” responsibilities of corporations are, how they could be balanced, if at all, with the primary objective of profit maximisation and how best they might be enforced.

It may, therefore, be interesting to examine the CSR commitment of the four corporations that allegedly helped China in censoring people’s freedom of speech. The four US corporations - Cisco, Yahoo, Microsoft and Google - are market leaders in their own fields and are generally seen as good corporate citizens. Cisco “strives to be a good citizen worldwide” and pursues a strong “triple bottom line”: profits, people and presence.

Yahoo takes prides in its “Yahoo! For Good” campaign and is “committed to making a difference in the world by empowering [its] users … with products and services that inspire them to make a positive impact”. Similarly, Microsoft “is committed … to help advance social and economic well-being and to enable people around the world to realise their full potential”. Additionally, the commendable initiatives taken by the Gates Foundation should not be forgotten.

Google, on the other hand, claims to make money “without doing evil”. It was, however, surprising not to find the names of Yahoo, Microsoft and Google in the list of Global Compact participants.

How do corporations explain the gap, as in this case, between their declared policies and practices? To begin with, it is safe to pass on the responsibility to states. The Joint Statement of Microsoft and Yahoo to the US Congress Human Rights Caucus illustrates this: “we think there is a vital role for government-to-government discussion of the larger issues involved” because in acting alone their “leverage and ability to influence government policies in various countries is severely limited”. Admittedly, states have the primary responsibility to ensure the protection and promotion of human rights, but this does not derogate whatever responsibility corporations have. If corporations have human rights obligations only subject to their profits, such obligations hardly serve any useful purpose.

Corporations also contend that withdrawal from markets makes no positive impact, as other companies would replace them in any case. Also, that by withdrawing they lose the chance of improving the human rights situation by active engagement with the local community and government. This is an attractive as well as workable, but historically weak, argument. Moreover, once profit takes precedence over principles, it is not easy to reverse the order.

Corporate complicity with states which are involved in suppressing human rights presents another difficulty. For example, Cisco may claim that it “does not in any way participate in the censorship of information by governments”. But it may be argued that complicity need not always be direct; indirect or silent complicity could also attract liability. The several actions against corporations under the US Alien Tort Claims Statute are quite revealing on this issue. The analogy may not be quite appropriate but, as Edwin Black shows in his book IBM and the Holocaust, it was IBM’s punch card machines that allowed the Nazis to identify and eventually eliminate Jews with ease and efficiency.

In fact, Cisco may find itself in the hot seat if it is proved that Cisco knew or had reason to believe that the supplied technology will be used by China or other countries for political persecutions. Principle 2 of the Global Compact, to which it is a signatory, is clear on this: businesses should “make sure that they are not complicit in human rights abuses”.

Global versus local standards

Another very common plea made by corporations is that in order to do business in different parts of the world, they have no option but to follow both global and local standards. This argument - which in effect mostly means adopting the inferior local standards - is echoed in the explanations issued by Yahoo, Microsoft and Google. For example, Google observes that although it is not its policy “to censor search results. In response to local laws, regulations, or policies, we may do so.” Perhaps Google may also contend specifically that its mission to “facilitate access to information for the entire world” required it to make some compromise with its “no evil” policy in China.

This global v local argument arguably has a limited application. Leaving aside certain peremptory human rights norms, it should have relevance to give effect to a given international human rights obligation. For example, what constitutes “freedom of speech” in the US is different from what it means in Australia or India and therefore, local standards of what amounts to free speech may be relevant. Similarly, an obligation to pay reasonable wages should not mean the payment of same wages to the workers, say, in the US and China. Also, this argument should not be stretched to apply to those situations where compliance with both global and local standards is by and large possible.

Yahoo, Microsoft and Google could have either continued to operate from servers located outside the mainland, or should have agreed to minimal case-by-case censorship rather than going for the overkill. This is more so because China has also signed, though not still ratified, the International Covenant on Civil and Political Rights, and is making some progress towards human rights realisation. Instead of putting more pressure on the Chinese government, Yahoo, Microsoft and Google opted for an easier and more profitable but less ethical option.

Unfortunately, at this stage, there is no concrete, legally-binding basis to blame any of  them for their stand. Had the UN Human Rights Norms for Corporations become binding, the relevance of paragraph 12 would have been tested in this case: “Transnational corporations and other business enterprises shall respect economic, social and cultural rights as well as civil and political rights and contribute to their realisation, in particular … freedom of opinion and expression, and shall refrain from actions which obstruct or impede the realisation of those rights.”