Saturday, September 10, 2005
In a news release dated Sept. 6, Reporters Without Borders has criticized Yahoo! because Yahoo! Holdings (Hong Kong) Ltd. (hereinafter "Yahoo HK") "provided China’s state security authorities with details that helped to identify and convict" journalist Shi Tao.
- For details of the case, try this Google search.
- For a copy of the verdict in Chinese and in English (translated by the Duihua Foundation), click here or here: Download ShiTao_verdict.pdf
This post is not going to examine the merits of the case against Shi. What I want to discuss is an interesting sentence in the news release, where it says, "[T]he company will yet again simply state that they just conform to the laws of the countries in which they operate . . . . But does the fact that this corporation operates under Chinese law free it from all ethical considerations?" According to a Reuters report, Yahoo! did indeed subsequently make precisely this claim in a statement emailed to Reuters by Yahoo HK:
"Just like any other global company, Yahoo! must ensure that its local country sites must operate within the laws, regulations and customs of the country in which they are based," Yahoo spokeswoman Mary Osako said in a statement e-mailed to Reuters by the firm's Hong Kong arm.
RWB may have accepted Yahoo's claim too easily. Assuming that Yahoo HK is, as it appears to be, a Hong Kong entity, then it is not generally subject to PRC law. It is, of course, subject to Hong Kong law. But Article 18(1) of the Basic Law, the PRC statute that serves as Hong Kong's constitution, states: "National laws shall not be applied in the Hong Kong Special Administrative Region except for those listed in Annex III to this Law." Annex III to the Basic Law lists the following laws:
1. Resolution on the Capital, Calendar, National Anthem and National Flag of the People's Republic of China
2. Resolution on the National Day of the People's Republic of China
3. Order on the National Emblem of the People's Republic of China Proclaimed by the Central People's Government
4. Declaration of the Government of the People's Republic of China on the Territorial Sea
5. Nationality Law of the People's Republic of China
6. Regulations of the People's Republic of China Concerning Diplomatic Privileges and Immunities
None of these would seem to provide any basis for requiring a Hong Kong company such as Yahoo HK to hand over information to the PRC authorities, and the company has not to my knowledge claimed that any Hong Kong law required it to do so. If Yahoo HK were a wholly-owned subsidiary of a PRC-domiciled company (let's call it "Yahoo China Parent"), then there would be a plausible case for saying that Yahoo China Parent could be required by the Chinese government to cause its wholly-owned HK subsidiary to do certain things. But since Yahoo HK is listed as a subsidiary of Yahoo!, Inc., the US parent, in the latter's most recent Form 10-K (Annual Report for 2004, dated March 11, 2005), then it seems that no entity in the chain of control is under PRC jurisdiction and required to comply with PRC law. Whether or not to comply with a request or demand for information becomes just a business decision.
The facts here are complicated and I may have got some wrong. I am opening this post to comments if anyone can add more factual details or legal analysis. (There are many other places on the web to rant against Yahoo!, so please don't do so here.)