Chinese Law Prof Blog

Editor: Donald C. Clarke
George Washington University Law School

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Saturday, September 10, 2005

Criticism of Yahoo!'s role in prosecution of journalist Shi Tao

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.

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.)

September 10, 2005 in Commentary, News - Chinese Law | Permalink | Comments (3) | TrackBack (7)

Friday, September 9, 2005

Dog bites man

MSNBC's "Peculiar Postings", one of those websites that carries silly news stories with headlines such as "Bald German loses fight for toupee funding" or "Housewife burns down home trying to destroy spiders", recently carried an item poking fun at Nanjing for banning bald taxi drivers. According to the story, filed by Reuters, "In a bid to spruce up the city’s image, authorities in China's Nanjing are banning taxi drivers who are bald, wear their hair too long, have mustaches or wear too much makeup."

I found the original story in the Jinling [Nanjing] Evening News (金陵晚报) and discovered that it wasn't quite so silly as originally reported: it says that taxi drivers may not shave their heads bald, but does not prohibit the naturally bald from driving (仪容仪表整洁,男司机不蓄长发、怪发、不理光头、不留小胡子,女司机不浓妆艳抹,穿着得体大方). But more fundamentally, are these regulations really silly enough to rate an appearance in "Peculiar Postings"? I did a little more research and discovered that my intuition was correct: not only may private taxi companies in the United States impose dress codes of this nature on their employees (see, e.g., City Cab Co. of Orlando, Inc. v. N.L.R.B., 628 F.2d 261 (D.C.Cir.1980)), but local governments, at least to some degree, may do so as well (La Grande v. B & L Services, Inc., 432 So.2d 1364, 1367 (Fla. Dist. Ct. App. 1983)). So let's give Nanjing a break.

Incidentally, for a comparison of Beijing and Shanghai cab drivers, see the following:

September 9, 2005 in Commentary, News - Chinese Law | Permalink | TrackBack (0)

Thursday, September 8, 2005

Rural activist Chen Guangcheng seized in Beijing

The Washington Post reports that police from Shandong Province, where the city of Linyi is located, seized (in Beijing) Chen Guangcheng, "a blind peasant who has been preparing a class-action lawsuit to challenge population-control abuses in the eastern city of Linyi, . . . a few days after he arrived in Beijing for meetings with lawyers and journalists. He was seized just as the Chinese government opened an international legal conference here." The full story is available here.

Jerome Cohen, who had met with Chen in Beijing the night before to discuss his lawsuit and its risks, is quoted in the WP article:

"This seems to be a case of local officials who have blatantly abused their legal powers, and have no legitimate defense against the case he brought against them, resorting to extralegal methods to cut off his ability to pursue justice," Cohen said. "It's very, very sad, and another example of how rough the legal situation is in rural areas."

At least some sectors of the central government are said to be in support of Chen, thus reinforcing the familiar picture of black-hatted local officials against the white-hatted central government. But the local officials aren't forcing abortions out of sheer orneriness. They're forcing them because unplanned births are one of the many performance targets against which their performance is measured, and therefore on which their job prospects depend. And that performance target is set and measured because central policy says it should be.

As long as the central government insists that local officials be selected from above instead of elected from below, the Chinese political system is going to need a system of performance targets against which officials can be measured. As the current case demonstrates, it's very difficult to tell local officials: "Reach this target no matter what, but don't be too aggressive in how you do it." If the system doesn't reward moderation and humaneness, you can't expect local officials to have these qualities in abundance (something that might be said about any political system, of course).

September 8, 2005 in News - Chinese Law | Permalink | TrackBack (0)

Sunday, September 4, 2005

September issue of CECC newsletter now available

The September issue of China Human Rights and Rule of Law Update, the newsletter of the Congressional-Executive Commission on China, is now available. All issues since June, 2005 are available in PDF and HTML format here. For those who cannot access the CECC website, I am attaching the newsletter in HTML format here: Download cecc_newsletter__september_1_2005.htm

September 4, 2005 in Publications | Permalink | TrackBack (0)