Important efforts have been made in recent years to hold US corporations doing business abroad accountable under US law for aiding and abetting acts of torture and other major human rights abuses. In 1997, a groundbreaking case successfully initiated by EarthRights International challenged the practices of two US and French oil and gas companies – Unocal and Total – which supported and participated in forced labour, torture, and executions, in connection with the construction of a gas pipeline in Burma.
That precedent was taken a step further this year when two Chinese Internet users and their families filed a suit against Yahoo! for its complicity in handing over their identifying information to Chinese authorities, resulting in their arbitrary arrest, long-term detention, and abuse and torture, all for doing no more than exercising their right to expression. At issue in the case is whether US corporations doing business abroad have a legal and ethical responsibility to ensure that their actions do not materially contribute to torture and other major human rights violations. This is the first lawsuit against a US Internet company for its involvement in major human rights abuses.
The lawsuit has been filed under two federal statutes – the Torture Victim Protection Act (TVPA) and the Alien Tort Claims Act (ATCA) – authorising federal courts to hear claims raised by victims of human rights abuses. ATCA grants federal jurisdiction for ‘any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States’. The TVPA, which supplements ATCA, specifically confirms federal court jurisdiction to deal with acts of torture as defined by the law of nations and US treaties.
Using Yahoo!’s e-mail and discussion group services, one of the plaintiffs – Wang Xiaoning – published essays expressing support for democratic reform and a multi-party political system in China. Shi Tao, a Chinese journalist, used Yahoo!’s email service to send news dispatches describing government restrictions placed on journalists leading up to the 15th anniversary of the Tiananmen Square massacre. After Yahoo! turned over their identifying information to Chinese authorities, Wang and Shi were subjected to arbitrary arrest, long-term detention, abuse, and torture by Chinese officials. The Chinese courts that convicted them of revealing state secrets and subversion of state power cited Yahoo! numerous times as the source of the information leading to Wang’s and Shi’s arrests. Both men face several more years of imprisonment.
In defense of its complicity, Yahoo! claims that it had no other option but to comply with Chinese law. However, a number of other US Internet companies have successfully done business in China without providing the identifying information of their customers that would lead to their arrest, detention, abuse, and torture. Instead, these companies have chosen ways of conducting business in China that do not place Internet users in danger, from locating their servers outside China to not offering certain types of search, chat, and blogging software in China. While these alternatives are not desirable, they are less abusive than causing individual users’ arrests and torture.
One of the primary reasons that other Internet companies have opted for these alternatives is to avoid providing support for China’s well-known record of arresting and torturing human rights advocates – a record that Yahoo! should have been aware of when it decided to do business in China. Months before Wang was detained, several human rights organisations put Yahoo!’s executive officers on notice that Chinese authorities were engaging in a campaign of repression and abuse of journalists and human rights advocates in China. Additionally, US State Department Human Rights Reports have continuously cited China’s dismal human rights record, and have carved out a special section highlighting that country’s practice of seeking to silence journalists and other advocates under state secrecy and state subversion claims.
Human Rights USA has rejected Yahoo!’s claim that it was simply carrying out the requirements of the host country where they do business. China’s constitution protects the exercise of free speech rights, raising questions as to whether the requests for information sent to Yahoo! by Chinese authorities were lawful. But even if such requests are lawful, Yahoo! is bound not only by the laws of its host country, but by the legal standards of the United States and the international community, which condemn torture and other major human rights abuses on a universal basis.
If Wang Xiaoning, Shi Tao, and their families are successful, this lawsuit will contribute significantly to a growing trend which recognises that US corporations acting abroad are not just ethically, but are also legally, responsible for complying with existing US and international laws prohibiting acts of torture and other major human rights abuses.
