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In a number of cases, a Chinese subsidiary of Internet giant Yahoo provided Chinese authorities with information that helped them capture dissidents who had publicized information critical of Chinese policy.
These actions provoked a public uproar and, in April, a US lawsuit to boot. The suit, on behalf of Wang Xiaoning, his wife Yu Ling and journalist Shi Tao, was filed under the Alien Tort Statute, an 18th century law that gives US court jurisdiction over crimes committed abroad when they violate "the law of nations" - what is known today as international law. Yahoo defended its subsidiary, claiming that it was only obeying the law.
Of course, this begs the question of whether the law is a legitimate one that should be obeyed. To this, Yahoo replied this week in its request to dismiss the case: "Free speech rights as we understand them in the US are not the law in China. Every sovereign nation has a right to regulate speech within its borders."
This case involves a central challenge in business ethics: evaluating the limits of ethical relativity. To what extent can we apply different ethical standards in different places? Some commentators (generally those associated with labor unions) feel that developed-country standards of worker protection (minimum wage, maximum hours, safe working conditions etc.) and environmental protection should apply even in developing countries. I oppose this approach. When work outside of factories provides bare subsistence (if that), then work in factories is attractive and beneficial even under conditions that would be considered horrific in developed countries. Applying expensive and inappropriate standards means that fewer factories will be built and fewer people will enjoy the benefits of the higher-wage industrial jobs.
But there is a limit to relativity. It's proper to tolerate worse working conditions in developing countries because better conditions cost money, which simply is not a good investment from the point of view of residents. A little more safety may be a good investment when weighed against a plasma screen (as is likely to be the trade-off in a rich country) but a bad investment when weighed against running water.
Freedom of speech, by contrast, doesn't cost money, and its value is not primarily in the private enjoyment of the speaker. In the Yahoo case, the tradeoff is not the worker's own health or safety weighed against his income; it is the well-being of the citizens weighed against the viability of a repressive regime. This viability generally will have little weight in ethical decision making; in ethics all men are created equal, and government officials are not more equal than others. The only exception would be where undermining the government could lead to anarchy. Then, we would remember the admonition of the sages of the mishnah that without awe of the sovereign, "people will eat each other alive."
This doesn't seem to be a valid consideration in China, which is a good candidate for the most stable government in human history. (There have been many dynasties over recent millennia, but in this time China has never been effectively ungoverned, as is the case today for example in Iraq or Gaza.) I think there is virtually no chance that criticism of Chinese policy, of the kind publicized by the dissidents involved, would lead to a collapse of effective government for China's myriads.
I don't challenge the basic statement that "Every sovereign nation has a right to regulate speech within its borders." Each nation has its own conventions of civil speech as well as its own changing security considerations. While I personally opposed the very strict "hate speech" laws in much of Europe, I don't consider them illegitimate, merely ill-considered. I just don't think the right extends to jailing people who criticize the government, and I don't think companies from democratic countries should comfortably reconcile themselves to complicity in the arrest and torture of political dissidents, loyal citizens of their country, for the crime of exposing the deficiencies of the ruling authorities.
Yahoo basically claims that its behavior was legitimate, but there is another possible justification for this kind of behavior: duress. It could have claimed that it is terrible and awful that information they provided led to the jailing of loyal Chinese citizens whose only crime was political dissidence, but it was forcibly compelled into this terrible and awful act.
Sadly, this alternative line of defense doesn't seem very compelling based on the evidence published so far in the press. Yahoo does not seem to be very upset about its actions; on the contrary, it seems to be acting as a spokesman for China's repressive regime. Among the reasons it opposes the lawsuit is that the case "might well be viewed as a profound rebuke" of the Chinese government. It does not seem to have occurred to them that a profound rebuke of the Chinese government might be in order in this situation.
Other reasons for casting doubt on a duress defense: Yahoo seems to have complied with the order extremely promptly, without any foot-dragging, whining or legal wrangling, which could have possibly delayed any disclosure, perhaps beyond the time when it could have effectively incriminated the dissidents. Another consideration is the involvement of the company's Hong Kong subsidiary, given that companies in Hong Kong have less exposure than mainland ones to repressive Chinese laws.
I am unqualified to comment on the merits of the lawsuit, and indeed I am skeptical about giving a California court jurisdiction on a lawsuit between a Chinese citizen and a Chinese company about a tort alleged to have taken place in China regarding materials posted on the Internet in Chinese. However, from a business ethics point of view, it is clear to me that providing information of this nature is not just a case of "When in Rome, do as the Romans do." The ethics violation in question is not one that can be defended as "culturally relative," and a defense based on duress seems to be belied by the company's prompt cooperation and its surprising pro-active defense of Chinese policy.
The author is research director at the Business Ethics Center of Jerusalem (www.besr.org), an independent institute in the Jerusalem College of Technology.
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