Yahoo may face liability in dissident lawsuit, experts say

For the second time, plaintiffs use Alien Tort Claims Act to accuse Internet company

Yahoo Inc. and at least one of its subsidiaries could be held liable for actions that resulted in the jailing and torture of at least one Chinese dissident, according to experts.

Yahoo and its subsidiary have been sued by three Chinese dissidents who allege that the company helped Chinese authorities by handing over e-mails and other electronic communications that ended up landing one dissident in jail.

Yahoo operated its China subsidiary until it became part of in return for a 40% stake in the Chinese e-commerce company in late 2005. Alibaba now runs Yahoo's China operations.

The case was filed by plaintiffs Li Zhi, Zheng Cunzhu and Guo Quan and other unnamed individuals last week in U.S. District Court for the Northern District of California. The lawsuit alleges that Yahoo "willingly provided Chinese officials with access to private e-mail records and other identifying information about the plaintiffs," which led to the 2003 arrest of Li Zhi.

The information was used as "the basis for the acts of persecution and torture that occurred and are occurring," according to the court documents.

The group has filed suit under the Alien Tort Claims Act of 1789. Last year, Yahoo faced a similar lawsuit by Chinese journalists Wang Xiaoning and Shi Tao, who were jailed after they said Yahoo gave Chinese authorities their e-mail records. Yahoo settled out of court for an undisclosed amount. That case also cited the Alien Tort Claims Act.

"As a general policy, we do not comment on pending litigation," Yahoo spokeswoman Tracy Schmaler said. "Yahoo condemns unfair government restrictions on free expression and privacy. We are a company founded on the principle that the free exchange of information can fundamentally change how people lead their lives, communicate and learn about the world around them," Schmaler said.

"We are committed to making sure our actions match our values around the world which is why we've established a Human Rights Fund with noted human rights advocate Harry Wu to provide humanitarian and legal aid to dissidents who have been imprisoned for expressing their views online."

In part, the act provides for making U.S. corporations responsible in court for human rights abuses committed as a result of their presence in a foreign country, said Bridget Arimond, clinical assistant professor of law and director of the Program for International Human Rights at Northwestern University in Evanston, Ill. It doesn't matter whether those abuses were committed by the U.S. company or by a local group that was abetted by the U.S. corporation, Arimond said.

"Non-U.S. nationals, aliens, can bring claims under the Alien Claims Tort Act for violations of certain norms of international human rights law, including torture," Arimond said. "So you can bring a claim against the perpetrators of the crime and also &mash; although this is currently being litigated in the courts — virtually all courts have found that you can bring claims against those who aid and abet the actual torture. In this case, [the plaintiffs] are saying Yahoo is liable for cooperating with the Chinese authorities who actually conducted the torture."

Arimond said any corporation sued under the act should look carefully at its own conduct, and if there are grounds for believing there is liability, settlement is both the prudent and the right thing to do.

Robert Goldman, a professor at the American University Washington College of Law in Washington, and co-director of the college's Center for Human Rights and Humanitarian Law, said torture would meet the statutes under the act.

"If torture is what the [plaintiffs] are claiming, torture is clearly going to survive under the statute," he said. "It is one of the few things in customary international law of human rights that is recognized to be absolutely prohibited."

Goldman noted that the previous case brought by Chinese dissidents was an embarrassment for Yahoo. "Rather than litigate these cases, corporations have settled, and you can imagine ventilating this in court," he said. "Yahoo was not the torturer here, but the plaintiffs seem to be saying if Yahoo hadn't done this they wouldn't be in this position, therefore Yahoo bears some derivative responsibility. Let's face it, this is bad publicity for Yahoo. It's better for them to settle."

Morton Sklar, executive director of the World Organization for Human Rights USA, which filed the first lawsuit against Yahoo on behalf of Wang and Shi, said the current case is similar.

"We were aware that many other Internet users in China were subjected to human rights abuses as a direct result of Yahoo's disclosure of their Internet-identifying information to the government of China, and assume that this new case concerns them," Sklar said. "Yahoo had promised to provide the House Foreign Affairs Committee at the hearing on Nov. 6 with information on these additional people detained as a result of their disclosures. But they have not yet provided this information. Hopefully, this new lawsuit will help to identify many others who were imprisoned as a result of Yahoo's disclosures."

Tala Dowlatshahi, spokeswoman for Reporters Without Borders, said that when Yahoo settled last year with Shi's family, the company was recognizing its participation in indirectly contributing to the jailing of a journalist by providing information to Chinese police about his e-mail.

"With that step, Yahoo is saying to other Chinese dissidents and bloggers that may have also been harassed jailed or threatened by the Chinese government that the door is open for other investigations that may link Yahoo to once again indirectly contributing to clamping down on the journalists' rights and prohibiting a journalist from speaking independently," Dowlatshahi said.

Dowlatshahi said U.S.-based companies that are created under a "corporate template of democracy" like Yahoo are bending their rules when working in other countries.

"And that simply isn't acceptable to our organization or to international human rights organizations at the global level," she said. "What we're calling for is the implementation of a code of conduct that we're currently working on with the shareholders of these companies to apply a universal standard toward Internet accessibility and information exchange so that there is a principled order and not a bending of the rules."

She said her organization is hoping that these cases create more awareness of the issue worldwide. "What the Yahoo settlement did last year is that it showed that these companies are willing to accept that they may have indirectly contributed to the jailing of Shi Tao and perhaps others," she said.

Copyright © 2008 IDG Communications, Inc.

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