US
writers sue Baidu over Internet
block Sherman So
HONG
KONG - Baidu, China's leading online search
engine, is being sued by Chinese New Yorkers who
claim the company has had a hand in censoring
their work, in breach of the First Amendment to
the US constitution. Though legal opinion is that
Baidu cannot be held responsible, the case raises
questions on China's increasing online censorship.
In their May 18 lawsuit filed to a New
York court, eight Chinese residents of the city
claimed Baidu helps the government censor
political expression in violation of the US
constitution. The group of writers and video
producers say their work, which promotes democracy
movements in China, can be found easily through
search engines such as Google, Yahoo and
Microsoft's Bing, and
Google's video-sharing
service YouTube, but not through Baidu.
Stephen Preziosi, a lawyer for the group,
estimated US$2 million of damages per plaintiff,
for a total of $16 million, and said the sum could
rise because the number of violations could grow
as his clients keep writing, and the incidents of
suppression keep increasing.
The group
also filed a lawsuit against China's ruling
Communist Party, accusing it of conspiring to
suppress their political speech, in violation of
the First Amendment and various civil and
human-rights laws.
Chinese Foreign
Ministry spokeswoman Jiang Yu responded the next
day "The way the Chinese government manages the
Internet in accordance with the law accords with
international norms and is a sovereign matter,"
she said at a regular press briefing in Beijing.
"Foreign courts have no jurisdiction in China."
Legal professionals agreed with Jiang.
While the First Amendment, which protects freedom
of speech, confers rights against US government
censorship, it "does not protect against the
actions of a foreign government or a private
company, except in the rarest of instances", said
Jonathan Zittrain, a professor at Harvard Law
School, according to a report from Reuters. "In
cyber-space, the First Amendment is a local
ordinance," he added.
However, Preziosi
said conspiracy by Baidu and China "permeate US
borders" and violates the First Amendment. An
Internet search engine is a "public accommodation"
that cannot discriminate, he added.
His
view point is not shared by many. "I don't think
they have any chance of prevailing," said Joel
Reidenberg, a professor at Fordham University
School of Law in New York, "I don't think there is
an obligation on the part of a search engine to
provide particular results.”
Most legal
experts expected Baidu unlikely to be held
responsible for any censorship. The case, however,
once again puts the question of Internet
censorship in China before a global audience.
Google exited from the China market last year,
citing government censorship as one of the key
reasons.
"It is certainly weird for the
eight persons to file their case in the US,
because most of Baidu's users are in China, not
the US," said an industry insider in China. "I
guess they just want to raise public concerns
about censorship over the Internet in China."
China has over 457 million Internet users,
according to a survey by China Internet Network
Information Center in January. More than 34.3% of
the population are connected. The government has
also realized the immense power of the Internet
and therefore sees it as something to be
controlled.
Industry insiders say the
government is tightening its grip on the medium.
More and more Internet-related regulations are
being established and the circle of government
parties involved is widening. This month, Beijing
formed a new high-level agency, the State Internet
Information Office, to patrol cyber-space.
Kou Xiaowei, a deputy director of the
General Administration of Press and Publication, a
key government body in the regulation of online
games in China, did not think there had been any
fundamental change in the government's role in
Internet businesses in recent years.
"The
first Internet regulation was issued in 2000 by
the State Council. Since the industry was still in
its infancy, there was no way to make detailed
rules for different Internet businesses," said Kou
in interview with the author for a book.
"As Internet services develop and mature,
the government can implement more detailed rules
to regulate different Internet businesses. And
that is what happened: for example, the government
launched regulations for online news, for online
publications, and in 2008 came SARFT's new rules
on video-sharing sites," he added. SARFT is
China's broadcasting industry regulator.
Kou believes more regulations will come
out as the government figures out how to regulate
the industry in a more detailed manner. "The
Internet is like a double-edged sword. There is no
doubt its development will benefit society and the
people. But, without proper control, it can also
have a negative impact," Kou said.
Sherman So is a Hong Kong-based
correspondent and co-author of Red Wired:
China's Internet Revolution.
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