US writers sue Baidu over Internet blockJoel Reidenberg in Asia Times, May 26, 2011
by 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.