Yahoo! lawsuit (re China)

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案例简介:雅虎[Yahoo!]诉讼案(中国)(中文版)

C русской версией описания этого дела можно ознакомиться здесь.

 

In April 2007 Wang Xiaoning and Wang’s wife, Yu Ling, filed a lawsuit (in US federal court in California) against Yahoo! and its Chinese subsidiariesunder the Alien Tort Claims Act, Torture Victim Protection Act and California state law.  In June 2007 journalist Shi Tao and a number of unnamed plaintiffs joined the lawsuit.  Wang and Shi had each been sentenced to 10 years’ imprisonment in China on respective charges of incitement to subvert state power and of illegally providing state secrets to foreign entities.  Wang was found guilty on the basis of essays advocating democratic reform and multi-party democracy in China that he distributed via email and through Yahoo!  Shi was convicted on the basis of an email he sent from his Yahoo! account to an internet forum which contained his comments on a Chinese Government circular prepared in advance of the 15th anniversary of the Tiananmen Square uprising outlining restrictions on the media.  

 

The plaintiffs accused Yahoo! of giving information about their online activities to Chinese law enforcement, which led to their detention.  The lawsuit alleges that by providing user identification information to the Chinese authorities, Yahoo! knowingly and willfully aided and abetted the commission of torture and other human rights abuses that caused the plaintiffs severe physical and mental pain and suffering.  The plaintiffs’ Second Amended Complaint alleged that Wang and Shi “have been and are being subjected to grave violations of some of the most universally recognized standards of international law, including prohibitions against torture…and forced labor, for exercising their rights of freedom of speech, association, and assembly, at the hands of [Yahoo!] through Chinese officials acting under color of law in the People’s Republic of China.” 

 

On 27 August 2007, Yahoo! moved to dismiss the complaint arguing that the case presents “nonjusticiable” questions (questions not appropriate for resolution by a US court) because the case involves “acts of state” and political questions, and because ruling on them would breach standards of international comity.  (More information on these three doctrines is available here.)  On 31 October 2007, the court granted in part plaintiffs’ motion for initial and jurisdictional discovery, delaying its decision on Yahoo!’s motion to dismiss until this discovery had been conducted.  On 13 November 2007, following the testimony of Yahoo!’s CEO before Congress, the parties agreed to a private settlement and issued a joint stipulation of dismissal in which Yahoo! agreed to bear the plaintiffs’ legal costs and establish a fund "to provide humanitarian and legal aid to dissidents who have been imprisoned for expressing their views online."  The exact terms of the settlement are confidential. 

In late February 2008 a new lawsuit was filed against Yahoo! by Chinese dissidents in US federal court in California based on allegations similar to those in the lawsuit which was settled in November 2007.

On 1 February 2012 a Yahoo! shareholder and a Chinese activist filed a lawsuit in Delaware Chancery Court against Yahoo! seeking evidence from the company regarding the establishment and operation of the Yahoo! Human Rights Fund.  This Fund was to be established pursuant to the November 2007 settlement of the lawsuit described above.  The plaintiffs allege that the individual selected by Yahoo! to administer the Fund misappropriated Fund assets for his personal use.

- "Milberg LLP and Human Rights Activist File Suit Against Yahoo! Questioning Operation of the Yahoo! Human Rights Fund", Xenia Kobylarz, Milberg LLP, 6 Feb 2012
- "Yahoo sued again by Chinese dissidents", Dan Nystedt, Computerworld, 29 Feb 2008
- “Yahoo Settles With Chinese Families”, Catherine Rampell, Washington Post, 14 Nov 2007

- [FR] “Reporters sans frontiers soulagee par l’accord entre Yahoo! et les familles de Shi Tao et Wang Xiaoning”Reporters sans Frontières, 14 nov 2007

- “Yahoo apologizes for action on Chinese dissident journalist” AFX News, 4 Nov 2007

- “Yahoo plea over China rights case”, BBC News, 28 Aug 2007

- “Jailed Chinese Reporter Joins Yahoo Suit”, Dikky Sinn, Washington Post, 11 Jun 2007

- “Chinese Political Prisoner Sues in U.S. Court, Saying Yahoo Helped Identify Dissidents”, Miguel Helft, New York Times, 19 Apr 2007

 

- World Organization for Human Rights (plaintiffs’ counsel): Corporate Accountability (includes links to legal documents filed in US case)

- Human Rights in China: Case Highlight – Shi Tao and Yahoo

- Human Rights in China: Yahoo! Cited in Decision Sentencing Internet Dissident Wang Xiaoning to 10 Years, 27 Apr 2006

- [PDF] Xiaoning v. Yahoo - Second Amended Complaint, 30 Jul 2007

- Xiaoning v. Yahoo! Inc, et al. – Defendant Yahoo! Inc.’s Motion to Dismiss Plaintiffs’ Second Amended Complaint, 27 Aug 2007

- Justia: Xiaoning et al v. Yahoo! Inc, et al [index, with links, of all legal filings in case]

- [PDF] Chinese Judgment Against Shi Tao, 27 Apr 2005 (Chinese language only)

- [PDF] Chinese Judgment Against Wang Xiaoning, 12 Sep 2003 (Chinese language only)

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Article
1 June 2010

[PDF] Think globally, sue locally: Out-of-court tactics employed by plaintiffs, their lawyers, and their advocates in transnational tort cases

Author: Jonathan Drimmer, Steptoe & Johnson, released by U.S. Chamber of Commerce Institute for Legal Reform

Over the past 15 years, there has been a sharp rise in lawsuits brought against United States companies, as well as foreign companies with a substantial U.S. presence, that are premised on alleged personal or environmental injuries that occur overseas...With increasing frequency, plaintiffs, their attorneys, and their advocates are employing aggressive out-of court tactics that approach, straddle, and sometimes cross ethical lines in seeking to gain litigation advantages....The tactics...have clearly demonstrable patterns. Among them are: Aggressive media tactics...Community organizing tactics...Investment tactics...Political tactics...Fraudulent misconduct...[refers to AirScan, Archer Daniels Midland, Bridgestone, Bridgestone-Firestone (part of Bridgestone), Brylane (part of Pinault Printemps-Redoute), Cargill, Chevron, Chiquita, Coca-Cola, Daimler, Del Monte Foods, Dole, Dow Chemical, Drummond, ExxonMobil, Gap, Gulf Oil, Levi Strauss, Mercedes-Benz (part of Daimler), Mobil Oil (part of ExxonMobil), Nestlé, Occidental Petroleum, Petroecuador, Pfizer, PPR (formerly Pinault-Printemps-Redoute), Rio Tinto, Shell, Target, Texaco (part of Chevron), Union Carbide (part of Dow), Unocal (part of Chevron), Wal-Mart, Yahoo!]

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Article
22 April 2010

Google's push for online liberty [China]

Author: Salil Tripathi, Guardian [UK]

..Google's approach to the internet, freedom and privacy came into sharp focus when it decided to operate in China…Early this year, the company announced…it decided to stop censoring searches in China…By doing it…Google is trying to ensure it cannot be accused of inconsistency – grandstanding with China while acquiescing with others. Its bold move should also compel other companies to become more transparent. And it should force governments to rethink their approach to the internet and personal freedoms…Companies such as Google are caught between their claim that they want to uphold the Universal Declaration on one hand and the demands governments make to take down certain content, or provide information about specific users…[also refers to Yahoo]

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Article
1 December 2009

[PDF] Principles and Mechanisms to Hold Business Accountable for Human Rights Abuses: Potential Avenues to Challenge Corporate Involvement in Israel's Oppression of the Palestinian People

Author: Yasmine Gado, BADIL Resource Center

One of the most important legal challenges today is the battle to hold transnational corporations (TNCs) accountable for their involvement in human rights violations. Efforts are currently being made by a variety of actors in what is referred to as the corporate social responsibility (CSR) movement…While the resources of these companies are vast and they are largely immune to democratic processes, gains are being made as corporate management responds to the cumulative impact of these efforts…This article summarizes the latest developments in each of these areas. The discussion on domestic law will cover U.S. law; however, several recent surveys compare the laws of different domestic legal systems in the area of corporate accountability for human rights violations. [refers to Ahava, Alstom, Caterpillar, Chevron, Connex (part of Veolia), Dexia, Drummond, Elbit Systems, Fidelty Investments, General Motors, Lev Leviev, Motorola, Shell, Talisman, Unocal (part of Chevron), Veolia, Yahoo!]

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Article
2 November 2009

Professor Stresses Role of Lawyers in 'Civilising Globalisation'

Author: John Bringardner, Law.com

I think for corporations, the issue of human rights has been in the forefront for some time, particularly for those with big names...For the lawyers who advise them, the matter has not been as front and central...In many ways it's ironic that the focus is on...bigger companies. Yes, they do bad as well as good, but the real problem for the corporate world, and ultimately for lawyers, will be how you deal with those who don't have reputations, that aren't big enough --often the subcontractors and the sub-subcontractors of the big firms themselves. [refers to Shell, Drummond, Cisco, Yahoo!, Google, Microsoft]

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Article
11 June 2009

A Win for Wiwa, a Win for Shell, a Win for Corporate Human Rights

Author: Michael Goldhaber, American Lawyer

Late Monday, on the eve of trial in New York, the parties settled in Wiwa v. Shell. For those with longer memories, it was reminiscent of March 2005, when another case hyped as the great breakthrough for corporate human rights, Doe v. Unocal, settled before trial on the merits…Absent a cathartic trial, can a winner be declared?...While the facts in dispute will never be settled, Wiwa has left its mark on law and legal culture -- and in this respect the movement for business human rights is the big winner. [also refers to Chevron, Curacao Drydock, Esmor Correctional Services, Drummond, Gap, Yahoo!]

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Article
27 May 2009

The U.S. Can't Be the World's Court - New York isn't the right venue to sue for apartheid abuses.

Author: [opinion] John R. Bellinger III, partner at Arnold & Porter law firm; former Legal Adviser, US State Department, in Wall Street Journal

A federal judge in New York recently allowed a lawsuit to proceed against General Motors, Ford and IBM for aiding and abetting crimes against humanity committed by the apartheid government in South Africa. And a lawsuit against Royal Dutch Shell for alleged human-rights abuses in Nigeria is scheduled to begin today in Manhattan. We may be on the verge of a new wave of legal actions against U.S. and foreign corporations in American courts... these lawsuits, which are being brought under the 200-year-old Alien Tort Statute, are likely to cause friction between foreign governments and the Obama administration. Congress should step in and clarify the types of human-rights cases that may be heard... Litigation under the Alien Tort Statute may force companies to modify their international activities in some cases, although it rarely produces monetary awards for plaintiffs. But it does give rise to diplomatic friction in U.S. relations with foreign governments... Human-rights and labor groups are likely to press the Obama administration to support litigation under the Alien Tort Statute and even to reverse the Bush administration's opposition to the apartheid case. [also refers to lawsuits against Caterpillar, Dow Chemical, Yahoo, ExxonMobil, Unocal (now part of Chevron), Talisman Energy, Rio Tinto]

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Article
25 May 2009

Old law exhumed by fighters for human rights [USA]

Author: Michael Peel, Financial Times

...On Tuesday, a court in New York will start hearing a lawsuit alleging Shell was complicit in Ken Saro-Wiwa’s death and a campaign of terror by Nigerian security forces. The claim – which the company says is false and is defending – is one of a series of similar cases launched against big businesses from round the world...The potential of these lawsuits to generate huge damages and disastrous publicity now hovers, according to one lawyer whose firm defends big companies, “very close to the consciousness of corporate America acting overseas”…These US actions are part of a wider international move to hold companies to account in rich countries over allegedly harmful activities in the poor world. In the absence of a bespoke world civil court to deal with such claims, lawyers are coming up with innovative ways of using existing national laws and procedures…The steadily widening stream of international litigation has opened up largely because of the US Alien Tort Claims Act of 1789…While some corporate lawyers argue the act is being used in cases for which it was never originally intended, the statute’s supporters say it is probably being applied in the same spirit now as it was when it was created. [also refers to Chevron, Trafigura, Unocal, Yahoo!]

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Article
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Author: Reporters sans frontières

Reporters sans frontières, a félicité Carol Bartz pour sa nomination à la tête de l’entreprise Yahoo !, le 13 janvier 2009. Jean-François Julliard, le secrétaire général de Reporters sans frontières, a saisi cette opportunité pour lui faire part de ses préoccupations concernant la politique en Chine de la société... “Nous vous demandons de poursuivre une politique de rupture de la divulgation des données personnelles d’utilisateurs aux autorités des pays qui censurent Internet... [N]ous vous suggérons de renégocier votre partenariat avec Alibaba, en y incluant une condition non négociable, l’enjoignant de résister aux demandes abusives des autorités chinoises...”, écrit Jean-François Julliard...

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Article
14 January 2009

Yahoo!’s new CEO urged to make defending freedom of expression on the Internet one of the company’s priorities

Author: Reporters Without Borders

Reporters Without Borders congratulates Carol Bartz for her appointment yesterday as Yahoo!’s new CEO... The organisation’s secretary-general, Jean-François Julliard, seized the opportunity to write to Bartz to express its concerns about Yahoo!’s policies in China... In the letter, Reporters Without Borders [writes]...: "We...request you to pursue a policy opposed to the disclosure of users’ personal data to the authorities of countries that abusively censor the Internet... We...urge you to renegotiate your local partnership with Alibaba, including a non-negotiable condition requiring it to resist abusive requests from the China authorities..."

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Article
12 December 2008

Can the Global Network Initiative Advance Freedom of Expression and Privacy Rights in Countries that Censor the Internet? Why It Is a Promising Start, But Still Leaves a Large Hole to Be Filled

Author: Anita Ramasastry, FindLaw

…[A]n issue of growing concern [is that] although Internet connectivity has allowed many people to have access to more information and knowledge, some governments have responded to the free flow of information by censoring or blocking content, or by trying to penalize bloggers and journalists who have criticized their governments online. In this column, I'll discuss the Global Network Initiative (GNI), a partial solution to the plight of these individuals. In particular, I will provide an overview of the GNI and explain that, while it is a promising start, it still leaves some large and unanswered questions – which may be resolved as the GNI begins its work, but will ultimately need to be dealt with to ensure its success. [refers to Alibaba.com, Google, Microsoft, Yahoo!]

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