案例简介:雅虎[Yahoo!]诉讼案(中国)

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2007年4月,王小宁及其妻子俞陵依据《外国人侵权索赔法》、《酷刑受害人保护法》和加州法律(向加州美国联邦法院)对雅虎(Yahoo!)及其 中国子公司提起诉讼。2007年6月,记者师涛及一些不愿透露姓名的原告加入了诉讼。王小宁和师涛两人在中国分别因煽动颠覆国家政权罪和非法向境外提供国家机密罪被判有期徒刑十年。王小宁获罪是因为通过雅虎以电子邮件的形式散播其撰写的有关宣扬中国民主改革和多党民主制的文章。师涛则是因为通过自己的雅虎账户向网站论坛发送他对一份中国政府在“六四事件”十五周年前夕对媒体下达的限制报道通知的评论 。

原告方指责雅虎向中国执法部门透露了他们在互联网上的一举一动,导致他们遭到监禁。诉讼称雅虎将用户身份信息提供给中国当局,在明知会给原告的生理、心理带来严重的痛苦和折磨的情况下,协助并帮助中国当局实施加害行为及其他侵犯人权的行为。原告方在二次修订状中称:王小宁和师涛“因行使他们的言论、集会、结社等自由权利,被中国政府官员打着中国法律的旗号,借(雅虎)之手对其实施并且正在实施迫害行为。这些行为严重违反了禁止使用酷刑……禁止采用强制劳动手段等国际社会公认的国际法标准。”

2007年8月27日,雅虎以该案涉及“国家行为”和政治问题,做出判决将有违国际礼让原则, 因此“不具备可司法性”(即案件涉及不适合在美国法庭裁决的问题)为由向法院提出申请,请求驳回原告方的起诉(这三点的详细信息请参见这里)。 2007年10月31日,法庭部分同意了原告方的请求,对案件的初步事实和司法管辖权进行调查后再决定是否同意雅虎提出的驳回起诉的申请。2007年11 月13日,雅虎CEO在国会听证会上举证之后,原被告双方同意私下达成和解, 并且共同向法院申请撤诉。雅虎同意承担原告方的诉讼费用,并且设立基金,“为那些因在互联网上表达观点而坐牢的异见人士提供人道主义援助和法律援助。”和解协议的具体条款保密。

2008年2月下旬,一些中国异见人士向美国加利福尼亚州联邦法院提起对雅虎的新诉讼,案由与2007年11月达成和解的诉讼类似。

2012年2月1日,雅虎的一名股东和中国的一名维权人士在特拉华州衡平法院对雅虎提起诉讼,寻求雅虎公司人权基金设立和运作的证据。该基金是应依照上文提到的2007年11月达成的诉讼和解协议设立的。原告方称雅虎选派的基金管理人将基金资产挪作私用。

- "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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以下是所有相关材料

法律诉讼
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18 February 2014

Yahoo! lawsuit (re China)

作者: Business & Human Rights Resource Centre

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)

文章
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作者: AAP (Australian Associated Press)

Shi Tao...was released on August 23 after serving nearly nine years of a 10-year sentence for "providing state secrets to overseas organisations"… "Shi Tao's arrest and imprisonment, because of the actions of Yahoo China, signalled a decade ago the challenges to freedom of expression of internet surveillance and privacy that we are now dealing with," [the head of PEN International's Writers in Prison Committee] said…Yahoo later apologised for handing over Shi's emails to Chinese authorities. In 2007, it settled a lawsuit brought on behalf of Shi and another Chinese journalist who was convicted partly through information provided by Yahoo.

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作者: Ian Brown & Douwe Korff, Global Network Initiative

While states are responsible for protecting human rights online under international law, companies responsible for Internet infrastructure, products and services can play an important supporting role. Companies also have a legal and corporate social responsibility to support legitimate law enforcement agency actions to reduce online criminal activity such as fraud child exploitation and terrorism. They sometimes face ethical and moral dilemmas when such actions may facilitate violations of human rights. In this report we suggest practical measures that governments, corporations and other stakeholders can take to protect freedom of expression, privacy, and related rights in globally networked digital technologies. [refers to Amesys (part of Bull), Blue Coat, Vodafone, Google, YouTube [part of Google], Cisco, McAfee [part of Intel], Websense, Verizon, Sandvine, Yahoo!, Facebook, Microsoft, Twitter, Nokia Siemens Networks (NSN) (joint venture Nokia and Siemens), Syrian Telecommunications Establishment, Huawei, ZTE. Concerns are raised re ZTE's provision of surveillance equipment to Iranian Govt. For ZTE's response, see http://www.business-humanrights.org/Links/Repository/1012025]

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作者: Andrew Jacobs & Penn Bullock, New York Times

As the Chinese government forges ahead on...[an] effort to blanket the country with surveillance cameras, one American company stands to profit: Bain Capital,…founded by Mitt Romney. In December, a Bain-run fund...purchased [Uniview Technologies,] the video surveillance division of a Chinese company that claims to be the largest supplier to the government’s Safe Cities program, a highly advanced monitoring system...Previous projects have included an emergency command center in Tibet...Such surveillance systems are often used to combat crime and the manufacturer has no control over whether they are used for other purposes. But human rights advocates say in China they are also used to intimidate and monitor political and religious dissidents...Representative Frank R. Wolf, Republican of Virginia, [said]...“These companies are busy making a profit and don’t want to face realities, but what they’re doing is wrong..." ...Bain defended its purchase of Uniview, stressing that the Chinese company’s products were advertised as instruments for crime control, not political repression. [also refers to Honeywell, General Electric, IBM, United Technologies, Yahoo!, Cisco Systems, H3C (part of HP, previously joint venture of 3Com & Huawei), National Foreign Trade Council (USA)]

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21 February 2012

Corporate Accountability Now

作者: Corporate Accountability Now is a joint project of EarthRights International, the Center for Constitutional Rights, and the Human Rights Litigation and International Legal Advocacy Clinic at the University of Minnesota Law School

On February 28, 2012, the Supreme Court will hear two cases that will determine whether corporations can be sued for their complicity in torture, crimes against humanity, and other human rights abuses [Kiobel v. Royal Dutch Petroleum, and Mohamad v. Palestinian Authority]. These cases have profound implications for the future of corporate accountability in the United States. [Site has profiles of the following additional lawsuits: Holocaust settlements; Doe v. Unocal; Wang Xiaoyang v. Yahoo!; Blackwater cases; Apartheid cases; Almog v. Arab Bank; Chiquita cases; Sarei v. Rio Tinto; Abu Ghraib cases; Doe v. Cisco; Doe v. Exxon Mobil; Adhikari v. Daoud & Partners]

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作者: Xenia Kobylarz, Milberg LLP, in BusinessWire

Milberg LLP and human rights activist Morton Sklar filed a lawsuit demanding that Yahoo!...provide records regarding its establishment and operation of the Yahoo! Human Rights Fund (the “Fund”)...The Fund was established to settle the claims of Chinese dissidents whose internet user identifications were improperly disclosed by Yahoo! to China’s government. Jing Zhao, a Chinese activist and Yahoo! shareholder...demand...that Yahoo! produce for inspection documents concerning Yahoo!’s potential mismanagement and breaches of fiduciary duties in connection with the Fund...Yahoo! agreed to establish the Fund to provide humanitarian and legal support to political dissidents who have been imprisoned for expressing their views online, as well as assistance for their families...The complaint seeks production of documents that will allow shareholders to take appropriate action in the event the members of Yahoo!’s Board of Directors did not properly discharge their fiduciary duties.

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作者: Economist

In May and June human-rights lawyers in America filed two suits [under the Alien Tort Claims Act] alleging that executives at Cisco Systems…sold China’s government equipment customised to help track dissenters online…Cisco denies all wrongdoing…American tech firms covet China’s huge market…Microsoft confirmed that its Bing search engine will soon be powering English-language results for local users of Baidu, China’s censored search giant… Campaigners in New York have started a suit against Baidu, saying its censored search results violate their constitutional rights…[However] suits against Cisco or other high-tech players face an uncertain legal path…Some American politicians think clearer legislation would help. One long-mooted bill, the Global Online Freedom Act, would make the government keep a list of internet-restricting states… [also mentions Facebook, Google, Yahoo]

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1 February 2011

Better Safe than Sorry

作者: Susan Aaronson, Professor & Ian Higham, Research Assistant - Elliott School of Intl. Affairs, George Washington Univ in Policy Innovations

...Building on years of research and multi-stakeholder dialogue, [UN Special Representative on business & human rights John] Ruggie outlined a framework and Guiding Principles to help firms “operationalize” their human rights responsibilities...While some business associations have expressed generic support for Ruggie’s efforts, most firms have said little. BASF, Talisman, and Novo Nordisk are among the few firms that commented on...the Guiding Principles...The Guiding Principles are not perfect, but they will help firms operationalize, monitor, and audit their human rights performance. Therefore, they represent a strategy that firms should test. Most firms have done very little to ensure that they do not undermine the human rights... [also refers to SNCF, Aetna, JPMorgan Chase, Wachovia (now part of Wells Fargo), Nestle, Mars, Whirlpool, Toyota, General Motors, Cisco Systems, Wal-Mart, Freeport-McMoRan, Yahoo!, Unocal (now Chevron), Barclays, BP, Control Risks, Credit Suisse, ExxonMobil, Gap, Hewlett-Packard, Imperial Tobacco, Shell, Cerrejón Coal (joint venture Anglo American, BHP Billiton, Xstrata), Phillips Van Heusen ]

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作者: J.P Bohoslavsky & V. Opgenhaffen, in Harvard Human Rights Journal

This paper examines the main legal aspects of corporate civil responsibility for facilitating serious violations of human rights, focusing specifically on bank activity. It analyzes, in detail, the Argentinean case and the financial support received by the last military dictatorship...[It inspects] a missing element along this spectrum of Argentina’s long search for accountability and justice: the role of foreign financial institutions and the potential to claim that they were complicit in supporting a regime well-known to have been committing mass human rights violations...Finally, the authors suggest that the assistance provided by private financial institutions played a significant enough role...to warrant a closer examination and possible future legal action on the basis of complicity in crimes against humanity...[also refers to Barclays, Chiquita, Isuzu, Nestlé, UBS, Yahoo!, Unocal (part of Chevron)]

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作者: [opinion] John B. Bellinger III, former US State Dept. legal advisor, New York Times

For more than a decade, dozens of multinational corporations have been sued in federal courts in the United States for alleged human rights violations under the...Alien Tort Statute. Now these suits may be over. In August...[the New York-based Second Circuit Court of Appeals] ruled that corporations may not be held liable for violations of international law...If the Supreme Court upholds the decision, it will remove an effective weapon for human rights groups to force changes in the behavior of multinational corporations...[and] the impact of their activities on local populations and the environment...Even...[without] the threat of lawsuits under the Alien Tort Statute, [corporations] should ensure that their international operations...comport with accepted human rights principles. [refers to Shell, ExxonMobil, Chevron, Talisman Energy, Rio Tinto, Coca Cola, Pfizer, Caterpillar, Yahoo]

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