Academic journal article The George Washington International Law Review

Corporate Complicity in Internet Censorship in China: Who Cares for the Global Compact or the Global Online Freedom Act?

Academic journal article The George Washington International Law Review

Corporate Complicity in Internet Censorship in China: Who Cares for the Global Compact or the Global Online Freedom Act?

Article excerpt

INTRODUCTION

The involvement of corporations in human rights abuses is arguably as old as incorporation. Corporate involvement in abuses can be traced to as early as the activities of the British East India Company,1 a time when even the notion of human rights in its present form was unknown. In the twentieth century, the corporate complicity2 of IBM and other corporations in the Holocaust,3 Enron in India's Dabhol power project,4 Royal Dutch-Shell in Nigeria's Ogoni region,5 BHP Billiton in Papua New Guinea's Ok Tedi mine,6 and Unocal in Myanmar's Yadana gas project7 have attracted wide media attention, engagement by non-governmental organizations (NGOs), academic critique, and judicial scrutiny.8

The alleged involvement of several leading U.S. corporations - Yahoo!, Microsoft, Google and Cisco - in Internet censorship in China is the most recent chain in this long saga of corporate complicity.9 The Chinese Internet censorship controversy received passionate, multi-faceted responses from various stakeholders, including U.S. Congressional hearings10 and the introduction of the Global Online Freedom Act (Freedom Act),11 establishment of a Task Force by the U.S. State Department,12 a resolution from the European Parliament,13 release of comprehensive reports by Amnesty International and Human Rights Watch,14 pledges by investors for freedom of speech and expression,15 blog exchanges,16 and business school Internet forums.17

This Article seeks to add a new dimension to the existing debate on the controversial role of Yahoo!, Microsoft, Google, and Cisco in Internet censorship in China. The Article critically evaluates the efficacy of two regulatory initiatives - the United Nation's (UN) Global Compact18 and the Freedom Act - in dealing with the specific challenges posed by doing business with or within China. Consideration will be given to how much promise these two initiatives offer in ensuring that corporations take their human rights responsibilities seriously. Throughout the analysis, this Article will advance two specific claims. First, that the Global Compact has failed not only in convincing U.S. corporations to "embrace, support and enact" its ten principles, but also in ensuring that participant corporations seriously fulfill their undertaken commitments. Such a United States-specific inquiry is especially relevant because a significant number of corporations that have been sued for human rights abuses are from the United States.19 The second claim is that, although home-state extraterritorial regulation is a potential option to tame multinational corporations' (MNCs) human rights violations,20 it is unlikely that the Freedom Act will be enacted or, if enacted, achieve its goals - to promote Internet freedom globally by combating censorship by authoritarian foreign governments.

Part II highlights the gap that exists between the guarantees of freedom of speech and expression under the Chinese Constitution and its actual enjoyment outside the Constitution. This Part also captures the factual matrix that has raised allegations of corporate complicity by Yahoo!, Microsoft, Google, and Cisco in Internet censorship in China and analyzes the scope of corporate human rights responsibilities in situations of complicity. Part HI examines the nature, principles, and structure of the Global Compact and then examines, on the basis of available data, the (non) response and (non) seriousness shown by U.S. corporations towards the Global Compact.21 The failure of the Global Compact to take on board even a minimum number of U.S. corporations is a serious limitation for its success. Part IV investigates the scope of the Freedom Act and tests whether the Act could achieve its ambitious goals. The Article concludes with some suggestions on how to overcome the complex challenges posed by corporate complicity in human rights violations.

Apart from the Global Compact and the Freedom Act, the efficacy of several other corporate regulatory initiatives and their application to the current Internet censorship saga could be discussed. …

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