Fordham Law


Analysis: Uphill fight for Baidu, China censorship lawsuit

Joel Reidenberg in Reuters, May 19, 2011

Media Source

By Jonathan Stempel

NEW YORK (Reuters) - Pro-democracy activists will face an uphill fight to convince a U.S. court that Baidu Inc and China censored them over the Internet and should be punished.

Eight New York residents accused Baidu and China's ruling Communist Party of conspiring to suppress their political speech, in violation of the First Amendment to the U.S. Constitution and various civil and human rights laws.

But China said Wednesday's lawsuit should fail because a U.S. court cannot tell a sovereign country what to do.

Legal experts call that defense strong, and also consider Baidu unlikely to be held responsible for any censorship.

While the First Amendment confers certain rights against U.S. 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. "In cyberspace, the First Amendment is a local ordinance."

Stephen Preziosi, a lawyer for the plaintiffs, on Wednesday said collusion by Baidu and China "permeate U.S. borders" and violates the First Amendment. An Internet search engine is a "public accommodation" that cannot discriminate, he said.

The lawsuit was brought by writers and video producers who say their works promote democracy movements in China.

They say their content can be found easily through search engines such as Google, Yahoo and Microsoft's Bing, and Google's video-sharing service YouTube.

Preziosi estimated $2 million of damages per plaintiff, for a total of $16 million, and said these sums could grow because "the number of violations could grow as my clients keep writing, and the incidents of suppression keep increasing."

"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."

LARGE STRETCH

The lawsuit was filed in federal court in Manhattan, one year after Google pulled its search engine out of China after hitting censorship issues. China also blocks social networking sites Facebook, Flickr and Twitter, as well as YouTube.

"The way the Chinese government manages the Internet in accordance with the law accords with international norms and is a sovereign matter," China Foreign Ministry spokeswoman Jiang Yu said at a news briefing on Thursday. "Foreign courts have no jurisdiction."

Baidu spokesman Kaiser Kuo declined to comment.

"It appears to me to be an attempt to fit a moral claim about Internet censorship into the legal framework of a civil rights claim, but I don't think it's a very good fit," said Bruce Boyden, a law professor at Marquette University.

"And although you might have a First Amendment right to prevent the U.S. government from telling Google what to do with your speech, you do not have the same right against China," he added. Marquette is located in Milwaukee.

Legal experts said it would also be hard to show China or Baidu subjected itself to the New York court's jurisdiction.

"It's a large stretch," and the complaint gives no basis for a court to enforce any rulings against these defendants, said Susan Crawford, a professor at the Benjamin N. Cardozo School of Law at Yeshiva University in New York.

"On the other hand, the plaintiffs could allege there is some specific universal norm of international law that protects freedom of speech online," he added. "More and more people have argued that access to the Internet is a human right protected by the U.N.'s Universal Declaration of Human Rights."

FILTERING CONTENT

Joel Kurtzberg, a partner at Cahill Gordon & Reindel in New York, said the Communications Decency Act provides immunity in certain circumstances for search engine providers that filter content, even if the content is constitutionally protected.

Still, the First Amendment specialist said it is unclear there is a right to have content to show up in search results, or that a website is a "place of public accommodation."

That issue was key in mid-1960s civil rights laws intended in part to address racial discrimination, at physical establishments such as hotels, restaurants and movie theaters.

"The Internet is not that," Reidenberg said.

Even arguing that bias might be state-sponsored might not be enough to convince a court to step in.

"Governing censorship of the Internet is a deep and complex problem and China remains a primary case study," Zittrain said. "The Internet is leaky, and there are ways to put material out that can be found, at least by people looking for it, despite censorship. But if you want to reach everybody, it's tough."

Legal experts said that in the end, it is the role of the executive branch to deal directly with China, and of Congress to write laws governing Internet access.

"Secretary of State (Hillary) Clinton has made clear the U.S. supports Internet freedom around the world," Crawford said. "But that's a matter for the State Department, and not the New York federal district court."

(Additional reporting by Clare Baldwin and Alina Selyukh, Melanie Lee in Shanghai, and Ben Blanchard in Beijing; Editing by Steve Orlofsky)