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The China Dilemma: Internet Censorship and Corporate Responsiblity

Published online by Cambridge University Press:  16 April 2015

Justine M. Nolan
Justine M. Nolan*
Affiliation:
University of NSW, Australia
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Abstract

The ever increasing nexus between human rights and business and the accompanying vagueness of concepts such as a company's ‘sphere of responsibility’ for human rights can, and has, created anxiety amongst companies. Considerations of human rights traditionally take place in the context of a state-based system of global governance; however, the rise of the corporation as a powerful non-state actor in recent decades has seen increased interest in understanding the emerging relationship between human rights and business and what, if any, responsibility business should assume for protecting human rights. This article considers the role played by U.S. technology companies such as Yahoo, Google and Microsoft in working with the Chinese government to censor internet content and thus intrude on the human rights to freedom of expression and opinion and the right to privacy. It concludes by focusing on the practicalities of protection and how human rights responsibilities might be apportioned between states and business and if so, how, when and why such an obligation might ensue.

Keywords

corporate responsibilityhuman rightsinternet censorshipsphere of influencesphere of responsibilityYahooGoogleMicrosoft
Type
Research Article
Information
Asian Journal of Comparative Law , Volume 4 , 2009 , pp. 1 - 28
Copyright
Copyright © Faculty of Law, National University of Singapore 2009

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References

1 As quoted from Tom Lantos, California Democrat and House Foreign Affairs Committee chairman, who spoke to the representatives of Yahoo! in November 2007, in Zachary Coile “Lawmakers blast Yahoo executives for helping China jail dissident” San Francisco Chronicle (7 November 2007), online: SFGate home of the San Francisco Chronicle <http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2007/11/07/MN2NT7C99.DTL> (accessed on 9 December 2008).

2 Hereafter Yahoo!, Google, Microsoft and Cisco.

3 Zeller, Tom Jr. “Web Firms Are Grilled on Dealings in China” New York Times (16 February 2006), online: The New York Times <http://www.nytimes.com/2006/02/16/technology/16online.html> (accessed on 9 December 2008)Google Scholar

4 Heskett, James “The China Dilemma for US firms: Comply, Resist or Leave?” Harvard Business School Working Knowledge (6 March 2006), online: Harvard Business School <http://hbswk.hbs.edu/item/5246.html#original> (accessed on 9 December 2008)+(accessed+on+9+December+2008)>Google Scholar.

5 See for example Ruggie, J, Interim Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, 22 February 2006 Google Scholar, UN Doc E/CN.4/2006/97 [Interim Report], especially paragraph 60. Contrast the United Nations Sub-Commission on the Promotion and Protection of Human Rights, Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, UN Doc E/CN.4/Sub.2/2003/12/Rev.2 (26 August 2003)Google Scholar [UN Norms], the preamble to which recites: “Realizing that transnational corporations and other business enterprises, their officers and persons working for them are also obligated to respect generally recognized responsibilities and norms contained in United Nations treaties and other international instruments”.

6 UN GAOR, 3d Sess., GA Res 217 A (III), UN Doc A/810 (1948) (adopted 10 December 1948).

7 See discussion below at Part III.

8 Supra note 5, see paras 9-19 of the Interim Report.’

9 See generally Nolan, J, “With Power comes Responsibility: Human Rights and Corporate Accountability” (2005) 28(3) UNSWLJ 581 Google Scholar; Kinley, D, Nolan, J & Zerial, N, “The Politics of Corporate Social Responsibility: Reflections on the United Nations Human Rights Norms for Corporations” (2007) 25 Company and Securities Law Journal 30 [Kinley, D, Nolan, J & Zerial, N]Google Scholar.

10 Supra note 4.

11 Amnesty International, Undermining Freedom of Expression in China; The role of Yahoo!, Microsoft and Google (United Kingdom: Amnesty International, 2006) at 4, online: <http://irrepressible.info/static/pdf/FOE-in-china-2006-lores.pdf> (accessed on 9 December 2008) [Undermining FOE in China]+(accessed+on+9+December+2008)+[Undermining+FOE+in+China]>Google Scholar.

12 Ibid. Also see Human Rights Watch, “Race to the Bottom; Corporate Complicity in Chinese Internet Censorship” (August 2006) Vol.18 No. 8(c), online: <http://www.hrw.org/reports/2006/china0806/5.htm#_Toc142395828> (accessed on 9 December 2008)+(accessed+on+9+December+2008)>Google Scholar [Human Rights Watch, “Race to the Bottom”].

13 Reporters without Borders (Reporters san frontiers), online: <http://www.rsf.org/article.php3?id_article=26134&Valider=OK> (accessed on 9 December 2008). Others listed by Reporters without Borders include: Belarus, Burma, Cuba, Egypt, Iran, Saudi Arabia, North Korea, Syria, Tunisia, Turkmenistan, Uzbekistan and Vietnam.

14 Spencer, Jane & Delaney, Kevin J “YouTube Unplugged As Foreign Governments Block Sensitive Content, Video Site Must Pick Between Bending to Censorship, Doing Business” Wall Street Journal (21 March 2008), B1 Google Scholar.

15 Ibid.

16 See generally Global Internet Liberty Campaign “Regardless of Frontiers”, online: <http://www.cdt.org/gilc/report.html> (accessed on 9 December 2008)+(accessed+on+9+December+2008)>Google ScholarPubMed.

17 This paper is primarily addressing the issue of self-censorship by US technology companies rather than that which also originates from Chinese based companies such as Baidu, China's leading domestic search engine, which censors content more heavily than internationally based companies. See for example Human Rights Watch, “Race to the Bottom” (supra note 12) at Section III Comparative Analysis of Search Engine Censorship.

18 Supra note 12, Human Rights Watch, “Race to the Bottom” at 5. For Cisco, see Poulson, Kevin, “Critics squeeze Cisco over China” Wired Magazine (29 July 2005), online: Wired <http://www.wired.com/techbiz/media/news/2005/07/68326> (accessed on 9 December 2008)Google Scholar.

19 See for example the testimony by Microsoft to US House of Representatives, Committee on International Relations - Joint Hearing of the Subcommittee on Africa, Global Human Rights & International Operations and the Subcommittee on Asia and the Pacific - Jack Krumholtz, Associate General Counsel and Managing Director, Federal Government Affairs, Microsoft (15 February 2006),online: <http://www.microsoft.com/presspass/exec/krumholtz/02-15WrittenTestimony.mspx> (accessed on 9 December 2008).

20 H.R. 4780 [109th]: Global Online Freedom Act of 2006.

21 H.R. 275: Global Online Freedom Act of 2007.

22 Ibid. at preamble.

23 Ibid. See generally TITLE II--MINIMUM CORPORATE STANDARDS FOR ONLINE FREEDOM including sections 202, 203 and 204, online: <http://www.govtrack.us/congress/billtext.xpd?bill=h110-275> (accessed on 9 December 2008). For more information on this Act, see Deva, Surya, “Corporate Complicity in Internet Censorship in China” (2007) 39 Geo. Wash. L. Rev. 255 Google Scholar.

24 Proposal for a Directive of the European Parliament and Council concerning the EU Global Online Freedom Act, (HR 4780) 2008, online: <http://www.julesmaaten.eu/_uploads/EU%20GOFA.htm> (accessed on 9 December 2008).

25 Ibid. at Article 8.

26 Ibid. at Article 13. The legislation defines “European business” as: A) any corporation, partnership, association, joint-stock company, business trust, unincorporated organization, or sole proprietorship that--(i) has its principal place of business in a Members State; or (ii) is organized under the laws of a Member State or a territory, possession, or commonwealth of a Member State;(B) any foreign subsidiary of an entity described in subparagraph (A) to the extent such entity--(i) controls the voting shares or other equities of the foreign subsidiary; or (ii) authorizes, directs, controls, or participates in acts carried out by the foreign subsidiary that are prohibited by this Directive.

27 Ibid. at Article 15.

28 See for example Sandoval, Greg, “Google's privacy concerns unfounded: US government” (27 February 2006), online: CNet News.com <http://www.zdnet.com.au/news/software/soa/Google-s-privacy-concerns-unfounded-US-government/0,130061733,139240321,00.htm> (accessed on 9 December 2008)Google Scholar.

29 Supra note 11 at 18. The pledge was signed by Yahoo!’s wholly owned subsidiary based in Hong Kong.

30 For example, see: “Yahoo helped jail China writer” BBC News (7 September 2005), online: BBC News <http://news.bbc.co.uk/1/hi/world/asia-pacific/4221538.stm> (accessed on 9 December 2008)+(accessed+on+9+December+2008)>Google ScholarPubMed.

31 Reporters sans frontieres, “Information supplied by Yahoo! helped journalist Shi Tao get 10 years in prison” (2005), online: <http://www.rsf.org/article.php3?id_article=14884> (accessed on 9 December 2008).

32 Wang Xiaoning v. Yahoo! Inc, No. 07-cv- 2151 (Northern District of California) (9th Cir docketed April 18, 2007).

33 World Organization for Human Rights USA, “Complaint for Tort Damage lodged in the District Court of California on behalf of Wang Xiaoning, Yu Ling and additionally presently unnamed and to be identified individuals v Yahoo! Inc, Yahoo! Holdings (HK) Ltd, Alibaba.com, Inc”, online: <http://www.humanrightsusa.org/> (accessed on 9 December 2008)+(accessed+on+9+December+2008)>Google Scholar.

34 28 USC §1350 (1789).

35 The statement of claim also alleges violations of Californian State law and contraventions of the Electronic Communications Privacy Act 18 USC 2510.

36 United States District Court for the Northern District of California, “Order Denying Defendant Yahoo!'s Motion for an Early Case Management Conference and Order”, online: <http://www.humanrightsusa.org/modules.php?op=modload&name=UpDownload&file=index&req=viewdownload&cid=2> (accessed on 9 December 2008)+(accessed+on+9+December+2008)>Google Scholar.

37 Supra note 6, Article 19 of the UDHR; Article 19 of the ICCPR, 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).

38 See generally Article 19 of the Global Campaign for Freedom of Expression, online: <http://www.article19.org/> (accessed on 9 December 2008).

39 See for example Nokia's Code of Conduct (2005), online: <http://www.nokia.com/NOKIA_COM_1/Corporate_Responsibility/Sidebars_new_concept/sb_Code_of_conduct/eng_code_of_conduct2005.pdf> (accessed on 9 December 2008).

40 Although a particular state may not recognize the principle of free expression in its domestic law, it may be bound if it is considered to be an international norm that is “supported by patterns of generally shared legal expectation and generally conforming behavior.” Jordan J. Paust, “The Complex Nature, Sources and Evidences of Customary Human Rights Law,” 25 Ga. J. Int'l & Comp. L. 147 at 151 (1996). See also Lillich, Richard B., International Human Rights, 2nd ed. (Boston: Brown, 1991) at 89 and 127 Google Scholar. Sources of international law include international conventions and treaties, international custom, and general principles of law recognized by civilized nations; Article 38(1) of the Statute of the International Court of Justice.

41 Article 18 of the Vienna Convention on the Law of Treaties 1969, 23 May 1969, 115 UNTS 331 (entered into force 27 January 1980) expands on a state's intention to comply:

Obligation not to defeat the object and purpose of a treaty prior to its entry into force. A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when (a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or (b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.

42 Adopted on 4 December 1982.

43 Supra note 23 at 262-265.

44 Supra note 6 at Article 29(2) of the UDHR; supra note 34 at Article 19.3 of the ICCPR.

45 UN Human Rights Committee, General Comment No. 10 Freedom of Expression (Art 19): 29/06/83 [3].

46 For example in Mukong v. Cameroon No. 458/1991, views adopted 21 July 1994, 49 GAOR Supp. No. 40 UN Doc. A/49/40 at para 9.7.

47 See Article 19 Memorandum by Article 19 International Centre Against Censorship on Algeria ‘sproposed Organic Law on Information at 4, online: <http://www.article19.org/pdfs/analysis/algeria-press-law.pdf> (accessed on 9 December 2008).

48 Report of the UN Special Rapporteur, Mr Abid Hussein, pursuant to the Commission on Human Rights Resolution 1993/45;’ Reference E/CN.4/1995/32, 14 December 1995, para 48.

49 Supra note 6 at Article 12 of the UDHR; supra note 37 at Article 17 of the ICCPR; Article 16.1 of the Convention on the Rights of the Child, 20 November 1989, 1577 UNTS 3 (entered into force 14 December 1990). See also the OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data 1981, online: <http://www.oecd.org/document/18/0,2340,en_2649_201185_1815186_1_1_1_1,00.html> (accessed on 9 December 2008)+(accessed+on+9+December+2008)>Google Scholar.

50 UN Human Rights Committee, General Comment No 16 The right to respect of privacy, family, home and correspondence, and protection of honour and reputation (Art 17) 08/04/88 [1].

51 Supra note 48.

52 Supra note 5 at paras 10–19.

53 Kinley, D & Tadaki, J, “From Talk to Walk: The Emergence of Human Rights Responsibilities for Corporations at International Law” (2003-2004) 44 Va. J. Int'l L. 931 at 944–947 Google Scholar.

54 UN Human Rights Committee General Comment No. 31 [80] Nature of the General Legal Obligation Imposed on States Parties to the Covenant: 26/05/2004. CCPR/C/21/Rev.1/Add.13. (General Comment) at para 10. See also Ruggie, J, Report of the Special Representative of the Secretary General on the issue of human rights and transnational corporations and other business enterprises, A/HRC/4/035, 9 February 2007, Section IGoogle Scholar.

55 See Seck, Sara L., Home state obligations for the prevention and remediation of transnational harm: Canada, Global Mining and Local Communities (D. Phil. Thesis, Osgoode Hall Law School, 2007) [unpublished] [Seck] at 104 Google Scholar where she notes “The place of incorporation is the dominant mode for determining corporate nationality in a large number of countries including… the United Kingdom and the United States”. Determining corporate nationality is a state practice and Seck notes at 103 that “state practice diverges, however, with common law countries tending to accord nationality on the basis of incorporation within their territory regardless of where the business management is carried out, while civil law countries confer nationality on the basis of where the company has its seat of management”. This article will rely on the traditionally accepted grounds for determining corporate nationality as the place of incorporation, registered main office or principal place of business. See Schutter, Oliver De, “Extraterritorial Jurisdiction as a tool for improving the Human Rights Accountability of Transnational Corporations” Report prepared as a background paper for the legal experts meeting with John Ruggie in Brussels on 3-4 November 2006, December 2006, online: <http://www.reports-and-materials.org/Olivier-de-Schutter-report-for-SRSG-re-extraterritorial-jurisdiction-Dec-2006.pdf> (accessed on 9 December 2008) [De Schutter]Google Scholar. Also see Case concerning the Barcelona Traction, Light and Power Company Ltd (Belgium v. Spain) [1970] ICJ Rep 4 where the International Court of Justice found that the nationality of a corporation is to be determined by the state in which it is incorporated.

56 Ibid. Seck at 90 for her discussion of the Lotus case (S.S. Lotus (France v. Turkey) (1927) P.C.I.J. (Ser. A) No. 10).

57 Ruggie, J, Report of the Special Representative of the Secretary-General (SRSG) on the issue of human rights and transnational corporations and other business enterprises, “Business and Human Rights: Mapping International Standards of Responsibility and Accountability for Corporate Acts”, A/HRC/4/035 9 February 2007, online: <http://www.business-humanrights.org/Documents/SRSG-report-Human-Rights-Council-19-Feb-2007.pdf> (accessed on 9 December 2008) [Business and Human Rights]Google Scholar. See also, Ruggie, J, State Responsibilities to Regulate and Adjudicate Corporate Activities under the United Nations’ core Human Rights Treaties Individual report on the International Covenant on Civil and Political Rights Report No. III (June 2007), online: <http://www.reports-and-materials.org/Ruggie-ICCPR-Jun-2007.pdf> (accessed on 9 December 2008) [ICCPR Report]Google Scholar.

58 Ibid. at para 15 of Business and Human Rights.

59 Supra note 54 at para 10.

60 Zerk, Jennifer, Multinationals and Corporate Social Responsibility; Limitations and Opportunities in International Law (Cambridge: Cambridge University Press, 2006) [Zerk] at 135 CrossRefGoogle Scholar.

61 These principles are discussed only briefly here and a more detailed discussion can be found in Zerk (ibid.) at104-113 and De Schutter (supra note 55) at 22-29.

62 15 US.C. §§ 78dd-1.

63 Supra note 55, De Schutter at 24.

64 The Alien Tort Claims Act 28 USC §1350 (1789) was passed as part of s. 9 of Judiciary Act (1789). The Act in its entirety reads: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” For an overview of cases brought under ATCA with respect to corporate liability, see generally Joseph, Sarah, Corporations and Transnational Human Rights Litigation (UK: Hart Publishing, 2004) [Sarah Joseph]Google Scholar. While the case of Sosa v. Alvarez-Machain 542 US 2004 (Sup. Ct.) did not deal with corporate violations of human rights under ATCA, it did provide a sense of a narrowing of the category of human rights violations that will be viewed as falling within the confines of the Act.

65 Supra note 55. See De Schutter's discussion on the recent history of the effects doctrine at 22.

66 Comment by P.M Roth, “Reasonable Extraterritoriality Correcting the ‘Balance of Interests’” (1992) 41 ICLQ 267 at 285 as quoted by De Schutter (supra note 55) at 23.

67 Supra note 60. See Zerk's discussion regarding the possible use of the effects doctrine to regulate labour standards in host states by arguing that the economic “effects” of the migration of jobs and industry to countries with lower standards could impact local industry at 110.

68 See generally Corporate Complicity and Legal Accountability, Report of the International Commission of Jurists Expert Legal Panel on Corporate Complicity in International Crimes 2008 Vol. 2, online: <http://icj.org/IMG/Volume_2.pdf> (accessed on 9 December 2008).

69 Supra note 55, Seck at 118.

70 Chertoff, M, “Justice Denied”, The [Washington] Weekly Standard (12 April 2004) 28 Google Scholar. The ICC is a permanent tribunal that investigates and tries individuals for the most serious international crimes: genocide, crimes against humanity, and war crimes. Regarding the failure of the ICC to include corporations within its jurisdiction, see Clapham, A., Human Rights Obligations of Non State Actors (New York: Oxford University Press, 2006) at 244–246 Google Scholar.

71 Criminal Code 1995 (Cth). Division 268 enacts within Australian federal criminal legislation the crimes of genocide, crimes against humanity and war crimes. Section 12.1 of the Code provides that “This Code applies to bodies corporate in the same way as it applies to individuals.”

72 Robinson, Allens Arthur Law Firm, “ ‘Corporate Culture’ as a Basis for the Criminal Liability of Corporations” Feb 2008, online: <http://www.reports-and-materials.org/Allens-Arthur-Robinson-Corporate-Culture-paper-for-Ruggie-Feb-2008.pdf> (accessed on 9 December 2008)Google Scholar.

73 For further discussion on defining corporate complicity in human rights violations, see Clapham, Andrew & Jerbi, Scott, “Categories Of Corporate Complicity In Human Rights Abuses” (2000-2001) 24 Hastings Int'l & Comp. L. Rev. 339 Google Scholar. Also regarding the Australian provisions, see Kyriakakis, Joanna, “Australian Prosecution of Corporations for International Crimes; The potential of the Commonwealth Criminal Code” (Sept 2007) 5(4) Journal of International Criminal Justice 809 CrossRefGoogle Scholar.

74 Supra note 5 at para 9.

75 Supra note 55, De Schutter at 18.

76 Vienna Declaration and Programme of Action, UN GAOR, 1993, UN doc.Google Scholar A/Conf.157/23 as adopted by the World Conference on Human Rights on 25 June 1993, para 5 which begins by arguing that “All human rights are universal, indivisible and interdependent and interrelated”.

77 Online: <www.unglobalcompact.org> (accessed on 9 December 2008).

78 Supra note 5, UN Norms at para A, 1.

79 CBS News 48 Hours, October 17, 1996, online: <http://www.saigon.com/~nike/48hrfmt.htm> (accessed on 9 December 2008).

80 Avery, Christopher L., Business and Human Rights in a Time of Change (Amnesty International, 2000) at 65 Google Scholar which discusses the likely initial reaction of companies being to first deny the allegations, seek to blame others, then enter into damage control before embarking on the road to compliance.

81 Ibid. at 1.

82 Amnesty International and Prince of Wales Business Leaders Forum, “Is is any of your business?” April 2000, online: <http://www.iblf.org/docs/IsItYourBusiness.pdf> (accessed on 9 December 2008)+(accessed+on+9+December+2008)>Google ScholarPubMed.

83 See for example the code of the Fair Labour Association which states:

Any Company that determines to adopt the Workplace Code of Conduct also shall require its licensees and contractors and, in the case of a retailer, its suppliers to comply with applicable local laws and with this Code in accordance with the Principles of Monitoring and to apply the higher standard in cases of differences or conflicts. Which explicitly acknowledges a broad sphere of corporate influence, online: <http://www.fairlabor.org/all/code/index.html> (accessed on 9 December 2008).

84 Online: <http://www.blihr.org/Pdfs/BLIHR%20Report%202004.pdf> (accessed on 9 December 2008).

85 International Council on Human Rights Policy, Beyond Voluntarism: Human Rights and the Developing International Legal Obligations of Companies Main Report (2002) 99-102 at 136, online: <http://www.ichrp.org/index.html?project=107> (accessed on 9 December 2008) [ICHRP]+(accessed+on+9+December+2008)+[ICHRP]>Google Scholar.

86 Lehr, Amy & Jenkins, Beth, “Business and human rights – Beyond corporate spheres of influence”, 12 Nov 2007, online: <http://www.ethicalcorp.com/content.asp?ContentID=5504> (accessed on 9 December 2008) Google Scholar.

87 Ruggie, J, “Protect, Respect and Remedy: a Framework for Business and Human Rights” Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, A/HRC/8/5, 7 April 2008 17Google Scholar.

88 Supra note 57, ICCPR Report at 4, para1.

89 Ibid.

90 Supra note 87.

91 While the notion of direct responsibility being placed on corporations appears radical, it is not the first time duties have been placed on them in international law. Kinley & Tadaki (supra note 53) note that TNCs have direct duties under some multilateral conventions. For example, both the International Convention on Civil Liability for Oil Pollution Damage and the Convention on Civil Liability for Damage resulting from Activities Dangerous to the Environment directly impose liability on legal persons including corporations.

92 Ratner, S, “Corporations and Human Rights: A Theory of Legal Responsibility?” (2001) 111(2) Yale J.J. 44 at 468 Google Scholar.

93 Raz, J, The Morality of Freedom (1986) at 171 Google Scholar: as quoted by Ratner (ibid) at 468.

94 See generally Nolan (supra note 9) and see for example s172 of the Companies Act UK (2006) which imposes a new potentially broad duty on company directors to have regard to the impact of a company on the community and the environment.

95 Supra note 85 at 139.

96 See discussion accompanying note 81.

97 Doe I v. Unocal Corp, US Court of Appeals for the Ninth Circuit, filed 18 September 2002, OpinionGoogle Scholar. This case was eventually settled in 2005 and the decision vacated. The later decision of Church of Sudan et al. v. Talisman Energy Inc. and Republic of Sudan, US District Court Southern District of New York, 01 Civ 9882 (DLC), Opinion and Order (12 September 2006) raises some points of difference with the Unocal testGoogle Scholar.

98 See generally Sarah Joseph (supra note 64) at 129–143.

99 Ibid. at 129.

100 Ibid. at 130.

101 For example, Yahoo! China's website operates Chinese language portal services. In October 2005, Alibaba Group acquired Yahoo! China in a transaction whereby Yahoo! became a substantial shareholder of Alibaba Group. In connection with this transaction, Yahoo! agreed to grant to Alibaba Group the exclusive rights to use in China the “Yahoo!” name and certain technologies owned by Yahoo!, as well as the right to sub-license these rights to other members of Alibaba Group. Yahoo! China is headquartered in Beijing. See online: <http://www.alibaba.com/aboutalibaba/aligroup/index.html#Yahoo!China> (accessed on 9 December 2008).

102 Online: <www.globalnetworkinitiative.org> (accessed on 9 December 2008).

103 See Levi Strauss & Co, “Social Responsibility/Sourcing Guidelines” (2005), online: <http://www.levistrauss.com/responsibility/conduct/index.htm> (accessed on 9 December 2008)+(accessed+on+9+December+2008)>Google Scholar.

104 Gordon, Kathryn & Miyake, Maiko, “Deciphering Codes of Corporate Conduct: A Review of their Contents”, Working Paper No 1999/2 (2000) 12, online: <http://www.oecd.org/dataoecd/23/19/2508552.pdf> (accessed on 9 December 2008)Google Scholar. This OECD study was the result of an investigation of 246 voluntary codes collected “from business and nonbusiness contacts which OECD Member governments helped identify” at 8. Out of this set of codes, Gordon and Miyake found that 118, or 49 per cent, were issued by individual companies (mostly multinationals); 34 per cent were industry and trade association codes; two per cent were codes issued by an international organisation; and 15 per cent were codes issued by a partnership of stakeholders (mainly NGOs and unions).

105 See Ward, Halina, “Legal Issues in Corporate Citizenship”, Report prepared for the Swedish Partnership for Global Responsibility (2003) 6–7, online: <http://www.regeringen.se/content/1/c6/02/18/54/46e90176.pdf> (accessed on 9 December 2008)Google Scholar.

106 For example, the Johannesburg Securities Exchange adopted a “Code of Corporate Practices and Conduct” that requires all publicly listed companies to disclose non-financial information in accordance with the Global Reporting Initiative.

107 539 US 654 (2003).

108 For further discussion on the value of codes of conduct and their form see Posner, Michael & Nolan, Justine, “Codes of Conduct and Workers Rights” in Flanagan, Robert and Gould, William IV, eds., International Labor Standards: Globalisation, Trade And Public Policy (Stanford, California: Stanford Law and Politics, 2003) at 207-26Google Scholar.

109 For example, the reaction of Nike in 1997 to the leaked report on one of their supplier factories by Ernst & Young. See O'Rourke, Dara, “Smoke From A Hired Gun: A Critique of Nike's Labor and Environmental Auditing in Vietnam as Performed by Ernst & Young”, Transnational Resource and Action Center Report, 10 November 1997, online: <http://corpwatch.org/article.php?id=966> (accessed on 9 December 2008)+(accessed+on+9+December+2008)>Google Scholar.

110 Global Network Initiative, “Principles on Freedom of Expression and Privacy”, online: <http://www.globalnetworkinitiative.org/principles/index.php> (accessed on 9 December 2008)+(accessed+on+9+December+2008)>Google Scholar.

111 These are all questions other industries, such as the apparel industry before it, have grappled with, with a mixed degree of success. See for example the Fair Labor Association and its ongoing effort to improve working conditions via adherence to its code, online: <www.fairlabor.org> (accessed on 9 December 2008).

112 Rosen, Jeffrey, “Google's Gatekeepers” New York Times Magazine (28 November 2008), online: <http://www.nytimes.com/2008/11/30/magazine/30google-t.html> (accessed on 9 December 2008)Google Scholar.

113 Supra note 9, Kinley D, Nolan J & Zerial N at 37.

114 See for example the special report in The Economist <author>, “Just Good Business” (17 January 2008) which discusses corporate social responsibility as a mainstream issue and widely accepted, online: <http://www.economist.com/specialreports/displaystory.cfm?story_id=10491077> (accessed on 9 December 2008).