{"id":4538,"date":"2005-09-23T10:56:10","date_gmt":"2005-09-23T17:56:10","guid":{"rendered":"http:\/\/chinadigitaltimes.net\/2005\/09\/23\/cdt-qa-donald-clarke-on-yahoos-legal-obligations\/"},"modified":"2009-02-24T17:12:41","modified_gmt":"2009-02-25T00:12:41","slug":"cdt-qa-donald-clarke-on-yahoos-legal-obligations","status":"publish","type":"post","link":"https:\/\/chinadigitaltimes.net\/2005\/09\/cdt-qa-donald-clarke-on-yahoos-legal-obligations\/","title":{"rendered":"CDT Q&A: Donald Clarke on Yahoo’s Legal Obligations"},"content":{"rendered":"
\nAfter Reporters without Borders reported<\/a> that Yahoo had provided the Chinese government with personal information about a customer, journalist Shi Tao, that led to his arrest, Jerry Yang, co-founder of Yahoo, told an Internet conference in Shanghai that Yahoo was simply fulfilling their legal obligations<\/a>: “The government asked for the documents and backed it up with a court order… We had to hand over the documents. We have to comply with the law.”\n<\/p>\n \nOn his Chinese Law Prof blog<\/a>, Donald Clarke disputed this argument<\/a>. CDT asked Clarke<\/a>, a professor at the George Washington University Law School, to explain his argument further.\n<\/p>\n <\/p>\n \nCDT<\/strong>: According to China’s Criminal Procedure Law<\/a>, any “unit or individual” has the duty, if requested by authorities, to hand over any material evidence that may prove a suspect’s innocence or guilt. Is that a reasonable defense for why Yahoo might have felt compelled to hand over Shi Tao’s information?\n<\/p>\n \nDC<\/strong>: Under the facts as we know them so far (and everything I say is subject to this qualification), this defense doesn’t stand up. According to the judgment<\/a>, the entity that handed over the information is Yahoo Holdings (Hong Kong) Ltd., a Hong Kong company. The Criminal Procedure Law of the PRC does not apply in Hong Kong. Yahoo (I am speaking here of the corporate group as a whole) may well have a good argument that the entity that handed over the information was misleadingly identified in the judgment, and that in reality it was a PRC entity, subject to PRC law, that did so. As far as I know, however, it has not yet made this argument. It has simply stuck to its claim that local subsidiaries have to follow local law — true, but not apparently relevant to this case. Maybe there are facts that would differentiate this case from one in which the US parent handed over information because of pressure on its PRC operations, but given that Yahoo knows the facts better than anyone else, it’s not unreasonable to infer the absence of such facts from Yahoo’s interest in making them public and its failure (again to the best of my knowledge) to do so.\n<\/p>\n