There is a movement afoot to build a case for filing a complaint against China at the World Trade Organization, alleging that China's efforts to censor the Internet are in violation of the terms of its WTO membership, which Reuters' Chris Buckley begins to examine here.
As I am not an attorney, I won't comment on the law involved - I'll leave it to Dan Harris and Stan Abrams to do that. But the law is not the only issue here. Perhaps more important is whether, even if China were to lose the case, the rest of the world would be willing or able to enforce it.
It is hard to overstate the importance that the Chinese government places on its ability to manage the content to which the broader Chinese public is exposed. The nation's leaders would undoubtedly see a ruling that strips them of this ability as not only a commercial challenge to the local media industry, but also as a direct attack on their ability to govern the country.
In the face of such a ruling, China would have four potential courses of action:
- comply, and watch the country flooded with all manner of content, including the salacious and seditious;
- partially comply, opening up access to more sites but come up with ways to circumvent the ruling;
- ignore the ruling, continuing to censor but risking sanctions that may provoke a trade war during a difficult economic period; or
- withdraw from the WTO, replacing it with a series of bi-lateral agreements.
All of these, even the last, are on the table. There are those among China's leaders who would view the removal of their right of censorship as a major assault on China's sovereignty. Rather than lose one of their most important means of governance, many would sooner abandon the WTO and return to the old system of bilateral agreements, or, alternately, take the lead in establishing an alternative trading regime.
It is unlikely that the Chinese government would simply stand aside and allow the country to be flooded with everything from separatist advocates to kiddie porn, and the other scenarios would make it difficult or impossible for the ruling to make a significant difference to the commercial prospects of foreign Internet or media companies in China. Surely those planning the complaint must know this.
So the real question must be whether the motives behind this action are, in fact, commercial, or whether the issue of business access is a cover for another agenda. Given the that a commercially satisfactory result in the case is unlikely, and given that the advocates for the complaint that Reuters quotes are free speech organizations, not business groups, this action is in danger of being perceived more as a political assault against the underpinnings of Party rule in China than as a straight commercial dispute, both in Beijing and in Geneva.
If this action is to go forward, and if it is to achieve its stated aims, it must do so with commercial complainants and a very specific commercial objective. To try and accomplish more far-reaching goals with such an action, however well-meaning, risks undermining the legitimacy of the WTO and disrupting the global trading system.