Nora Sleeth is a JD candidate at Osgoode Hall Law School.

Eight Americans are taking a novel approach to freedom of speech and have filed suit against Chinese search engine Baidu and the Chinese government.

Baidu, Inc. currently provides the leading search engine in China, with as many as 400 million users. Baidu’s success is primarily due to its willing cooperation with Chinese government policy. Baidu’s domination was fuelled by Google’s decision to pull out of China in March of 2010. Google elected to redirect Chinese searches to Google’s Hong King servers, which are uncensored. In doing so, Google rejected the Chinese government’s censorship practices and gave Baidu a “near monopoly” in the Chinese market.

Through Baidu, the Chinese government is able to censor the Internet content made available to Chinese citizens. Targets include social networking sites such as Twitter and Facebook, pro-democratic materials, YouTube, pornography and gambling, and criticism of the Chinese Communist Party. The censorship policies are intended to control citizen behaviour and promote a stable society.

Baidu is a co-defendant to the Chinese government in the lawsuit, filed May 18, 2011, at the Southern District of New York District Court in Manhattan. The eight American plaintiffs are Chinese residents of New York and pro-democracy activists who claim that the censorship of their writings and videos violates their freedom of speech and the American constitution. The censorship is facilitated by Baidu’s compliance with the Chinese government’s requests.

According to counsel for the plaintiffs, Stephen Preziosi, the allegations are that “a private company is acting as the arm and agent of a foreign state to suppress political speech, and permeate U.S. borders to violate the First Amendment.” Preziosi has also stated that Baidu and the Chinese government are in violation of both federal and New York human rights laws as “an Internet search engine is a public accommodation, just like a hotel or restaurant.” The lawsuit requests $16 million in damages, or $2 million per plaintiff, but does not ask for any changes to the Chinese government’s censorship policy. Preziosi has said that any expectation of change is “futile.”

China’s Foreign Ministry maintains that Chinese citizen’s freedom of expression is guaranteed in accordance with Chinese law. As such, it is a sovereign matter, and therefore, according to international law, it is not within the jurisdiction of foreign courts. Regardless, China must respond to the lawsuit or a default judgment will be filed against the nation.

The decision in this case will set an important precedent governing American involvement in foreign affairs.  While controversy is likely to arise regarding the question of American jurisdiction over foreign government, the global nature of the Internet clearly results in a broader impact of one nation’s anti-free speech policies.

The case is filed as Zhang et al v. Baidu.com Inc et al, U.S. District Court, Southern District of New York, No. 11-03388.