18 May 2016
Author: Robert Precht
Category: Public Interest Law
The American Bar Association Under Fire
The controversy surrounding the American Bar Association’s decision not to publish the memoirs of famed human rights activist Teng Biao allegedly because it feared angering the Chinese government and jeopardizing its programs in the country points to a universal problem facing foreign businesses and organizations working in China. When are moral compromises appropriate?
Varieties of Moral Compromise in China
The need to make compromises arises in numerous contexts. Should scholars agree to not research certain subjects in order to get keep their visas to China? Should American universities agree to curtail academic freedom in order to have access to Chinese students? Should businesses agree to the forced turnover of intellectual property rights in order to enter into a joint agreement with state-owned Chinese companies?
Moral compromise may be a fact of life, but it is a perilous door to open. All sorts of bad acts can be pushed through in the name of expediency. There needs to be some checkpoint at the door to determine when a moral compromise is reasonable and when it’s not.
A Reasonable Test
In cases where organizations make a moral compromise to continue doing business in China at least three factors should be considered to determine the reasonableness of the compromise. Essentially, it is a cost-benefit analysis. The critical feature is that it is a transparent process. The three factors are: (1) Degree of harm caused by the compromise. Is the organization directly or indirectly contributing to human rights violations and, if so, how severe is the violation? (2) Competing good protected by the compromise. Is the organization benefiting people by making the compromise? (3) Effect on organization's integrity. Is the compromise in question consistent or inconsistent with the organization’s mission?
Case Study: Google
Scholar George C. Brenkert examined this question in the context of Google’s experience in China in the early 2000s. Google agreed to Chinese government demands that it filter out search results of sensitive topics making it impossible for Chinese users to find links to topics such as the Tiananmen massacre or Falun Gong. Brenkert found that Google was obediently complicit in a human rights violation by assisting the Chinese government to restrict the free flow of information. Nevertheless, Brenkert concluded that the compromise was reasonable. The harm to Chinese citizens was real but relatively slight -- they were prevented from obtaining information but nobody’s physical freedom was at stake. The competing good protected by the compromise was great. Google is a global company, and by acceding to the government’s demand it was protecting its ability operate in a hugely important market. As to integrity, although Google’s mantra is “Don’t be evil,” the compromise in question was not inconsistent with its overall integrity as a for-profit company. Finally, Google attempted to mitigate the damage cause by filtering search results on the mainland by providing an alternate, unfiltered search engine in Hong Kong that Chinese users could access.
Transparency and Accountability
Reasonable people can disagree whether a given compromise is justified. The virtue of having explicit factors to weigh is that it makes the compromise process transparent and subject to analysis. Without standards, organizations and businesses can just say, in effect, we considered all the factors and decided the compromise was warranted. The problem with that approach is that it allows organizations to escape accountability for actions that arguably hurt human rights in China.
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