oogle Inc.

Google China
Problem
China vs. the World
We have a Chinese version of
EVERYTHING

02
 CASE ANLYSIS

Ascertain the service sector or Sub-sectors

that might be at issue

To what extent China has made commitments

in each of the identified sectors

Is Chinese internet scheme in violation of

commitments of GATS obligations

Can China invoke any exception in case of a

breach?

Suggestion on practical course of actions

Thought on how useful WTO rules can be as

weapon for protecting human rights
 TIMELINE Google.cn
Google.com launched,
is launched censored
Worldwide version
including devoted to
China Chinese
1996 market
2006

Stops redirecting Google no

due to legal longer willing
hassles. to continue
Google.com.hk link censoring due
placed on Google.cn to security
landing page breaches
JUN 2010 JAN 2010
Stopped
censoring,
started
redirecting
users to
Google.com.hk
MAR 2010
 Googles Problems in China
Theft of Googles Intellectual Property
Proble Attempts to invade accounts of certain Gmail users
m
WTO applies to measures by government, No explicit
allegations made by Google
Catego Difficult to prove evidence due to sensitive nature
Unlikely to be explicitly authorized by laws and regulations of
ry China

Blocking of service by Google.com

Proble Self Censorship by Google of the information on Google.cn
m

Affect provision of services by Google

Catego Measures by the Government
ry
Few legal aspects
Online storage and retrieval of data

Class 7523 - Data and message transmission services (CPCprov)

Group 843 - Data processing services

Subclass 75231 Data networking services(hardware)

Subclass 75232 Electronic message and information

services(telegraph)

Group 844 - Data base services (most appropriate match for

Google search services)

10
Few legal aspects

Group 844 Data base

Services

8440 84400 Data base services

Provided from primary
structured database through a
communication network

10
CHINAS SPECIFIC COMMITMENTS

Advertising Services

Quite Liberal;

No Limitations on National Treatment;

Only limitation on market access to

provide services in China

10
CHINAS SPECIFIC COMMITMENTS

Video Distribution Services

None for modes 1 and 2;

is completely blocked in
China

10
CHINAS SPECIFIC COMMITMENTS

Computer Services subsector

Consultancy Services : Installation of computer

hardware(CPC841)

Software implementation services (CPC 842)

Data processing services (CPC 843)

10
CHINAS SPECIFIC COMMITMENTS

Telecom Services Subsector

Electronic mail

Voice mail

On-line information and database retrieval

Electronic data interchange

Enhanced/Value-added facsimile services

Code and protocol conversion

On-line information and/or data processing 10

COMPLETE BLOCKING VS SELECTIVE FILTERING

Complete Blocking:

Total prohibition

Violation of the Market Access obligation under

Article XVI

Selective filtering:

Part of the website is blocked

Not subjected to obligation on market access in

Article XVI
10
WHICH GATS PROVISION IS APPLICABLE?
1. National Treatment:
According to Article XVII of GATS, WTO Members
shall accord to services and service suppliers of
any other Member, in respect of measures affecting
the supply of services, treatment no less favorable
than that it accords to its own like services and
service suppliers.

Foreign firms do not receive less favorable

treatment

Domestic website with similar contents not

blocked. Why?

a.) Great Fire Wall only filters websites outside 10

China
WHICH GATS PROVISION IS APPLICABLE?

Domestic Regulation:
According to Article VI.1, WTO Members shall
ensure that all measures of general application
affecting trade in services are administered in a
reasonable, objective and impartial manner.

Article VI , Paragraph 5 requires Members to:

Not apply licensing and qualification requirements
and technical standards that nullify or impair such
specific commitments in a manner which:

(i) does not comply with the criteria outline

(ii) could not reasonably have been expected of that

Member at the time specific commitments in those
sectors were made 10
WHICH GATS PROVISION IS APPLICABLE?

Most Favored Nation:

According to GATS Article II, WTO
members shall accord immediately and
unconditionally to services and service suppliers
of any other Member treatment no less favorable
than that it accords to like services and service
provider of any other country

10
 Most Favorable Nation Violated?

Website
based in
04
countries
with largest
Main no. of
02 target: Chinese
Chinese Immigrants Classical 03
language case of MFN
website violation, as
service
01 Most other providers
language are being
subject to treated
filtering: differently 26
English based on
Possible Exceptions

Protecting Public Morals or Public Orders

Necessity Requirement
Non-discrimination Requirement

27
Protecting Public Morals or Public
Orders
Member invoking Article XIV(a) (under GATS) must
demonstrate:
The measure must be one designed to protect public
morals or to maintain public order
As per the article, only a very weak case can be made

According to Chinese Constitution:

Freedom of speech and press ; Freedom of religion belief
Right to criticize public officials and make suggestion to
any state organ
Freedom to engage in scientific research, literary and
artistic creation and other cultural pursuits
Allowing people unhindered access to foreign websites would
not pose threat, but, quite the contrary, serve to promote
such fundamental interests
28
Necessity Requirement
Filtering applies directly to websites which contains sensitive
information
It does makes a contribution to the protection of public
morals

In terms of trade impact:

Full blockage and Selective filtering
If a website if blocked entirely, then the trade impact is
quite large, as those part of the websites which do not
offend public moral are also blocked
Selective filtering is probably fine as it only affects the
webpages with inappropriate contents
29
Non-discrimination Requirement
If any of the three elements are violated (under Article XX)
1. Application of the measure must result in
discrimination
2. The discrimination must be arbitrary or unjustified in
character
3. The discrimination must occur between the countries
where the same condition prevails

Such discriminations does exists in the case

A study found that internet filtering is enforced more
strictly on political sensitive information but not
pornographic websites
Chinas filtering regime will probably be stricken down
as arbitrary or unjustified discrimination

30
NOT A GOOD IDEA TO USE GATS
1 Hard to classify

Hard to classify Google services into a service that China has

committed to
2 Hard to make a case

Even if services could be classified, itd very hard for the US to

make a case
3 Either way, China could escape

with a public morals exception under Article XIV(a)

By achieving technical compliance, since the WTO panel
doesnt impose specifics.

4 But for how long!

Not even the mighty Great Wall of China could keep the great
censor (Chin Shih Huang) for power. Draconian empire fell
31
withing 15 years!
 CONCLUSIONS
GATS not suitable for human rights and censorship
violations

GATS Services Sectoral Classification List needs to be

updated to cover newer technology and businesses

WTOs role limited to trade-related issues

WTO dominated by producers with little attention paid to

socio-political and cultural issues

32
 THANK YOU
THANK YOU