Lawyers Criticize “Straitjacket” for Online Rumors

China’s Supreme People’s Court and Supreme People’s Procuratorate issued a new judicial interpretation on Monday, sanctioning fines or prison time for those profiting from spreading or deleting posts. Anyone deliberately posting lies, for profit or not, may face up to three years in prison if their posts are shared more than 500 times or viewed by more than 5,000 people. Xinhua explained the rationale for this “straitjacket” on online rumors:

As the Internet has grown into an easily accessible platform for the Chinese public, an increase in crimes such as and blackmail has occurred online over the past few years.

[…] However, the top court’s spokesman, Sun Jungong, stressed that Internet users are still encouraged to expose corruption and other violations despite the new rules, adding that as long as web users are not fabricating information to slander others, they will not face criminal charges.

[…] The new rules are another means for authorities to ensure the healthy development of the Internet. [Source]

The interpretation is the latest move in an ongoing campaign against online misinformation and “black PR” which critics fear is a cloak for broader speech controls. Addressing propaganda chiefs last month, Xi Jinping urged a more combative stance towards public opinion, telling his audience to build “a strong army” to “seize the ground of new media”. Public commentary supporting the campaign has called for “brandished swords” and “heavy fists”. The rhetoric has been backed with hundreds of arrests including more than 50 in Inner Mongolia alone. Netizens have retaliated with calls for following a misleading weibo post from Beijing police and Xinhua’s erroneous announcement that Istanbul had been awarded the 2020 Olympic Games.

The New York Times’ Chris Buckley talked to CDT founder Xiao Qiang about the campaign:

“This is going to last at least a few months,” he said. “The other ’s [influential microbloggers] will be targeted some way or another. Party leaders, he added, “worry that they have lost control of public opinion on the Chinese Internet. And this round they’ll be much harsher, and the targets will be the more influential people in the Chinese public sphere.”

[…] The attention of a Big V microblogger can transform an otherwise obscure incident — a land dispute in a village, a pollution spill in a river, graft by a small-town official — into a subject of passionate national discussion and a headache for the government. The tone of their commentary varies from earnest outrage to sarcasm to allusive irony; the last is intended to lull censors who prowl for offensive messages.

[…] But the explosion of has also fed a dank undergrowth of scams and fakery. Businesses use bogus “zombie” accounts to spread paid-for messages that give a boost to clients or discredit their rivals. Other operators make money by scrubbing messages that are damaging to businesses or politicians. “There is a lot of pay for play and dirty money going around,” [Sinocism’s Bill] Bishop said. [Source]

Nevertheless, a now deleted report cited by The Wall Street Journal argued last week that most defamation cases were matters for civil rather than criminal law. He Bing of the China University of Political Science and Law agreed, but complained to Global Times last week that courts only rarely accept suits. The newspaper’s Jiang Jie also noted other concerns about arbitrary and harsh enforcement by police:

[… W]hat of the case in Shiyan, Hubei Province, where a man surnamed Xue was detained on August 29 for fabricating information and disturbing social order? In Xue’s case, his “rumor” had the basic facts of a car accident correct, but he said seven had died when in fact only three had perished.

[…] Wang Zhanyang, a professor with the Central Institute of Socialism, pointed out that the authorities have not yet clarified a precise definition of rumors, yet the campaign has evolved into a national movement. He said this has given rise to different approaches to enforcing the campaign by different local departments.

“Life is filled with incorrect figures and it is hard to avoid them. Mistakes do not necessarily violate the law, let alone constitute a crime. Such serious punishments for tiny slips will only worry the public,” Wang said.

[…] “Local police may also have quotas to meet, which further muddles the situation,” Wang noted, adding that people must be extremely cautious when airing extreme opinions because they may end up having unintended consequences. [Source]

Even some police seem uneasy with the campaign: the official account of the Guangzhou police reportedly warned early this month that it should be reined in to stop it becoming a “nightmare.”

The new interpretation promises that only malicious fabrication will be punished, but lawyers have questioned both its motives and its legal basis, while netizens point out that the low bar of 500 shares may be open to abuse. From Josh Chin at The Wall Street Journal:

Lawyers criticized the new ruling as overly broad and an attempt to discourage government critics. “What’s the point in even discussing this?” wrote lawyer Liang Xianglu. “Law is not a root that will ever truly grow in this patch of earth. Instead it will always be a stick wielded by a bunch of thugs.”

[…] By expanding the scope of [provocation and incitement] to cover online activity, the new judicial interpretation “violates the principles of criminal law,” said Xu Xin, a law professor at the Beijing Institute of Technology.

Mr. Xu took particular exception to the expanded use of provocation and incitement, which he described as a “catchall” crime that is often abused by authorities. “The legal community has been calling for this crime to be eliminated for years,” he said. [Source]

And from Patrick Boehler at South China Morning Post:

Many critics reacted with sarcasm. “I really, really love the Communist Party,” Beijing-based lawyer Pu Zhiqiang wrote on his Sina Weibo microblog post on Monday night, along with a photo of him holding a bouquet of red roses. Dozens of people – among them several prominent lawyers – replied calling him a “rumour-monger”. “Can’t I slander myself?,” lawyer Pu retorted.

[…] , a Zhejiang-based lawyer, argued in a post that the National People’s Congress decree granting the two judicial organs the right to issue such guidelines dating from 1981 was superseded by China’s 1982 constitution. They therefore lacked the authority to issue such legal interpretations, Wang wrote in a blogpost.

[…] The Guangdong-based Southern Metropolis Daily declared itself in opposition to the new guidelines in a terse Sina Weibo post. “How a country treats speech, especially not very accurate speech, is a benchmark of its constitutional rule. […] It is a must that this will not stifle criticism.” [Source]