Rule the Web through rule of law
Without a precise definition, law enforcement authorities are effectively free to interpret what “rumor” means
On September 9, the Supreme People’s Court and the Supreme People’s Procuratorate, China’s top two legal bodies, released a new statutory interpretation of the country’s criminal code. By making online “rumor and slander-mongering” a criminal offense, the government has attempted to extend its legal authority to the Web for the first time.
The development of the Internet and social media in China has played a significant role in informing the public – promoting freedom of speech, transparency of government and human rights. Despite this, the anonymity of the Internet has led to concern in official circles over the fallout caused by “irresponsible speech,” including rumor, slander and spam, which have mushroomed as a result of both lax supervision and a general distrust of information proffered by traditional media.
As China is in a transitional period, the prevalence of rumors, combined with rising social tension, is now seen by the government as a tangible threat to law and order.
But to crack down on irresponsible speech on the Internet, the authorities must follow the rule of law. Firstly, there must be a clear definition on what constitutes rumor or slander. Without a precise definition, law enforcement authorities are effectively free to interpret what “rumor” means, turning the law into yet another tool to punish political dissent. For example, in the crackdowns conducted by local police prior to the release of the statutory interpretation, many government critics were detained for creating or spreading rumors, including several journalists and netizens who had merely questioned whether a reported incident had actually happened.
With the announcement of the statutory interpretation, many of these detained activists have been released. In its white paper, China’s two highest legal authorities made some effort to limit the scope of the new law’s application. For example, they stipulated that whistle-blowing via social media does not constitute rumor-spreading, even if such reports were later proven to be unfounded. The interpretation also quantifies the punitive application of China’s criminal code in relation to irresponsible speech, stipulating that if an online rumor is viewed more than 5,000 times, or was reposted more than 500 times, the originator would be subject to a jail term of no more than three years.
Despite these efforts, this interpretation is far from adequate in ensuring that the criminal code will not be abused and simply used as another method to punish dissents. For example, as the number of Twitter equivalent Weibo users has already reached hundreds of millions, the 5,000 views or 500 “re-tweets” would make a large number of netizens punishable by jail terms for posting so-called false information.
Though the white paper also stipulates that netizens will not be punished if the “rumors” they post are not intentionally fabricated, it still leaves wiggle room for law enforcement authorities to select whom to punish, and to determine intent, leaving those detained largely defenseless. Other concepts such as “threatening social order and national interests” are also subject to interpretation, further weakening the ability of those incriminated by the new measures to prove their innocence.
As the government has pledged to deliver a just legal system, it should refrain from employing its vast power apparatus to suppress online freedom of speech before it has established effective procedures and mechanisms to ensure genuine rule of law.
To lessen the impact of false information, the authorities should instead focus on promoting government transparency and accountability.
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Badeling Pass | Beijing
Sep 2011 | Submitted by Brian Snelson
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