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胡泳  

胡泳,北京大学新闻与传播学院副教授,博士。价值中国网(www.chinavalue.net)总编辑。中国传播学会常务理事。著有《网络为王》、《众声喧哗》等,译有《数字化生存》、《未来是湿的》等。

北京大学新闻与传播学院副教授,博士。价值中国网(www.chinavalue.net)总编辑。中国传播学会常务理事。著有《网络为王》、《众声喧哗》等,译有《数字化生存》、《未来是湿的》等。

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hu yong on the internet defamation case  

2009-07-23 13:29:22|  分类: engage |  标签: |举报 |字号 订阅

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Defamation Can No Longer Be Used to Restrict Netizen Speech
Hu Yong

The public security bureau in Mawei District, Fuzhou, recentlydetained Guo Baofeng and several other netizens. The lawyer for thesedetained netizens says that they were detained for posting orre-posting items on the Internet about the “Yan Xiaoling case” in which[Yan was] “brutally gang-raped to death by eight people.” Police havegiven the reason as “suspected defamation”; when the lawyer requestedto meet with the detained individuals, police refused on the groundsthat the case “involved state secrets”. (See the July 17 Xin Kuai Baoreport.)

These detentions sound quite familiar to us. Like the cases of WangShuai, Wu Baoquan, and others, they form a part of a long, long list ofnames of those bloggers and netizens who have been detained orconvicted by organs of public authority for exposing the deeds of localgovernments. There are two basic elements of most of these types ofcases. One is the fervor with which ordinary people use the Internetand employ text or video to expose and broadcast local injustice onpopular Internet forums or blogs. The second is the habitual way thatcertain local governments, faced with suspicion or criticism, use thecrime of defamation as a weapon of public power to attack privaterights and try to restrict people’s expression on the Internet.

Police have not said yet who the victim of defamation is [in thecase of the] netizens detained this time in Mawei. But according to theprovisions of Article 246 of the Criminal Law, “Whoever, by violence orother methods, publicly humiliates another person or invent stories todefame him, if the circumstances are serious, shall be sentenced tofixed-term imprisonment of not more than three years, criminaldetention, public surveillance, or deprivation of political rights.”One should notice that this article is placed under Chapter IV of theCriminal Law, entitled “Crimes of Infringing upon Citizens’ Rights ofthe Person and Democratic Rights.” That is to say that the crime ofdefamation is for serious acts of intentionally inventing and spreadingfalse stories to damage a person’s character or destroy theirreputation. The object of this criminal infringement must be a citizenand not the reputation of a business, government organ, or otherorganization. This is why defamation cases typically can only bebrought following charges from the victim and are only prosecuted whenthe victim files suit [directly] with the court. Only in defamationcases where there is serious threat to social order and nationalinterest can the public security apparatus mobilize public authority topursue criminal responsibility.

Among the posts regarding the “Yan Xiaoling case,” a few individualofficials from the public security bureau and procuratorate have beenmentioned by name. Could it be simply because of their officialposition that [the case] has become connected with social order andnational interest? Moreover, the day after the posts appeared therelevant government agencies in Fuzhou made public statements denyingthe claims made in the posts. Even if the items by the posters andre-posters created a negative impression of the government agenciesconcerned, that doesn’t necessarily make it unlawful or illegal actsthat necessitate mobilizing the coercive power of the state forpunishment. If criticism of public officials’ actions [in carrying out]public authority can be punished as criminal defamation, the inevitableresult is that no one will dare to carry out oversight of publicauthority and there will be no way to safeguard the highest value ofcitizens’ freedom of speech.

Freedom of speech naturally includes the freedom to express mistakenideas, and it is especially the freedom to question authority. Thisrequires public officials who face criticism or even fabrications thatexaggerate the truth to not automatically invoke defamation on thegrounds of their rights of reputation or privacy—much less use thestate’s apparatus of violence to satisfy their own personal interests.Yet one after another, there have been cases [of individuals who] havebeen convicted for sending text messages or posting items on theInternet, many times with senior local officials availing themselves ofthe resources of public authority they have at hand and habituallyattacking all criticism of their policies as if it were damage to theirpersonal reputations—even not hesitating to rely on personalretaliation and stigma to clamp down on speech, thereby creating asociety and environment for opinion in which everyone feels at risk.

In the situation in Mawei, not only has defamation been used as acatch-all, vague charge, but the authorities concerned have evenresorted to using a new magic weapon—the use of “state secrets” toanswer efforts by netizens and reporters who seek to understand thetruth of the situation. To carry out an investigation for publicprosecution of the “defamation” of a local official is already amistake; to completely block the public and lawyers from understandingand investigating this case of public prosecution on the grounds thatit “involves state secrets” only compounds the error. Can those whohold public power really use “defamation” and “state secrets” soarbitrarily to muzzle people’s voices? There’s no way to explain thelogic of these parties: we can only conclude that their overbearingrule originates in their belief that they personally represent theauthority of the law and administration and that any oversight andcriticism is a threat to this authority. If this kind of scary logic isallowed to spread further, a malignant tumor will spread through localgovernance.

A netizen should enjoy both the freedom of speech protected byArticle 35 of the constitution and rely on Article 41, [which gives]the right to criticize and make suggestions or even make complaints andcharges against, or exposures of, violation of the law or derelictionof duty by any state functionary. There can be no arbitrary deprivationof these kinds of rights. As a netizen put it on kdnet: “As netizens,we pay attention to many issues, people, and phenomena be they from thepast, present, or future, and we create original posts and re-post someitems. As members of the public, we have the right toquestion—including parties concerned and the police. There are manythings about which we don’t have all the facts, so we must try tounderstand. You can explain, you can cross-examine, but you cannotbreak the law in the process of enforcing the law. Who gives you theright to use public authority to turn civil ‘defamation’ into criminalprosecution? Who is the victim of defamation here? If being concernedis a crime, then we are all guilty of this impardonable crime.”


Translated by Siweiluozi

http://siweiluozi.blogspot.com/2009/07/hu-yong-on-yan-xiaoling-defamation-case.html


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