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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 looks at crackdown against online “rumors”  

2009-08-31 14:34:23|  分类: expect |  标签: |举报 |字号 订阅

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Hu Yong Looks at the Crackdown Against Online “Rumors”

http://siweiluozi.blogspot.com/2009/08/hu-yong-looks-at-crackdown-against.html

Beijing University journalism professor Hu Yong has just published another excellent opinion piece in Saturday’s Southern Metropolis Newsthat looks at the continued efforts by Chinese authorities to crackdown on criticisms that appear on the Internet. Following on his critique of the use of criminal defamation charges to punish individuals who posted information about the Yan Xiaoling case (see also here and here),this piece looks at how the authorities also punish people for“spreading rumors” online—even when those “rumors” are really littlemore than inaccurate information or opinions based in error.

Below I’ve translate a fuller version of Prof. Hu’s piece that appears on his blog.


The Public’s Right to Question Shouldn’t Be
Misconstrued as Spreading Rumors

Hu Yong

The Hangzhou “70 MPH” incident thatwas once such a sensation has again created a wave of controversy—allbecause local police placed Xiong Zhongjun, from Ezhou in HubeiProvince, under 10-day administrative detention for using the Internetto spread a rumor that the defendant who appeared in court in thedrag-racing case was a “surrogate” for Hu Bin.

In fact, just as the debate over the “surrogate theory” was at itsmost intense, a netizen on the Tianya forum worried over whether thetheory’s originator would wind up being “extradited” for defamation.The charge against Xiong Zhongjun isn’t defamation, perhaps becausethis charge has recently become rather notorious after being usedindiscriminately. But the actions taken by the relevant authoritiesreally are no different this time, placing him under criminal detentionfor fabricating and disseminating rumors to disrupt public order. Therate at which this vague crime has been trotted out in a series of pastInternet cases is extremely high.

If we look back a bit we see that a legal trick frequently used bythe relevant authorities in major public safety incidents in recentyears has been to treat statements that have a certain factual basisbut are not entirely accurate as rumors and crack down with force. Theresult is that during major social and safety incidents, statementsmade by Chinese citizens can carry great legal risk.

Articles 105(2), 181, 221, and 291(a) of China’s criminal code haveprovisions criminalizing the use of rumors and other means to incitesubversion of state power, the fabrication and spread of falseinformation to adversely affect securities trading, the fabrication andspread of false stories to damage the commercial reputation of anindividual or the reputation of a commercial product, and theintentional dissemination of alarmist information known to befabricated. Article 25(1) of the Public Order Administration PunishmentLaw states that “those who disseminate rumors, falsely report danger,epidemic, or alarm or intentionally disrupt public order through othermeans” are subject to administrative fine or detention.

With respect to the publication and dissemination of rumors via newmedia, the PRC Telecommunications Regulations enacted on 25 September2000 state that no organization or individual shall usetelecommunications networks to produce, reproduce, publish, ordisseminate information that “spreads rumors, disrupts social order, orundermines social stability.” In the National People’s CongressStanding Committee’s 28 December 2000 “Decision on SafeguardingInternet Security,” it says that acts such as “use of the Internet tospread rumors, slander, or express or disseminate other harmfulinformation, incite subversion of state power or the overthrow of thesocialist system, or incite splitting the nation or underminingnational unity,” “use of the Internet to fabricate and disseminate thetrading of securities or futures or any other false information thatdisrupts financial order,” or “use of the Internet to defame others orfabricate facts to slander others” should be punished according to theprovisions of the criminal law. The “Regulations for the Administrationof Internet News Information Services” issued by the State CouncilInformation Office and the Ministry of Information Industry on 25September 2005 require that Internet news information services containnothing that “spreads rumors, disturbs social order, or underminessocial stability.”

These provisions appear vague because they lack concretedeterminative criteria. For example, in order to hand down anadministrative punishment there must be consequences that “disruptspublic order,” but precisely what constitutes “disruption of publicorder” in such cases is subject to debate. Moreover, the law treatsspreading rumors and making false reports of danger, epidemic, or alarmas the same, and the requirement of the subjective element of“intention” creates a problem: if an individual unintentionallypublishes or disseminates information that is not entirely factual,should he or she bear the corresponding legal responsibility?

From the “Zhang Zhijian affair” in 2006 to [the cases of] “RedDiamond Empire” in 2007 and “SS Mountain Division” in 2008, there hasbeen a series of cases in which netizens have been arrested or detainedby law enforcement agencies throughout [China] for “re-posting” or“commenting” online. In other instances, individuals have been chargedwith crime for text messages. For example, in January 2007 Beijingpolice stated that individuals could be sentenced to five years or morefor sending text messages with rumors about “tainted pork.” During theLake Tai blue-green algae contamination, police in Wuxi placed a localresident surnamed Ding under public order detention for sending a textmessage by mobile phone to more than 130 people, saying that the“carcinogen level in Lake Tai water was 200 times above [the acceptablelevel].”

If one carefully differentiates between these cases according to thelaws and regulations, it is not difficult to discover clear abuse ofthe law by the government. First, the government has a tendency totreat any hearsay that is not entirely factual as a rumor in the legalsense of the word. At the time when “SS Mountain Division” reposted[information about casualties in a major railroad accident], therelevant agencies were in the process of investigating and handling thetrain collision on the Ji’nan-Qingdao railway line and information wasconfusing. Even though the post inaccurately reported the number ofcasualties, it still confirmed that the accident resulted in a largenumber of casualties. In fact, in the relatively short periodimmediately after a major disaster or accident occurs, even thegovernment has difficulty immediately judging whether statements aretrue or false. The authorities confuse the difference betweendisseminating rumors to disrupt public order and spreading gossip outof concern for one’s personal safety—the latter simply cannot becharacterized as an illegal act. Following major disasters, many peoplehave spread gossip without knowing whether it is true or false. Warnyour friends and relatives to take care—given the current legal system,nearly every one of them could wind up arrested!

Second, the point of departure for handling rumor cases should be[consideration of] whether or not the rumor “intentionally disruptspublic order” or is enough to “seriously disrupt social order” and notwhether the information spread is true or false. The posts by “RedDiamond Empire” and “SS Mountain Division” reposted and quoted [otherinformation]. The [author's] tone may be extreme, but whether a postconstitutes “disruption of public order” depends on the extent of itsimpact and the objective consequences to which it leads—for instance,the scope of a post’s circulation, whether it resulted in public fearor had an affect on the normal order of production, work, education, ordaily life.

In this case, Xiong Zhongjun simply questioned whether judicialauthorities fairly enforced the law. This will not cause public fear orlead to great chaos in the city’s public order. Moreover, theauthorities claim that Xiong fabricated and spread the rumor about “HuBin’s surrogate,” causing netizens to be suspicious and misleadingpublic opinion. They seem to want to prove the rumor-monger’ssubjective intent, but how can one determine whether Xiong’s judgmentabout a “surrogate” was not made out of the spirit of citizenship andthe rational desire to encourage the judicial authorities to acceptpublic oversight? The so-called dissemination of the “Hu Bin surrogate”rumor is nothing more than an individual’s analysis and suspicion basedon a news photo—how can this be called a “rumor”? Those who claimedthat Zhou Zhenglong faked his photograph of a tiger must be breakingout in a cold sweat—if Zhou truly photographed a tiger, all those whoclaimed otherwise could face extradition!

It’s especially important to emphasize that the public has the rightto question or refute the veracity of any report, even governmentannouncements. If a member of the public sends a text message orreposts relevant posts, even if they contain some untruths they shouldbe seen as [an effort to] protect onself or exercise the right tomonitor [public affairs]. To soothe people’s worries and eliminateinaccurate speech, the government must release more public, transparentinformation. Countries with rule of law have long held the view thatone should use the criterion of “clear and present danger” to judgewhether speech is a threat to public order, For example, one importantreason to be tolerant of reports by the media and public concernfollowing a disaster is that these can prevent further danger and savemore lives. By comparison, the possible fear and chaos [these reportsmight create] is a lesser evil that must be tolerated. Rather thanconcocting ways to crack down on criticism, as a remedy for the biasesthat might be created by those expressing [mistaken information], thegovernment can reduce the impact by releasing the truth as a means ofclarification and exposing the false information that has beendisseminated.

After Xiong Zhongjun was detained, one point of view held that manynetizens haven’t yet grasped the difference between questioning andspreading rumors and thus abuse their “right to question.” Pray tell:Can we not question court judgments? Can we not question the state’spublic authority? Is a citizen’s right to question really somethingthat needs to be officially granted? Some say that netizens have“overstepped their oversight” [rights] in the Hangzhou drag-racingcase, but everyone knows that citizens have only just begun [toexercise] their right to oversight—how can we possibly have oversteppedour rights after taking a single step?

In the face of questioning and oversight from the public, therelevant authorities should reflect on why their credibility with thepublic is the way it is. It’s not that the Chinese public is toosuspicious, but rather that they have just started to learn to besuspicious. As Li Chengpeng says: “Suspicion is a progressive force insociety and is the least tolerance our country can show the public. Ifsomeday our laws were to say ’suspicion is forbidden,’ then everyonecan only obey mother and go home for dinner.”

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