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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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china’s tough new internet rules explained  

2014-09-15 13:11:53|  分类: 默认分类 |  标签: |举报 |字号 订阅

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China’s Tough New Internet Rules Explained

·       HU YONG

09.10.14

 

On August 7, the State Internet Information Office issued a new set of guidelines entitled “Provisional Regulations for the Development and Management of Instant Messaging Tools and Public Information Services.” These regulations require that instant messaging service providers who engage in “public information service activities” obtain “Internet news service qualifications”; that users of instant messaging tools authenticate their own identities before registering; that users who open public accounts in order to provide “public information services” undergo “examination and verification” by the instant messaging service provider; and that this information be sorted and put on file with the “controlling department for Internet information and content.” In addition, articles on current events may be published or reprinted only on public accounts owned by media organizations and news websites, or reprinted on public accounts owned by non-media organizations that have obtained “Internet news service qualifications.” No other public account that has not been officially approved may publish or reprint such content.

Let’s take a careful look at these new provisions and try our best to tease out all the implications.

1. What are “qualifications,” and what is “content”?

National legislation about information transmitted via the Internet, particularly Internet news, generally confines itself to two concepts: “qualifications” and “content.” The new Instant Messaging Regulations—colloquially known as the “WeChat Articles”—take a similarly binary approach. Consider this passage from Article 7:

Public accounts maintained by news organizations and news websites may be used to publish or reprint current events reporting, and public accounts set up by non-news organizations that have obtained Internet news service qualifications may be used to reprint such articles. Other public accounts may not be used to disseminate or reprint news about current events without approval.

 

Who can publish or reprint news about current events, who is only allowed to reprint it, and who may not do either are all questions of “qualifications.” What constitutes “current events reporting” is a question of content.

2. What constitutes “current events reporting”?

The WeChat Articles are, for the most part, extensions of existing controls on Internet content. I like to think of them as taking the regulations that govern Internet use on personal computers and transplanting them wholesale onto the mobile web. For example, when the new regulations came out, everyone on WeChat was asking the same question: Do opinion pieces count as “reporting on current events,” as described in Article 7? Not many individually-held public accounts are capable of breaking original news stories, but what about the host of public accounts that offer commentary and analysis of current events? These are the accounts that are most likely to be charged with what the government calls “disseminating malicious rumors.” And what about finance and technology—does that count as “current events reporting”?

Actually, the 2005 “Provisions on the Administration of Internet News and Information Services” include a detailed description of what constitutes “current events reporting”:

Article 2. Internet news and information services entities in the People’s Republic of China shall follow these provisions.

The news and information services in these provisions refers to news and information on current events, including reports and comments related to politics, economics, military affairs, diplomatic affairs, and so on, and reports and comments on sudden social occurrences.

The Internet news and information services in these provisions refers to publishing news and information, providing bulletin board services for current events, and transmitting current communications to the public via the Internet.

 

According to this definition, opinion pieces and articles on finance both clearly fall under the umbrella of “current events reporting.”

3. The “learning curve” effect.

The 2005 provisions were formulated before the mobile web revolution, and so pertained only to websites, online forums, text messages, etc. Now, these same regulations have been grafted onto the mobile web.

In the WeChat Articles, it’s easy to see where earlier measures for controlling Internet use on personal computers have been extended to cover the mobile web. Requiring users to register with their real names, and encouraging governmental institutions, companies, and civic organizations to maintain public accounts are the same strategies that were used earlier to conquer the rogue turf of Weibo. This goes to show that from Web 1.0 to Web 2.0, and now in the age of the mobile web, the government has felt its way to a fairly effective strategy for regulating the Internet, and can adjust quickly to the latest technological developments. The Chinese government is a quick study, and has made powerful use of the learning curve effect: The more frequently they perform a task, the less time it takes for them to get up to speed.

4. What’s “new” in the new WeChat regulations?

Probably the most important new twist is a stricter control over grassroots media—the kind of unofficial, amateur journalism practiced on WeChat using “public accounts.”

Blogging reached its peak in China during 2005 and 2006, but in those days there was no high-minded talk of “grassroots media.” However, the blogging craze turned us into a nation of writers, and then, when Weibo arrived on the scene, we went from a nation of writers to a nation of one-person news outlets. Everyone loved Weibo—both ordinary folks and the élite—and it took the whole country by storm. But even when Weibo was at its liveliest nobody was talking about the idea of grassroots media.

The grassroots media sensation really took off with the advent of mobile web technology, which introduced new ways of producing and disseminating content. It reached its culmination in WeChat, whose public accounts, introduced on August 23, 2012, allowed individuals and organizations to create mass postings of text, pictures, recordings, and later video. This turned WeChat from a private communication tool into a media platform. At the same time, because users could form circles, WeChat had the potential to become a tool for social organization—much more so than Weibo had been.

This prompted the Internet monitors to step up their game, and at least on paper their regulation of WeChat public accounts has been far stricter than their policing of Weibo’s Big V users [its most influential users, who have been verified not to be posting under a pseudonym]. Right now, a Weibo account with several million followers doesn’t need any “qualifications”; but a WeChat public account with a couple thousand subscribers does. Of course, we don’t know whether a similar set of regulations governing Weibo’s Big Vs is waiting in the wings.

 

All this hammers home how risky the media business is in China, since it’s so vulnerable to the shifting winds of government policy.

5. Gray areas in the new regulations.

Article 4 of the WeChat Articles reads:

Instant messaging service providers shall obtain corresponding qualifications as stipulated in laws and regulations. Instant communication tool service providers engaging in public information service activities shall obtain Internet news service qualifications.

 

What exactly are “Internet news service qualifications”? Articles 5, 7, and 8 of the 2005 provisions define them explicitly:

Article 5. Internet news and information services entities shall be divided into the following three classes:

(1) Internet news and information service entities publishing news and information that is beyond the range of what the entity has already published, providing bulletin board services for current events, and transmitting current communications to the public.

(2) Internet news and information services entities that are established by non-news organizations and that reprint news and information, provide bulletin board services for current events, and transmit current communications to the public.

(3) Internet news and information services entities established by news entities and that publish news that the entity has already published or broadcast.

The establishment of Internet news and information services entities prescribed by Items 1 and 2 of the above clause shall be examined and approved by the Information Office of the State Council in accordance with the Decision of the State Council on Establishing Administrative Exams and Approvals that Must Remain Subject to the Administrative Licenses and the relevant administrative regulations.

The establishment of Internet news and information services entities of Item 3 of Clause 1 of this article shall apply for registration to the Information Office of the State Council or the Information Offices of the provinces, autonomous regions, and municipalities directly under the central government.

 

Article 7. Internet news and information services entities fulfilling Item 1 of Clause 1 of Article 5 shall be subject to the following conditions:

(1) They shall have complete administrative rules and regulations.

(2) They have more than five full-time news journalists with more than three years of information work experience.

(3) They have the necessary facilities, equipment, and capital, and such capital shall be from legal sources.

The institutions applying to establish Internet news and information services entities shall be central news organizations of the provinces, autonomous regions, and municipalities directly under the central government and news organizations directly under the municipalities of the people’s governments of the provinces and autonomous regions.

[ … ]

 

Article 8. The establishment of Internet news and information services entities complying with Item 2 of Clause 1 of Article 5 and in accordance with Clauses 1 and 3 of Article 7, in addition shall have more than ten full-time news editors, of whom more than five shall have more than three years’ experience working in news and information entities.

The organization that applies to establish an Internet news and information services entity prescribed by the above clause shall be a lawfully established legal entity engaging in Internet news and information services for more than two years and it shall not have violated any of the laws, rules, and regulations on Internet news and information services in the last two years; the applying organization shall be an enterprise legal person and it shall have a minimum of RMB 10,000,000 in registered capital.

[ … ]

 

These regulations say nothing at all about individuals. But now for the first time, using WeChat’s public accounts, individual citizen journalists are challenging the Internet censorship regime. Under the new policies, is it legal for public accounts created by individuals to offer analysis of current events? If so, to whom should they apply for “Internet news service qualifications”? What conditions do they need to meet in order to apply? What’s the procedure? And what criteria will be used to grant or deny them “qualifications”?

Article 7 of the WeChat Articles also stipulates:

Instant messaging service users opening public accounts in order to engage in public information service activities shall undergo examination and verification by the instant messaging service provider. The instant messaging service provider must file this information in a categorized manner with the controlling department for Internet information and content.

 

This article clearly places an obligation on the shoulders of service providers to maintain whitelists of allowed users.

So if an individual user wants to apply for a public account with an instant messaging service provider, what’s the procedure? How long does the “examination and verification” process take? If public account holders who haven’t published information about current affairs before want to start doing it now, is there a supplementary procedure? All of these are gray areas in the new regulations.

In the past, when gray areas existed in rules governing Internet use, service providers and users were left to interpret them themselves and act accordingly. This system of dual responsibility on the part of websites and website users will, almost certainly, influence the way WeChat is regulated, although right now the regulations don’t explicitly pertain to individual users and groups. One likely consequence, however, is that the new regulations will pose a challenge to the internationalization of the WeChat platform.

6. The vetting process is central to “qualifications.”

In the new regulations, “qualifications” take the form of a permit. But a permit is just a legal concept; what’s most important is the vetting process used to grant the permit. The requirement that public account owners obtain “Internet news service qualifications” and that current affairs reporting be restricted to news organizations means that the regulation of WeChat will proceed along established courses, which is to say that the Chinese Internet economy is doomed to be hampered by bureaucratic red tape. The Internet used to be the least regulated sector of the economy, which created an explosion of entrepreneurship. But now “Internet permits” are setting up economic roadblocks, which suck up time and effort on the part of business owners and, when quotas are used, often encourage rent-seeking behavior. Permits increase costs for businesses, and the governmental institutions tasked with administering them generally make a mess of things, or else do nothing at all.

7. A new style of regulation for new forms of content.

Actually, a system of permits like these was already in place before the Internet came along. In China, during the pre-Internet era, channels for speech and ex pression were controlled using a handful of “floodgates,” each of them manned by a particular controlling department. The book publishing, newspaper, magazine, recording, and printing industries were managed by the General Administration of Press and Publication. The radio and television industries were supervised by the State Administration of Radio, Film, and Television. The Ministry of Culture oversaw literature and art and the development of the cultural marketplace, and the Ministry of Public Security was in charge of combatting pornography and “unhealthy” information. The National Copyright Administration was responsible for managing and protecting copyrights.

At first the government saw online information services as no different from traditional activities, just carried out in a new medium. But as the Internet underwent explosive growth, every individual could potentially become a publisher, a press office, a radio station, or a TV station, and the state began to deepen and broaden the system of permits it used to control the flow of information. For example, in early 2008 the State Administration of Radio, Film, and Television issued a circular decreeing that beginning on January 31 of that year, not only would any company providing online video broadcasting services be required to obtain an “Online Film Broadcasting License,” but all companies offering such services must be state-funded enterprises or companies in which state-funded enterprises owned a controlling share.

Many new kinds of media could not be mapped neatly onto the existing agencies, but the government persisted in trying to regulate them according to the old categories. Not only was the controlling department for each kind of media required to manage new content using the old system of permits, but special regulations were issued targeting new online news aggregators, like the “Administration of Internet Electronic Messaging Services Provisions,” “Several Provisions of the Beijing Municipality on the Administration and Development of Microblogging in Beijing,” and most recently the WeChat Articles.

 

8. A unified administration.

The responsibilities of the various departments often overlapped, and it was inevitable that squabbles would arise as departments jockeyed for power, competing to extend their own areas of jurisdiction. When the Central Internet Security and Informatization Leading Group was established on Feburary 27, 2014, it was a sign that the government was moving toward a unified administration for online information management, in hopes of cutting down the number of cooks in the kitchen. The State Internet Information Office (SIIO) was originally part of the State Council Information Office, but it later split off and became the overarching organization responsible for regulating the Internet. It was the SIIO that issued the WeChat Articles, and from now on it’s likely that many of China’s Internet regulations will bear the stamp of this organization.

9. The lack of a transparent legislative procedure.

The SIIO’s new regulations share a key trait with other Chinese legislation regarding the Internet, which is that they were made by governmental departments, not legislative bodies. In general, the administrative regulations of the State Council, the departmental regulations issued by its various departments, and the ordinances passed by provincial and city governments all fall under the umbrella term of “executive legislation.” Though originating at different levels of government, they are all considered “laws.” In addition, there is another category, “Other Normative Documents,” which are not considered laws but which exist in great numbers and affect legal practice. It is generally these “lower-level” regulations, which are more concrete and targeted, that the “front line” administrative organs rely on in their enforcement of laws. And it is to these regulations that private parties usually look for guidance on what is considered legal. The WeChat Articles fall under this category; the process by which they were passed was not transparent.

10. The scope of the law is key.

When the new regulations are put into practice they will probably be selectively enforced and frequently flouted, because they are so incomplete. The problem with the Chinese government’s Internet regulations is that they are often ambiguous and too broad in scope, which turns ordinary people involved in everyday activities into potential targets for attack. The ambiguous nature of these regulations gives Internet monitors a great deal of latitude when it comes to enforcing the law. Monitoring can be easily taken to extremes, like when the city of Zhaoqing in Guangdong province recently ordered all owners of WeChat public accounts to register in person at the Public Security Bureau.

 

As I’ve noted before, though we have a vast array of rules governing Internet use, their names almost never include the word “law.” Most are simply regulations, and many are “provisional,” even though some have been in place for many years. This is one area where Chinese Internet law remains inadequate. And of course, in reality it doesn’t matter what the law is called; what matters is how effective it is, and how it’s enforced.

Widely disregarded, selectively enforced laws are damaging to the legal climate, devaluing the rule of law. To paraphrase Montesquieu, there are two kinds of social ills: when people don’t respect the law, and when the law itself encourages bad behavior. The latter is an incurable curse, because the medicine itself is what is causing the problem.

* * *

In conclusion, I’d like to tell a personal anecdote that illuminates the contradictions inherent in the new instant messaging regulations.

The day after the regulations came out, I posted an essay on my public WeChat account entitled “How to Read the WeChat Articles,” criticizing the new regulations for their ambiguity and for the opacity of the legislative process. Someone from the Public Security Bureau read it and posted a reply, saying, “Hu Yong’s article violates the new regulations.”

Sounds ridiculous, right? But strictly speaking, what the public security official said was true. My article counts as “reporting on current events,” since the 2005 Provisions clearly state that analysis of the news falls under this category. As an individual WeChat user, if I want to offer “public information services” I ought to undergo “examination and verification” first. And the regulations define public information services extremely broadly, as “distributing information to the public through public accounts on instant messaging tools and other means.” In other words, if I, as an ordinary citizen interested in public affairs, want to write comments about current affairs on my public WeChat account, I need proper qualifications and official approval; otherwise, I’m breaking the law. This reminded me of a question I heard posed by the head of a media organization: “The new regulations issued by the SIIO say that you need a permit to reprint anything related to current events. Now, I feel like I owe it to my fellow citizens to let them know about this groundbreaking new legislation. Technically, I can’t, because I need a permit. But how else am I going to share the news with my friends who don’t read Xinhua? Don’t blame me if they go on unwittingly breaking the law.”

The “channels-and-floodgates” method of controlling the media still works fine for the few remaining traditional media sources. But applying it to the million outlets of the grassroots media is like trying to close a door with a sieve. Furthermore, if people with WeChat public accounts are forbidden from publishing commentary on current affairs, then what about Weibo? Will that be forbidden too? Will the voices of the blogosphere be silenced?

 

Translated by Austin Woerner.

 

http://www.chinafile.com/reporting-opinion/viewpoint/china-tough-new-internet-rules-explained

 

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