· HU YONG
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 on
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:
Who can publish or reprint news about current
events, who is on
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 on
Actually, the 2005 “Provisions on the Administration of Internet News and Information Services” include a detailed description of what constitutes “current events reporting”:
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 on
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 imp
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 on
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:
What exactly are “Internet news service qualifications”? Articles 5, 7, and 8 of the 2005 provisions define them explicitly:
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:
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. On
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
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 on
Many new kinds of media could not be mapped neatly on
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 on
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 on
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 beha
* * *
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?