Yuanyuan Dong, a lecturer at the School of Languages and Communications Studies at Beijing Jiaotong University, discusses issues with China’s September 2013 legislation which permitted imprisonment for slanderous material on microblogs shared at least 500 times or viewed 5,000 times.
Microblogging has become increasingly popular in China, and the main channel for Chinese netizens to collect and share information. By the end of October 2013, China’s microblogging population reached 530 million people. Realizing microblogging’s enormous social influence, the Chinese government has begun to exert gradual management and supervision of speech on micro-blogging platforms.
On September 9, 2013, building on existing online rumor laws, the Supreme People’s Court of PRC and the Supreme People’s Procuratorate of PRC jointly announced “The Interpretation of Issues about Applicable Laws Dealing with Criminal Cases of Using Information Networks to Slander,” (this legislation shall be henceforth referred to as the Interpretation). The main clause of this Explanation provides supplemental provisions to Article 246 of The Criminal Law of the People’s Republic of China, which states that:
“Whoever, by violence or other methods, publicly humiliates another person or invent stories to defame him, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, public surveillance or deprivation of political rights.”
In the 2013 Interpretation, if “serious circumstances” are found, the sentence, as outlined in Article 246, shall be applied if the defamation and slandering online was:
- “clicked or viewed at least 5000 times, or… forwarded at least 500 times,”
- caused serious consequence to the victim,
- the perpetrator has faced previous penalties for defamation within two years of the new offense.
There are huge flaws in with this new Interpretation and the application of Article 246 to cyberspace.
According to the Law on Legislation of the People’s Republic of China, Article 8, criminal offenses and their punishment shall only be governed and implemented by law. In the 2013 Interpretation, the method through which the judicial authority defines a crime (through judicial interpretation) is beyond the legislative power established by the Law on Legislation. The Interpretation also does not specify what fabricating facts exactly entails, giving judges a great deal of discretion when applying the law. For example, if 30 people died in a fatal traffic accident and the information editor has mistakenly written as 29 or 31, whether the editor’s mistake can be characterized as “fabricating facts” depends on the judge.
The Interpretation’s ascription of 500 forwards and 5000 clicks or browses as the legal tipping point appears arbitrary. The judiciary has failed to explain why the numbers 500 and 5000 are significant, which has caused controversy. Furthermore these numbers were not, and when applied to cases are not, determined through investigation and study, which violates the scientific and strict requirements of legislation.
Internet rumors can certainly cause panic, especially in cases where rumors spread false information about public safety. In an information era full of “We-Media,” content authors, and those who share content, should be able to, or at least try to, recognize and identify rumors and false information. However, laws should act as tools to maintain social justice, not erode citizen rights in the name of security. Although the purpose of the Interpretation is to set legal boundaries for freedom of speech, such legislation often instead suppresses the freedom of speech. Indeed after the Interpretation’s enactment, there have been a number of situations in which the law enforcement transcended legal power.
In an era where civic awareness is surging and democratic conceptions are flourishing, legislators should implement laws with rational means and law-executors should enforce laws in a reasonable manner. This will help facilitate the union of maintaining social order and respecting citizen’s rights.