I've just finished a rough translation of an opinion piece by Hu Yong (胡泳)that appeared in this morning's Southern Metropolis News in which he criticizes the use of criminal defamation charges to punish individuals who posted critical comments against local government officials' handling of the Yan Xiaoling case.
Defamation Can No Longer Be
Used to Restrict Netizen Speech
Used to Restrict Netizen Speech
The public security bureau in Mawei District, Fuzhou, recently detained Guo Baofeng and several other netizens. The lawyer for these detained netizens says that they were detained for posting or re-posting items on the Internet about the “Yan Xiaoling case” in which [Yan was] “brutally gang-raped to death by eight people.” Police have given the reason as “suspected defamation”; when the lawyer requested to meet with the detained individuals, police refused on the grounds that the case “involved state secrets. (See the July 17 Xin Kuai Bao report.)
These detentions sound quite familiar to us. Like the cases of Wang Shuai, Wu Baoquan, and others, they form a part of a long, long list of names of those bloggers and netizens who have been detained or convicted by organs of public authority for exposing the deeds of local governments. There are two basic elements of most of these types of cases. One is the fervor with which ordinary people use the Internet and employ text or video to expose and broadcast local injustice on popular Internet forums or blogs. The second is the habitual way that certain local governments, faced with suspicion or criticism, use the crime of defamation as a weapon of public power to attack private rights and try to restrict people's expression on the Internet.
Police have not said yet who the victim of defamation is [in the case of the] netizens detained this time in Mawei. But according to the provisions of Article 246 of the Criminal Law, “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.” One should notice that this article is placed under Chapter IV of the Criminal Law, entitled “Crimes of Infringing upon Citizens' Rights of the Person and Democratic Rights.” That is to say that the crime of defamation is for serious acts of intentionally inventing and spreading false stories to damage a person's character or destroy their reputation. The object of this criminal infringement must be a citizen and not the reputation of a business, government organ, or other organization. This is why defamation cases typically can only be brought following charges from the victim and are only prosecuted when the victim files suit [directly] with the court. Only in defamation cases where there is serious threat to social order and national interest can the public security apparatus mobilize public authority to pursue criminal responsibility.
Among the posts regarding the “Yan Xiaoling case,” a few individual officials from the public security bureau and procuratorate have been mentioned by name. Could it be simply because of their official position that [the case] has become connected with social order and national interest? Moreover, the day after the posts appeared the relevant government agencies in Fuzhou made public statements denying the claims made in the posts. Even if the items by the posters and re-posters created a negative impression of the government agencies concerned, that doesn't necessarily make it unlawful or illegal acts that necessitate mobilizing the coercive power of the state for punishment. If criticism of public officials' actions [in carrying out] public authority can be punished as criminal defamation, the inevitable result is that no one will dare to carry out oversight of public authority and there will be no way to safeguard the highest value of citizens' freedom of speech.
Freedom of speech naturally includes the freedom to express mistaken ideas, and it is especially the freedom to question authority. This requires public officials who face criticism or even fabrications that exaggerate the truth to not automatically invoke defamation on the grounds of their rights of reputation or privacy—much less use the state's apparatus of violence to satisfy their own personal interests. Yet one after another, there have been cases [of individuals who] have been convicted for sending text messages or posting items on the Internet, many times with senior local officials availing themselves of the resources of public authority they have at hand and habitually attacking all criticism of their policies as if it were damage to their personal reputations—even not hesitating to rely on personal retaliation and stigma to clamp down on speech, thereby creating a society and environment for opinion in which everyone feels at risk.
In the situation in Mawei, not only has defamation been used as a catch-all, vague charge, but the authorities concerned have even resorted to using a new magic weapon—the use of “state secrets” to answer efforts by netizens and reporters who seek to understand the truth of the situation. To carry out an investigation for public prosecution of the “defamation” of a local official is already a mistake; to completely block the public and lawyers from understanding and investigating this case of public prosecution on the grounds that it “involves state secrets” only compounds the error. Can those who hold public power really use “defamation” and “state secrets” so arbitrarily to muzzle people's voices? There's no way to explain the logic of these parties: we can only conclude that their overbearing rule originates in their belief that they personally represent the authority of the law and administration and that any oversight and criticism is a threat to this authority. If this kind of scary logic is allowed to spread further, a malignant tumor will spread through local governance.
A netizen should both enjoy the freedom of speech protected by Article 35 of the constitution and rely on Article 41, [which gives] the right to criticize and make suggestions or even make complaints and charges against, or exposures of, violation of the law or dereliction of duty by any state functionary. There can be no arbitrary deprivation of 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 the past, present, or future, and we create original posts and re-post some items. As members of the public, we have the right to question—including parties concerned and the police. There are many things about which we don't have all the facts, so we must try to understand. You can explain, you can cross-examine, but you cannot break the law in the process of enforcing the law. Who gives you the right to use public authority to turn civil 'defamation' into criminal prosecution? Who is the victim of defamation here? If being concerned is a crime, then we are all guilty of this impardonable crime.”