17 September 2009

Final Update on the Wu Baoquan Defamation Case

I've written before about Wu Baoquan, one of a series of questionable criminal defamation cases that were reported on earlier this year in the Chinese media. In this post, I expressed hope that the court would review whether the defamation charge was applied properly, given that a public prosecution for defamation (as opposed to charges brought by the aggrieved party) is only supposed to be pursued when there is a serious threat to social stability or national interest. I question whether that threshold was reached in this case, but according to this update from Southern Metropolis News today (translated by the EastSouthWestNorth blog here), the court seems merely to have accepted the claim of serious threat to social stability, rather than examine it more closely. A missed opportunity to take a stand on proper legal procedure, but I guess I shouldn't be too surprised.

Wu decided not to pursue any more appeals, which makes sense given the number of times he's been found guilty so far and the fact that he's due for release (after credit for time served in detention) in just over a month.

UPDATE: I just realized that the ESWN post above left out the final paragraph of the original story, which to me is crucial:

"The handling of this case was seriously in violation of the law," said Liu Xiaoyuan, a lawyer with the Qijian Law Firm in Beijing. If Wu's [actions] truly constituted defamation, the aggrieved party should have filed suit in court himself. One cannot simply believe that, because the party affected by the "defamation" is an official, that [the speech] therefore disrupts social order and thus treat it as a case for public prosecution. This is a clear abuse of power.

05 September 2009

A Dissenting View on Internet "Rumors"

I'm not prone to spend time translating items whose premise I disagree with, especially on a Friday night. But the following opinion piece, which appeared in Thursday's Beijing Daily (a paper with a reputation for taking hard-line "leftist" positions) struck a bit of a nerve.

A lot of people have now read the translation I did last week of Hu Yong's piece on Xiong Zhongjun's 10-day detention for items he posted online suggesting that law-enforcement authorities in Hangzhou had allowed the perpetrator of a notorious traffic accident to go free and let a "surrogate" stand in for him at trial. Hu (and several other commentators) have been questioning whether Xiong's statements—wrong and misleading though they may have been—should have been punished with jail time for "disrupting public order."

As the collection of posts on my blog can attest, the subject of how laws and regulations are being used (and misused) in China to constrain speech online is a subject I find quite interesting. So, it was natural that I entered into a discussion on this subject with an acquaintance from the mainland the other night over dinner.

This individual, who I would expect to carry the Party's water enthusiastically, started off with exactly the same argument that is the core of the piece below: that China has freedom of speech, but that free speech is not absolute. He then proceeded to raise a number of examples of speech that could have serious consequences for stability—such as rumors about poisoned water or Uyghur attacks on Han.

But he (and the article below) really avoided what to me is the central question here: what serious social consequences does raising suspicions about the credibility of government agencies really have? It seems to me that the harm is simply assumed, and it betrays the lack of self-confidence that the author of the piece below suggests is necessary. In a society that for so long has used the media as a tool to shape public opinion, the possibility for free Internet speech to "mislead" public opinion is simply too scary to behold. So, it's okay to have critical views, but the government won't provide space to air them publicly, lest they contaminate others'

When my dinner companion said for the n-th time that "Xiong Zhongjun's attacks on the fairness of Hangzhou's court caused people to doubt China's legal system, and this can't be tolerated," I couldn't help but ask in return, "Don't posts like Xiong's get written (and attract attention) precisely because many people already question the fairness and credibility of China's legal system?" I didn't receive a real response to this question, and the matter had to be left as one of those unresolvable differences between "you foreigners" and "we Chinese."

This debate—which, after all, is taking place inside China, too—between those who support freer online speech and those who maintain that restrictions are necessary to maintain stability strikes me as being a lot like other "discussions" these days (and not just in China)—they're more like two sides talking past each other, entrenched in their positions, and not really considering the arguments made by the other side. How any progress develops from this state of affairs is beyond me.

Anyway, on to the translation:

Detention of the Poster in the "Hu Bin Surro-gate": Online Speech Freedom Not Absolute
Zong Yuan

Xiong Zhongjun, who used the Internet to fabricate and spread the rumor that Hu Bin, the defendant in the "May 7" traffic accident case in Hangzhou was a "surrogate," was recently punished with a 10-day administrative detention.

Prior to this Xiong Zhongjun, using the name "Liu Yiming," posted more than 10 items on the Internet, claiming that the Hu Bin facing judicial punishment was a surrogate and presenting a large amount of "evidence" as confirmation—which led many netizens to question the credibility of the judicial organs. Police in Xiong's hometown of Ezhou, Hubei, charged that his "spreading rumors" led netizens to harbor suspicions and misled public opinion. He disrupted public order and violated the Public-Order Administration Punishment Law, so [police] decided to punish him with administrative detention.

Some people support this punishment, seeing it as just desserts for spreading rumors; others harbor doubts, saying this will lead to criminalizing speech and threats to citizens' freedom of speech. So how should we view this?

His "suspicious" article not different opinion
Contains large amount of speculative and inflammatory language

Article 25 of the Public-Order Management Punishment Law states: "The following acts are subject to between five and 10 days' detention and may be accompanied by a maximum 500 yuan fine; if the circumstances are minor, detention of five days or less or less than 500 yuan may be imposed: (1) spreading rumors; falsely reporting danger, epidemic, or alarm; or intentionally disrupting public order by other means . . . ." Is what Xiong Zhongjun did spreading rumors?

The prerequisite for spreading rumors is fabricating facts, making up the truth, and then broadcasting it. Some believe that Xiong Zhongjun did not spread rumors and that it was only based on [an examination of] news photos of Hu Bin taken on different days from which he judged that the Hu Bin who appeared in court was not the driver of the car on that day because there were many differences in the face, expression, and physical characteristics in the two photos. There's nothing wrong with this sort of suspicion, as all citizens have the right to express their own views and opinons. Even though his his view is mistaken, that doesn't constitute the "fabricating facts and making up the truth" that is spreading rumors.

To be sure, if Xiong Zhongjun had only expressed his own contrary opinion, then no matter how many mistaken things he said he should not be punished for it. But having read what Xiong Zhongjun wrote online, I've found that this is not what happened.

In his posts, Xiong Zhongjun included a great deal of speculative and inflammatory language, such as: "Hu Bin's family is, unsurprisingly, wealthy, brash, and well-connected, and after the drag-racing case occurred all in Hangzhou's law enforcement agencies were hell-bent on tilting the scales of the law in their favor," "When interviewed, employees of the [Hangzhou Xihu District] court shamelessly said that statements of suspicion were 'baseless,'" "The Hangzhou judicial agencies can really be called master thespians, but it's too bad their performance isn't seamless," and "[The Hangzhou judicial agencies] can only keep lying to the end in order to protect their official posts. They would never admit that 'the leopard has turned into a prince.'" I'm afraid it's hard to say these "statements" are rational suspicions.

Spreading rumors about individuals might constitute defamation

Complaints about the government that don't affect stability shouldn't be punished

Imagine for a moment that I, based on hearsay, "discovered" that a co-worker was having an affair and, claiming "iron-clad evidence," went around announcing that "so-and-so may have a mistress" and "so-and-so's life is indiscreet"—but this co-worker actually wasn't doing any of the deviant things that I suspected. I ask you, wouldn't my behavior qualify as "spreading rumors"? The answer is certainly, and that co-worker most likely would bring defamation charges against me.

Xiong Zhongjun has a right to air any suspicion he may have about the case, but if he engages in improper conjecture and recklessly spreads unsubstantiated hearsay, it could threaten social stability by misleading social opinion.

I also believe that Xiong Zhongjun truly fabricated and spread rumors, however his actions were not yet punishable. If Xiong Zhongjun posted an article online that hurled abuse at an individual citizen, that would clearly be an act of defamation that should be punished for perhaps violating the criminal law and at least violating the Public-Order Administration Punishment Law. But the target of Xiong Zhongjun's accusations and attacks was not an individual, but rather the relevant judicial agencies. So this ought to be treated differently.

In everyday life, ordinary people may occasionally complain or express dissatisfaction about government agencies because of some lack of trust or misunderstanding—this is understandable. Being lenient toward people's various criticisms of government agencies is a sign of society's progress and an expression of the government's self-confidence and diligence. What's wrong with ordinary people criticizing or rebuking the government a bit, so long as it doesn't lead to serious consequences or threaten social stability. But if it really leads to chaotic consequences, that's another story.

Following rumor-filled posts makes people stop and think

Online freedom of speech is not absolute

It's normal that Hu Bin's appearance would change from the time he was arrested to the time he faced trial. Way back during the Warring States period, there was the story of Wu Zixu, whose hair turned white overnight after his father and brother were murdered. After being jailed for several months, it's no wonder that Hu Bin's appearance would change. As for the "points of doubt" in those few news photos and videos, these are all created by [different] photo resolutions, shooting angles, and lighting directions. Xiong Zhongjun's articles lacked proof and were full of flaws, conjecture, and speculation. Yet it was precisely because of these vulnerable views that attracted many netizen followers. This, I'm afraid, is an issue more worth thinking about than Xiong Zhongjun's detention.

On today's Internet, with its high degree of information proliferation, only those maverick articles can attract netizens' attentions and only "startling language" attracts the highest number of hits. This is precisely why Xiong Zhongjun's posts on the Hu Bin surrogate [issue] were able to "stand out from the crowd" and receive notice. For netizens, online commentary is largely a form of entertainment consumption, and they mostly pay attention to whose views have the most impact, rather than whose argument is the tightest. Thus, many netizens gave their approval to Xiong Zhongjun's articles without thinking.

Xiong Zhongjun's detention reminds netizens that in this open Internet space, speech is free but this freedom is not absolute. The openness of the Internet determines the openness of Internet speech, and expressing one's views is not the same as complaining at home or having a heart-to-heart chat with friends. One must pay attention to the possible effect [of speech] on society, try hard to be reasoned, and avoid infringing on the interests of others or society.

03 September 2009

An Update on Gao Zhisheng

Since disappearing in February, there have been a lot of rumors about what might have happened to the crusading Chinese rights lawyer, Gao Zhisheng. Given that Gao was allegedly treated savagely during a previous disappearance, the more time passed, the more ominous the predictions of his fate became, with some even suggesting that Gao may have been killed.

Now, Beijing legal scholar and rights activist Teng Biao is reporting via his Twitter feed that Gao was briefly in contact with family members as recently as late July. If this news is true, it should allay some of the worst fears about Gao's well-being, but it leaves unanswered serious questions about why he has apparently been deprived of his liberties and under whose authority.

Teng's message, translated into English below:
Is Gao Zhisheng dead? In May and June, quite a few people were privately spreading the word [about this possibility]. In June, Gao's brother went to Beijing to contact the police, and police told him he'd hear something by the end of the month. In July, Gao made a brief telephone call to his relatives in Shaanxi, saying that he was okay. Since then, there has been no further news. Actually, "okay" means "not okay." It seems that Old Gao's not dead, but for the past seven months since 4 February, no one's seen hide nor hair of him.