Currently, China has an estimated 70 million bloggers posting on a wide range of subjects. In January, the country’s number of internet users was estimated at 298 million, the most of any nation in the world. Unfortunately, China’s internet censorship is one of the most pervasive and sophisticated in the world. Bloggers’ freedom of expression has been stifled by government policies and legislation. For instance, a State Council Order passed in September 2000 created the first content restrictions for internet service providers. Among other things, the Order allows only licensed print publishers to post news online. Further, the Order stipulates that “content providers are responsible for ensuring the legality of any information disseminated through their services.” However, a Beijing judge recently ruled that an internet service provider, Xin Net, wrongfully shutdown a Chinese government critic’s website.
In the May 20 ruling, the Daxing District Court found that Xin Net failed to provide proof for its claim that the blog written by the critic, Hu Xingdou, contained illegal content pursuant to the State Council Order. Further, the court found that the service provider failed to provide proof that it asked the critic, pursuant to the terms of their service agreement, to remove the incriminating content before it removed his site. As a result, the court ordered Xin Net to return the fees Hu Xingdou had paid for two years of services.
Some have argued that relative to other civil legal systems, Chinese judicial decisions carry more precedential value. This is because Chinese laws are generally drafted for a specific topic or location, creating a piecemeal legal infrastructure leading to situations where laws are missing, contradictory or confusing. According to this view, the decision could have the effect of lessening the stringent restrictions on online content. However, others have argued that since the judiciary is not independent from political pressure, decisions by judges can be overturned on appeal or in subsequent cases. According to this view, to the extent that the Chinese government desires to restrict online content in the future, the decision could have an insignificant effect on changing online censorship.
Although sufficient time has not passed for the implications of the decision to be realized, the recent (June 4) anniversary of the 1989 Tiananmen Square protests is likely to prompt many posts from bloggers throughout China. As a precaution, on Tuesday a broad range of websites suddenly became unavailable to Chinese internet users. The blocked sites include MSNSpaces, Hotmail, Flickr, YouTube, Twitter and two prominent blog hosting sites known for their liberal content.
Successful legal action in relation to the recently blocked sites could be the next step in reducing online censorship in China. However, unsuccessful legal action, or legal action taken by the Chinese government against bloggers that find a way around the blocked sites could reinforce the already stringent restrictions. Considering the measures the Chinese government has taken to repress the dissemination of information concerning the Tiananmen Square protests in the past, blocked users may not have the courage Hu Xingdou had to bring legal action against their service providers this time around.
One Response
This post touches on several complex issues in regards to Internet censorship in China and the Tiananmen Square protests in 1989.
One interesting angle of analysis is the relation of the courts to the dominant political structure, and if they can truly issue change through legal decisions. It might not be an issue of the decision, but whether the government listens to the rule of law, assuming a Chinese court would rule in favor of critics.
As you have also touched upon, China has one of the most complex monitoring and censoring online systems–in fact YouTube has been off limits for quite some time, way before the nearing of the 20 year Tiananmen anniversary.
However, in some aspects, China’s online censorship policy as it concerns ISPs is not very different from American copyright law.
In the United States, an ISP is responsible for copyright infringement, especially if they are deemed not to cooperate promptly with copyright owners. The Digital Millennium Copyright Act presents limited liability, where ISPs have four safe categories under section 512. Under these ‘umbrellas’ they will not be held legally responsible. These are transitory communication (transmission, routing, providing connection), system caching, storage of information on systems and networks at the request of users, and tools used to locate information on the Internet, such as search engines. To benefit from many of these exceptions, the ISP cannot have knowledge of copyright infringements. On the other hand, if there is an ongoing infringement of copyright law, upon gaining knowledge they must have moved immediately to correct the matter by removing the content. Therefore, unless the ISP falls into one of these ‘safe heavens’ it is open to court action by various copyright holders or third parties. It is true that the threshold for American ISP’s is higher requiring knowledge, while the Chinese State Council Order imputes general responsibility on content providers.
However, how does one establish knowledge? This is a slippery slope, meaning that ISPs will be anxious to reduce their potential legal liability, resulting in unwarranted take downs, much like in China. This can lead to the same result: censorship, albeit for different reasons.
We should not take the tone (even indirectly) that censorship is not an issue for us; an unbalanced copyright law can have the same effect.
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