Talk just became a lot less cheap: on China’s new rules for online expression

As indicated earlier on this blog, the campaign against the spread of online rumours and false information continues to escalate. In the wake of a swathe of articles, amongst others in Red Flag Magazine, earlier announcements by the State Internet Information Office and the prosecution of a number of news websites, the Supreme People’s Court and Supreme People’s Procuratorate have introduced a judicial interpretation (original/our translation) that expands criminal liability to include a number of online activities. These are the main points:

• Clear definitions are provided for the online activities that are necessary to fulfil the chapeau of the Article 246 Criminal Law (CL) definition of concocting facts to defame others, which, under “grave circumstances”, may lead to a maximum of three years’ imprisonment, criminal detention, surveillance or loss of political rights. In order to meet the criteria for “grave circumstances”, such information must either be visited 5000 times or retweeted 500 times or result in the injured party suffering mental disorder, committing self-harm or suicide, or the defaming party must have already been subject to administrative punishment for defamation in the two preceding years.
• Criminal defamation cases are only handled upon request of an aggrieved party, except where social order or national interests are gravely harmed. To that end, the Interpretation provides that defamatory information also falls under the scope of Article 246 where it triggers mass incidents, upsets of social orders, ethnic or religious clashes, causes ‘vile’ social or international influence, or harms the national image and interest.
• The abovementioned liability is also extended to accumulated cases of online information that had not been subject to punishment, and that in combination meet the quantitative thresholds for liability outlined above.
• Insults and intimidation, as well as the intentional fabrication and online dissemination of false information fall under the provisions of Article 293 CL in cases where this results in the upset of social order. This carries a maximum prison sentence of five years. Threatening and coercing people through disseminating or deleting online information, or processing it in other manners, will be punishable under Article 274 CL with up to ten years of imprisonment, depending on the monetary amounts involved.
• The provision of commercial information deletion services, as well as the provision of information dissemination services were it is clearly known that the information concerned is false, will fall under “illegal business activities’ as outlined in Article 225(4) CL if certain quantitative minimum thresholds are met, and these services distort market order. This can lead, depending on the monetary amounts involved, to fixed-term prison sentences of five years minimum and fines that are multiples of the unlawful income.
• In cases where such acts are simultaneously covered by a number of specific other articles of the Criminal Law, involving incitement to violence, wilful dissemination of false and terror information and harm to commercial reputation, the article that carries the heaviest sentence must be imposed.

This interpretation seems to be a comprehensive response against a number of online phenomena that have received considerable attention in recent times. The provisions of suicide look as if they are directly inspired by the hubbub around the suicide of Jiang Yan, whose husband was involved in a love affair, and was subsequently hounded into hiding by the human flesh search engine. The provisions on deletion and dissemination of information echo recent stories about the “black PR” industry. The overriding concern, the maintenance of harmony and the “correct public opinion orientation” in the online sphere, has been reiterated in numerous speeches and policy documents in recent years.

In legal terms, it remains to be seen how these rules are to be implemented. Little information is given, for example, on evidentiary matters and the content of specific standards. The perennial question is, of course, how the truth or untruth of a factual assertion is to be established. Equally, doctrines on social order and national interests remain underdeveloped, it is not clear how Chinese law demarcates factual assertions and expressions of opinion. It is also not clear how often these cases will be prosecuted, as the scope of online activity is such that prioritization is inevitable.

But in political terms, the legal niceties do not matter that much. For quite some time now, official voices have stated increasingly loudly that social media users must “take responsibility” for the consequences of the information they post online. Of course, what will happen with information once it is posted, is utterly unpredictable. In that sense, the retweeting threshold seems to be intended to generate especially chilling effects on undesired online expressions. In that sense, the number of prosecutions does not even have to be that high for the measures to be successful. As a “fleet in being”, this range of measures does not need to be applied often to be a fearsome deterrent. In fact, it may be desirable, from the regime’s point of view, for enforcement to be unpredictable, as Stern and Hassid have argued with relation to traditional media.

Furthermore, these rules will be enforced by local judges, with all the concomitant issues of local protectionism. According to the People’s Daily, an SPP official claimed that the role of online media in exposing official corruption remains important, and that these cases will not be prosecuted for defamation if some of the details are incorrect. However, as judges are appointed and evaluated locally, the risk is that these new rules provide increased powers for local officials to go after troublemakers.

One last question is that of liability for foreigners and jurisdiction more broadly. What would happen, for example, if a non-Chinese national abroad posts information on Chinese-owned online platforms that result in one of the situations outlined in the Interpretation? Would this person risk being arrested in Terminal 3, for example? While such possibilities are mitigated, to some extent, by the limited interaction between the Chinese and foreign Internet, they would not be beyond the imagination.