In December, the Communication University of China organized a seminar to analyze legislative and regulatory evolutions in the media sphere, in which 10 events of particular significance were selected for further analysis. These events include new policy and legislation, such as the Central Committee Decision on cultural policy, but also address the impact of events like the Wenzhou train crash or the handling of certain legal cases on the development of media law. Professor Zheng Ning of the Research Centre for Media Law and Policy was so kind as to send me the report, and allow me to post a translation of it here.
On 22 December, the News Conference and Academic Seminar for the 10 Large Chinese Media Law Events was organized in the general building of the Communication University of China, this activity was organized by the Communication University of China Research Centre for Media Law and Policy , with the assistance of the Beijing Municipal Lawyers Association Media, Press and Publication Law Expert Committee, media experts, scholars and senior personalities from the practice world coming from large and famous universities, scientific research organs, administrative controlling departments, judiciary organs, as well as the media composed a review committee, and selected the 10 large Chinese media law events from 2011. During the news conference and academic seminar, through further deliberation, according to the extent of influence in the construction of a media law system, the 10 large events were put in a sequence. They respectively are: the organization of the 6th Plenum of the 17th Party Conference and its passing important documents on deepening cultural structure reform; the revision of the “Publishing Management Regulations”; the “23 July Yong-Wen Line” Wenzhou train crash; the establishment of the State Internet Information Office; the Baidu Literary Database copyright dispute; the “Some Regulations Concerning Strictly Preventing False News Reports” issued by the General Administration of Press and Publications; the final judgement in the Jinshan v. Zhou Hongyi Weibo case on infringement of the right of reputation; the “Opinions Concerning Further Strengthening Comprehensive Satellite Television Channel Programme Management” (also known as “Entertainment-Limiting Decree) issued by SARFT; the final judgement in the Yao Jiaxin Case; and the case of Ms. Yu v. Sina on closure of a Weibo account in violation of contracts.
This selection was divided into three stages: recommendation, preliminary selection and final selection. During the recommendation phase, the sponsors received 636 media law events in total, mainly coming from the media law event database established by the Communication University of China Media Research Centre for Law and Policy, events collected from all walks of society through networks as well as events recommended by the selection committee. The sponsors screened out 50 candidate events on this bases, and referred them to the Selection Committee for selecting 20 selected events through ballots, afterwards, a selection committee meeting was organized, and an on-line vote was held on the Justice Net, according to the result of expert voting and network voting, the 10 large Chinese media law events from 2011 were finally determined.
During the academic seminar, more than 40 famous experts and academics from more than 10 work units including the Ministry of Industry and Information Technology, the General Administration of Press and Publications, the Beijing Municipal Higher People’s Court, the Chinese Journalist Association, the Beijing Municipal Lawyers’ Association, the Beijing Network Media Association, the Chinese Academy for Social Sciences, Renmin University of China, Qinghua University, Beijing Normal University, Beijing Science and Engineering University, China University of Political Science and Law, Communication University of China, Weiheng Law Firm, etc., conducted brilliant appraisal and ardent discussion revolving around these 10 large events.
1. The organization of the 6th Plenum of the 17th Party Congress and its passing of important documents on deepening cultural structural reform.
Event summary: on 18 October 2011, the Chinese Communist Party organized the 6th Plenum of the 17th Party Congress. The Plenum deliberated and passed the “Chinese Communist Party Decision Concerning Deepening Cultural Structural Reform, and Some Major Questions in Promoting the Grand Flourishing and Grand Development of Socialist Culture”. The Decision clearly elaborated the construction of and moves to how to deepen cultural structural reform and promote the grand development and grand flourishing of Socialist culture.
Reason for selection: This Decision points out the orientation for reform in our country’s cultural sphere under new circumstances. This passing of this Decision has a profound significance for the media, which are an important component part of culture, the improvements to the legal environment to be made in the future, the strengthening of rights protection and the healthy development of the industry.
Appraisal: The director of the Communication University of China Cultural Industry Research Institute, professor Fan Zhou, pointed out that, it can be understood from taking a broad view of the entire document, that the Centre’s legal system construction involving media industries is to be followed with high interest. First, strengthening legal system construction is an urgent need for making cultural undertakings and cultural industries flourish, we should face up to these requirements, and vigorously explore them. Second, following the integration of art with science and technology, the development of many burgeoning industry models is far higher than our legal system’s construction speed, many industry models still lag behind or even are blank spaces in terms of the legal sphere, this also requires us to earnestly consider the topic of how to let legislative work protect and escort the grand development and the grand flourishing of culture. Third, for strengthening legal system construction in the cultural area, we should also vigorously move cultural structural reform and corresponding complementary policy structural reform forward, resolve the questions of supervision and management by many heads and government departments acting on their own.
The director of the Chinese Academy of Social Sciences Legal Studies Department Media and Information Law Research Section, researcher Chen Xinxin is of the opinion that this document has an important influence in legal system construction in the cultural and propaganda sphere. First, legal system construction on the cultural and propaganda sphere should urgently hook up with the core of the grand development and grand flourishing of Socialist culture. Second, legal system construction in the cultural and propaganda sphere, generally speaking, has more development space in comparison with other spheres, and in a number of spheres, legislative lagging and even partial blank spaces still exist in a part of the sphere, which require timely remedy. Third, this document has one very large difference with earlier Party document which is: not only does it stress the development of cultural undertakings and the development of the core value system, it also clearly raises the development of the cultural industries, this requires adjustments to the legal system construction corresponding to standardizing aspects composed of market access, capital, etc. Lastly, this Decision also raised the requirement that supervision and management in the culture and propaganda sphere should be adapted to the times, and especially must be adapted to changes under Internet conditions, this requires us to reform supervision and management methods, and supervision and management systems in the cultural and propaganda sphere. Basically speaking, the grand development and grand flourishing of culture depends on the construction and fostering in this area. We should consider how to effectively guarantee the corresponding lawful rights and interests of persons and work units active in the culture and the propaganda sphere through legal system constructions, indirectly untie creativity, making our nation’s cultural undertaking and cultural industry work units be able to have even stronger creativity and competitiveness.
2. The revision of the “Publishing Management Regulations”
Event summary: On 19 March 2011, State Council Premier Wen Jiabao signed State Council Decree No. 594, and promulgated the newly-revised “Publishing Management Regulations”. The newly revised regulations reflect the new requirements of the times and development. These are concretely reflected in: requiring adaptation to press and publication structural reform and industrial development; requiring the reflection of new technology and new industry model requirement; it has perfected entry systems and supervision and management measures; it has increased relevant supervision and management regulations; it has cancelled some examination and approval items, it has shortened examination and approval time limits; it reforms primary and secondary school textbook publishing and distribution systems; it encourages publications to “march out”, cultural innovation and serving the “three rurals”; it has strengthened administrative law enforcement, and perfected legal responsibility.
Reason for selection: The “Publishing Management Regulations” are an administrative regulation, and have special functions. It has an important influence on defining the position, responsibilities and functions of press and publications, and on our country’s development in the political, economic and cultural area. The newly revised “Publishing Management Regulations” will undoubtedly engender a huge influence on how to even better give rein to the functions of the press and publications area under new circumstances.
Appraisal: Associate Researcher of the General Administration of Press and Publications Policy, Law and Regulation Department Administrative Redress Office Fan Fan pointed out: the revision after ten years of the “Publishing Management Regulations” have characteristics in five aspects: first, it reflects the requirements of press and publications structural reform and industrial development, and the term “press and publications industries” appears in the “Regulations” for the first time, and has put forward different regulations to publishing work unit on the basis of their legal personality of undertaking work unit and enterprise work unit. Second, it has brought policy into law. It has established encouraging clauses for the “three rurals” policy and the “culture marching out” policy. Third, it has reflected the requirements of the network technology revolution, the “Regulations” authorize State Council administrative departments to provide for separate regulations concerning network publishing, adapted to the requirements of this area. Fourth, it adapts to the requirements of administrative publishing management structural reform, a special supervision and management chapter is brought into the “Regulations”, which reflects the new requirements concerning management put forward administrative publishing management structural reform and comprehensive law enforcement. Fifth, it symbolizes the basic completion of the press and publications legal and regulatory system.
Special Ph.D. Supervisor of the Communication University of China and Consultant to the Communication University of China Research Centre for Media Law and Policy, professor Wei Yongzheng is of the opinion that this revision of the “Publishing Management Regulations” contain one matter that deserves attention, which is that the system of sponsoring work units and controlling authorities has not changed, but is even somewhat strengthened. Therefore, our newspaper and periodical sector, after transformation into enterprises, is different from a company established according to the “Company Law”, publishing organs, apart from being supervised by the State Asset Supervision and Administration Commission vis-à-vis assets, are also still directly managed by sponsoring and controlling work units in content and other aspects, because of this, publishing organs still are not a sort of independent market operation subject.
3. The “23 July Yong-Wen Line” Wenzhou train crash
Event summary: on 23 July 2011 at 20.34 in the evening, an accident occurred on the Hangzhou-Shenzhen Line between Yongjia and Wenzhou South, in which train no. D301 from Beijing South to Fuzhou and train no. D3115 from Hangzhou to Fuzhou South collided and detailed, the preliminary examination concluded that the derailment was because the train set of train no. D3115 lost motive power after a lighting strike and stopped, causing the tailgate collision with train no. D301. After the accident occurred, the first information on this event was issued through Weibo, which was an hour earlier than traditional media. Afterwards, numerous netizens conducted live broadcast of course of this event through Weibo, which pushed the handling, investigation and responsibility appointment process of this accident forward.
Reason for selection: The “23 July Yong-Wen Line” Wenzhou train crash is not a media law event per se. But after this accident occurred, the dissemination and reporting of information concerning this event by communications media and new media supported by network and mobile technology have engendered a major influence on our country’s news event reporting structure. Thus, the significance that his event presents concerning how to build media control law systems in the future cannot be neglected.
Appraisal: Qinghua University Press and Broadcast Institute Professor and Ph.D. Supervisor, professor Guo Zhenzhi pointed out: analysing from the point of view of media law, the “23 July Yong-Wen Line” Wenzhou train crash mainly reflects in the sphere of government information openness. Although news workers and surmounted prohibitions in all sorts of ways, Chinese netizens also promoted exposure related to this event through vigorous participation, but from the aspect of implementing information openness law and regulation, social questions are still not enough, the industry and academia should conduct self=criticism, and conduct social criticism of the relevant department. Information openness on one hand means investigation and reporting by news media on information, on the other hand, it refers to disclosing by corresponding organs of information over which they have responsibility, and many problems exist concerning information openness concerning this event within the Ministry of Railways. Furthermore, the investigation panel’s announcement concerning the causes of the accident also reflected two main flaws in information announcement aspects, the first is repeated postponement, the second is the intervention of interested parties leading to a lack of credibility in information openness. Because of this, media law research should direct even more efforts in promoting government information openness.
The researcher of the Renmin University of China News and Social Development Research Centre News Theory and Regulation Research Institute Zhang Wenxiang is of the opinion that: first, the Wenzhou train crash can be considered as a specimen analyzing network-age citizen’s rights to know and government information openness. The implementation situation of our country’s “Government Information Openness Regulations” is not ideal, administrative law scholars think that the crux of our country’s government information openness problem is that internal drivers are insufficient, and there is not enough external pressure. The insufficiency of internal drivers mainly is because a rule of law society must turn from a omnipotent government to a limited government, government power operation must be supervised and limited, but this process certainly will be subject to some resistance and negative treatment; the fact that external pressure is not enough mainly is because in the traditional institutional framework, it was difficult for the masses and traditional media to shape a sort of strong supervision system over government information openness, and the masses lack effective channels to participate in institutional operation. Second, in this event, Weibo has already become a path for information dissemination, expression of thoughts, assembling of the popular will and reflection of popular feelings, and has become a huge popular opinion collection and distribution place and information dissemination platform. The “Weibo Onlookers” has become an important force in promoting government information openness. Our country’s social progress has changed from past media-driven into Weibo-driven, the common masses have given rein to a very large function in public policy and governance processes. Naturally, giving rein to Weibo functions also cannot be separated from joining hands with traditional media and off-line interaction. Traditional media should reconsider: are they only information intermediaries following in the footsteps of Weibo, or do they break through their limits, and give rein to the superiority of their expertise, and give rain to an even larger function in government information openness.
4. The establishment of the State Internet Information Office
Event summary: on 4 May 2011, with the approval of the State Council, our country established the State Internet Information Office. Its main functions include, implementing Internet information dissemination principles and policies and promoting Internet information dissemination legal system construction, guiding, coordinating and supervising relevant departments’ strengthening of Internet information content management, being responsible for examination and approval, and daily supervision and management of the network news sector and other corresponding businesses, being responsible for the planning and construction of focus news websites, organizing and coordinating online propaganda work, investigating and prosecuting websites violating laws and regulations according to the law, guiding relevant departments in supervising telecommunications operation enterprises, access service enterprises, domain name registration management and service organs, etc., doing well basic Internet management work of domain name registration, Internet address assignment, website registration filing and access, etc., within the scope of responsibilities, guiding all localities’ departments related to the Internet and launching their work.
Reason for selection: Facing the tendency of rapid network spreading and accelerating development, hoe to even better standardize network dissemination order is a question requiring urgent resolution. This organ is an organ that specially engages in Internet supervision and management, has resolved to a certain extent the structure of many-headed Internet management, and important step in our country’s strengthening Internet information legal system construction.
Appraisal: Mr. Xu Zhangshuai of the Ministry of Industry and Information technology Legal and Judiciary Office is of the opinion that: the State Internet Information Office’s main duty is to implement Internet information dissemination principles and policies, and to strengthen Internet information content management, the orientation of its main duty is Internet information content supervision and management. Many industry insider analyses are of the opinion that the establishment of the State Internet Information Industry will stimulate that the many-headed management structure of Internet departments all acting on their own will be integrated to some extent. As a matter of fact, the many-headed management structures brought about by burgeoning businesses and blended businesses in the internet area has a certain actual basis and reasonability. Whether or not the Internet Information Office’s establishment can change this sort of phenomenon, is a matter that deserves research and attention. Strengthening Internet management actually requires toe cooperation of all departments, for establishing a sort of coordinating mechanism, one major prerequisite is that the duties of each in Internet supervision and management should be clearly distinguished, avoiding overlap and coincidence of duties. Furthermore, social participation is also necessary, for example by sector association and scientific research institutes, as well as broad user participation. Internet management must also deal with the relationship between management and development.
Honorary chairman of the Beijing Network Media Association Min Dahong pointed out: the State Internet Information Office’s establishment has three significant points: first, the State strengthens mechanism guarantees over virtual society management and raises the management level over virtual society. Second, it is a coordination of the present supervision by many departments in the Internet area, its position will certainly be incessantly strengthened from now on, even more benefitting the coordination of all departments. Third, the State Internet Information Office’s establishment will realize an unified, vertical and high-efficiency Internet management system from the Centre to the localities.
5. The Baidu Literary Database copyright dispute
Event summary: on 15 March 2011, nearly 50 Chinese writers, including Jia Ping’ao, Liu Xinwu, Han Han, etc., jointly signed the “15 March Chinese Writer’s Letter Denouncing Baidu”, stating that the Baidu literary database did not obtain any authorization when recording nearly complete works of the above writers and opening them up free of charge to users, and required Baidu to cease the infringement. Hereafter, it evoked broad discussion within the sector, which reached a high point when Han Han sent an open letter to the Chairman of the Board and CEO of the Baidu Company, Li Yanhong, after which Baidu released information of a reconciliation, and deleted 2.8 million literary works from its literary database, at the same time, a Baidu Literary Database copyright cooperation platform officially went online.
Reason for selection: This matter has engendered great influence on how to coordinate and balance the interests of writers, publishers, copyright companies and network service providers, protecting the rights and interests of writers and stimulating the dissemination of works, and has attracted broad social attention.
Appraisal: Vice-presiding Judge of the Beijing Municipal Higher People’s Court Intellectual Property Rights Chamber, Judge Xiang Xuesong is of the opinion that: in 2011, the Chinese Copyright Law has been implemented for exactly 20 years, this matter both reflects that the path of the Chinese copyright legal system has already stepped into a new development course, and shows that this path is still full of rough patches. First, this matter has also prominently shown that network copyright protection has already become a major area for intellectual property rights protection in the network age, and that in the age of the knowledge economy, it is only possible to gain desirable public praise through respecting knowledge, respecting creation and respecting talent. Second, this matter’s exploration, from a civic point of view, is a lively education on the legal system, and has strengthened citizen’s legal consciousness on copyright protection. Third, this dispute’s emergence causes network copyright research that has been dynamic all along in recent years to arise even more excitedly, evoking legislators, law enforcers as well as experts and scholars to reflect even more deeply on how to balance the interests of rights holders, commercial users and the public, whether or not the so-called safe haven principle can be applied, whether inappropriate commercial models should directly be considered as rights infringement, etc., deep research on these questions inevitably will have a vigorous stimulating function in administrative and judicial intellectual property rights protection, at the same time as promoting theoretical research.
Ms. Yang Yang from the Ministry of Industry and Information Technology Telecommunications Research Department Intellectual Property Rights Centre puts forward: first, this event indicates, a completely new intellectual property rights sharing mechanism should be built, the Baidu Literary Database product undoubtedly is a useful attempt devoted to knowledge sharing and dissemination, but at the same time as disseminating and exchanging knowledge, authors’ original intellectual labour must also be protected, and copyright respected. We expect to see that a common understanding will be reached between Baidu and writers on the questions such as, whether or not the public is permitted to freely download these books, if they cannot download them free of charge, who should actually pay for it, etc. Second, how all sides’ interests should actually be balanced in the network age is an international difficult problem. Although the Baidu copyright cooperation platform provides profit division plans concerning infringing works, which is a small step in moving the course of industrial progress forward, any search engine can integrate these pirating results, providing free reading to authors, because being confronted with the harmful environment of piracy, the way out for digital reading plans for legitimate versions is very difficult at present, and the establishment of a new reading industry chain with digital publications based on legitimate editions should be explored. Third, how to explore rational commercial models. After the Baidu Literary Database case, the entire Internet industry and especially the digital publishing industry will give even more regard to the protection of digital publishing, this dispute’s resolution also reflects the conflict and concert between innovating commercial operation models in a network environment and protecting the interests of copyright holders.
6. The promulgation of the “Some Regulations Concerning Strictly Preventing False News and Reports” by the General Administration of Press and Publications
Event summary: on 19 October 2011, the General Administration of Press and Publications promulgated the “Some Regulations Concerning Strictly Preventing False News and Reports”, these Regulations require press and publications organs to establish and complete internal management system preventing false news, rectification and correction systems, and perfect false and inaccurate reporting responsibility investigation systems. The “Regulations” make clear and concrete provisions concerning the four aspects of “the basic standardization of reporters’ newsgathering”, “the basic duties of news organ management”, “rules on dealing with false reports” and “basic principles for the investigation legal responsibility”.
Reason for selection: Strengthening a sense of responsibility in the media and guaranteeing that “truthfulness” is the base line of media life are values existing in the media. These regulations made by the General Administration of Press and Publications, deeply reveal this issue. At the same time, these regulations’ special influence also lies in evoking people’s thoughts on how it is actually possible to truly and effectively prevent the reporting of false news.
Appraisal: Special Ph.D. Supervisor of the Communication University of China and Consultant to the Communication University of China Research Centre for Media Law and Policy, professor Wei Yongzheng put forward: these regulations don’t fall into the category of law, and also don’t fall into the category of self-discipline, but they belong in the category of discipline implemented by leading departments through intra-organizational coercion. Discipline is a behavioural norm practiced through coercion in hierarchical structures within organizations themselves, and has the characteristics of flexibility, randomness, and a one-way nature. The reason why our media must have a sponsoring work unit and a controlling authority, is that it brings press and publications work units into a uniform structure, which is what we often call “intra-system”. Even though it is against the background of becoming industries, our media also must be under the leadership of one uniform controlling authority, carry forward the main melody, and persist in the correct public opinion orientation, and disseminate the Socialist core value system.
The researcher of the Chinese Journalists’ Association Domestic Rights Defence Service Office, dr. Kan Jingxia is of the opinion that, the legal basis for these Regulations comes from the provisions relating to false reporting in the “Publishing Management Regulations” and the “News Reporter Credentials Management Rules”, it is a normative document of a relatively low legal level, and belongs in the level of law. These Regulations actually contain innovations in two areas, first, they clarified the basic professional standards for news reporting, and have put forward the five basic principles for news reporting completely for the first time, namely truthfulness, accuracy, completeness, objectivity and fairness, and they have for the first time clearly stressed the requirement for precise information sources, clarified that the facts on which news comment is based also must be accurate, and stipulated the scope of content that news organs should verify, organs should not only conduct verification of news threads obtained by their own journalists, but also must conduct verification of information in reprinted contributions, Internet information, and the Regulations stressed that news organs should conduct self-discipline first and foremost. Second, it put forward for the first time that news controlling authorities must strengthen administrative supervision over and strictly investigate and prosecute the sort of acts of “reporting of false facts that damage State interests and the public interest”. These regulations are the reiteration of traditional news reporting norms in the Internet age, and symbolize that traditional mass-dissemination media are recollecting their self-confidence in the “we media” age. They also have two functions, the first is to guide our country’s press and publications sector’s establishment of basic professional norms; second is to provide a basis and reference for dealing with disputes related to false news reporting.
7. The final judgement in the Jinshan v. Zhou Hongyi microblog case on infringement of the right of reputation
Event summary: on 25 August 2011, the Beijing Municipal First Intermediary People’s Court produced the final judgement in the Beijing Jinshan Security Software Company v. Zhou Hongyi case on infringement of the right of reputation, and upheld the first instance judgement of the Beijing Municipality Haidian District People’s Court, which judged that the acts of Zhou Hongyi constitute an infringement of the right of reputation of Jinshan Software Company. On 25 May 2010, the Chairman of the Board of 360 Company, Zhou Hongyi published a series of messages on “Unmasking Jinshan Company” through microblogs on websites such as Sina, Sohu, Neteasy, Tencent, etc., using many works concerning Jinshan with a criticizing flavour and a negative meaning, hence, Jinshan Company filed a lawsuit with the courts, arguing that Zhou Hongyi infringed its right of reputation and commercial reputation.
Reason for selection: This case has enlightened very well, how to exercise freedom of expression and how to disseminate opinions through the media, how network media should act according to the law to stimulate a desirable dissemination order in the age of new media. The plaintiff in this case not only is a market subject having a market competitor relationship, at the same time, the plaintiff is a famous person having masses of “fans” in the network environment, this has further strengthened the level of attention this case received.
Appraisal: Director the Asia-Pacific Network Law Research Centre, Professor Liu Deliang of the Beijing Normal University Law Faculty put forward: freedom of speech is limited, this sort of limits is a basic prerequisite for not infringing the lawful rights and interests of other persons and not harming the public interest. From the back of this case, we should more deeply understand how to prevent the occurrence of acts that infringe rights. Although our present “Tort Liability Law” has provided post-facto relief for rights infringement activities on networks, it lacks prevention mechanisms. It is proposed that network service providers agree upon contractual service relations based on civil law, and network service providers have the power to prohibit netizens to publish this sort of evidently infringing activity, thereby creating the effect of prevention. The sort of activities in which infringement is hard to determine, can be resolved by Article 36 Items 2 and 3 of the “Tort Liability Law”. Furthermore, the judgement considers the particularities of network infringements, that whenever they appear, their extent cannot be forecast, and the consequences are difficult to judge, therefore, on whether or not the compensation mechanisms of tort liability law or post-facto relief mechanisms may consider the particularities of the Internet in the responsibilities and methods of relief, and provides that responsibilities and methods are to be stricter in comparison with infringement activities in traditional media.
Director of the Beijing Municipal Lawyers’ Association Media, Press and Publications Law Expert Committee Ren Liying is of the opinion that: this judicial decision has a positive function in three aspects, first, the judgement determines the nature of microblogs in the judicial sense for the first time, and fully recognized the positive function of microblogs. Second, this judgement has explored the boundaries of freedom of speech in the conflict between freedom of speech and the right of reputation; third, this case shows that the particular characteristics of the status of public figures as well as competitors require that their duty of care in speech must be stronger than that of ordinary citizens, and that toleration of criticism also should be higher than that of ordinary citizens. Naturally, this case also reflects the problems that in the present network infringement sphere, infringement costs being low and rights defence costs are high
8. The “Opinions Concerning Further Strengthening Comprehensive Satellite Television Channel Programme Management” promulgated by SARFT (also known as the “entertainment-limiting decree)
Event summary: in October 2011, SARFT issued the “Opinions Concerning Further Strengthening Comprehensive Satellite Television Channel Programme Management”, this opinion takes effect on 1 January 2012. These “Opinions” have also been called the “entertainment-limiting decree”, its main content is that the 34 comprehensive satellite television channels nationwide must raise their broadcast quantity of news-type programmes, and at the same time implement regulation and control over broadcast of a number of programme categories, in order to prevent excessive entertainmentization and vulgar tendencies, and satisfy the broad audiences’ diversified, multi-level and high-grade viewing requirements. The “Opinions” put forward that, broadcast quantity control is implemented over excessive and overflowing dating and friending, talent competition, emotional story, game competition, comprehensive arts and entertainment programmes, interview and talk-shows, reality shows, etc. with duplicating formats.
Reason for selection: How to implement the social responsibility of television having special dissemination effects and let them serve the public interest is a question that every modern country must earnestly deal with in conducting management over radio and television. The rolling out of “entertainment-limiting decree” is a concrete reflection of this globally widespread method. The special value of the appearance and implementation of these “Opinions” also lies in how to effectively reduce excessive and overflowing vulgar programmes, and has put forward the necessity to earnestly research the question of how to deal well with the relationship between stimulating the broadcast industry’s development for public interest service, and protecting the rights and interests of media. The controversy that has arisen around these questions has had an important significance for stimulating the construction of rule of law in communication media.
Appraisal: Director of the Communication University of China Media Law, Regulation and Policy Centre, professor Li Danlin put forward that: the rolling out of these “Opinions” is aimed at the situation in today’s television, and especially satellite television, of broadcasting excessive and overflowing entertainment programmes, its influence extends into many aspects of the entire Chinese television sector as well as the entire media industry dissemination order. Regarding these Opinions from the viewpoint of global radio and television control systems and standards, its positive meaning is reflected in, first, that the “Opinion” especially stresses that local satellite channels must propagate local achievements and display regional characteristics, this reflected that governmental controlling authorities have produced a number of new flavours in their requirements on television dissemination structures, the requirements on content broadcast by televisions, and has the establishment of value orientations, this also has similarities with “localist principles” in other countries’ radio and television management systems. Second, the “Opinion” requires local satellite stations to expand their broadcast proportions of many kinds of economic, cultural, scientific education, children’s documentary and other programmes, to perfect programme category structure, strive to raise programme quality, this sort of structural requirement on local satellite television broadcast programmes also reflected the principles in ordinary radio and television management systems concerning radio and television requirements, and conforms to the objective of stimulating radio and television to even better give rein to their cultural and social functions, and to have a guiding function. Third, the “Opinions” stress the necessity to give high regard to social audiences’ opinions on and supervision over programme channels, establishing scientific, objective and fair comprehensive programme appraisal systems, prohibit the production of television viewing rate rankings, and prohibit a last-place elimination system purely based on viewing rates. They stressed social supervision and control over radio and television programming, and show that government management departments’ respect for people’s confidence and rationality when acting as the performers of government authority. Naturally the “Opinions” involves major industrial interests, the healthy development of undertakings, and public policies on the people’s rights and interests in receiving information, education and entertainment, how should the rights, interests and value conflicts be balanced and coordinated between them? How to conduct formulation on the basis of scientific legal system procedures, how to scientifically build radio and television programme standard mechanism according to the law, how to guarantee the own rights and interests of the broad radio and television organizations and the corresponding rights and interests of the broad members of society, these questions must be considered and explored even more by us.
Director of the Chinese Academy for Social Sciences Legal Studies Department Media and Information Law Research Institute Chen Xinxin is of the opinion that: this event puts forward some points for our consideration: first, whether we can consider a division between public channels and commercial channel. Second, the “Opinions” adopt broadcast quantity methods to implement management and regulation over news-type programmes, and adopts broadcast interval and duration, and quantitative controls over programmes with a relatively high level of entertainmentization, reflecting that different management methods are adopted over different programme categories, but when adopting quantitative control methods, it must be considered whether or not this may influence the programme selection and production autonomy of broadcast organs, and it is necessary to balance the media’s social responsibilities with media freedom, and balance commercial interest with public interest. Third, how to perfect our content supervision mechanisms, and establish a programme category supervision and management mechanisms with Chinese characteristics. Fourth, it must be explored how to conduct division of work and coordination between the three types of methods in own programme standardization of legal and regulatory systems, sector self-regulation and broadcasting structure, or non-supervision organs run the whole show.
9. The final judgement in the Yao Jiaxin case
Event summary: on 20 May 2011, the Shaanxi Province Higher People’s Court decided to uphold the judgement of the Xi’an Intermediate People’s Court which sentenced Yao Jiaxin to death. Yao Jiaxin ran a car into the victim Zhang Miao on 20 October 2010, killing the victim. After the events occurred, communications media and networks paid extremely close attention to this case, and netizens reacted strongly. On 22 April 2011, the Xi’an Intermediate People’s Court produced a judgement in first instance, sentencing the defendant Yao Jiaxin to death. The defendant did not agree, and put forward an appeal to the Shaanxi Higher People’s Court.
Reason for selection: In this case, the media opinion and netizen’s discussion engendered an influence over the judicial process and the result of the final judgement that should not be overlooked. Because of this, it further evoked inquiries into the relationship between the media and the judiciary, the judiciary is up against having to listen to popular opinion but being independent from public opinion, this case is a model of this double task for the judiciary, which has become especially prominent in the network age.
Appraisal: Executive Director of the China University of Politics and Law Communications Law Research Centre and Legal Consultant of China National Radio, ms. Xu Xun is of the opinion that: this case is to be evaluated more from the angle of the relationship between the media and the judiciary. Under the Chinese national conditions, the relationship between the media and the judiciary is far from being an easily generalizable issue of “conflict and balance between the freedom of expression and fair trials”, but seems particularly complex in China in the network age. In the network age, what is called the relationship between the media and the judiciary has already shifted viewpoints, and has become the relationship between public opinion and the courts or even between the parties and the courts, or it is the relationship between the parties, that is to say that there is one battlefield in the courtroom, and a battlefield in public opinion. When we rethink the effect of Internet public opinions on trials, we cannot pay no attention to the fact that a consensus on the influence of media trials on judicial fairness never was actually formed in the traditional media, the sort of understanding that “media must supervise the judiciary” is deeply rooted within traditional media, but standards for supervision, however, have never been formed, the concept of presumption of innocence has never been digested into the value system of traditional media. On administering the abuse of freedom of speech on the Internet according to the law, the work is outside of the net, we must establish a basic framework for legal standards on freedom of expression, and progressively turn it into a common understanding of the whole society, traditional media bear a historical responsibility in this process of shaping consensus.
Researcher of the Communication University of China Media Law, Regulation and Policy Research Centre dr. Liu Wenjie put forward: the Yao Jiaxin case again raised the question of the relationship of public opinion under new media conditions and especially network public opinion with the judiciary, and the discussion centring on the scale and standards on how to report facts corresponding to the case has emerged again. The opinions supporting large-scale reporting opine that only through public opinion supervision, it is possible to realize rule of law, and it is possible to supervise the judiciary in realizing rule of law, while the opposite point of view opines that public opinion supervision without any limit is not supervision, but is expanding the probability of mistakes, damaging judicial independence, and thereby creating new types of judicial unfairness. The sources of this phenomenon lie in: because our country’s public security, procuratorial and judicial systems’ credibility remains to be further strengthened, individual courts and judges, when dealing with individual cases, must bear a responsibility for establishing propriety in the entire judicial system. At the point in time where this cases was at the trial stage, social audiences, on the basis of strong first impressions, suspected judicial unfairness, and the court had to prove to society that no judicial unfairness existed here, in order to prove this point, the best method was to be found in the result of the judgement, and in it being the same as the opinion of the public, the judge’s channels for understanding public opinion, mainly are understanding media, and especially are today’s new media. Because of this, the relationship between media and the courts or the whole question, cannot not simply be solved through improving or strengthening media law construction, it also requires the Party and the State to continue to move rule of law construction forward, continue to move judicial reform forward in a phased, planned and powerful manner, only then is it possible to remove the weight that no single court and no single judge can bear. Furthermore, there are specific subjects and the traditional media’s duty of attention, for instance: how to implement traditional media’s verification duty, balanced reporting duty, and the duty to call conclusions into question, under new environments.
10. the case of Ms. Yu v. Sina on closure of a Weibo account in violation of contracts.
Event summary: on 2 December 2011, the Beijing Municipality Haidian District People’s Court came to a first instance judgement in the case of Ms. Yu v. Sina on closure of a Weibo account. The court held that, the plaintiff did not have inappropriate expressions on her own microblog, the defendant, Sina Corporation, closed her Weibo account without authorization, and under the circumstances of not having notified ms. Yu in advance, exceeding the reasonable scope of necessary measures, the actions were not proper, upon which it was held that the actions of the defendant constituted a breach of contract, and the corresponding economic damage to the plaintiff was to be compensated.
Reason for selection: This case is a new problem in the new media environment, emerging in civil law relationships. This sort of dispute reflected network service providers’ multiple legal positions and performance of duties that are different in nature, and at the same time can influence the ordinary civil rights and rights of speech of netizens. The Court’s acceptance and decision of this case, has engendered desirable effects in standardizing burgeoning network media order, and resolving conflicts of rights.
Appraisal: Vice-Director of the Communication University of China Politics and Law Faculty and Vice-Director of the Communication University of China Media Law, Regulation and Policy Research Centre, prof. Wang Sixin put forward: first, this case touches on the important question upon how to define the nature of the sort of service platform that Weibo is, and we must consider how to balance the relationships between the more than 100 million network users and Internet service providers. Microblogs benefit the public’s exercising the rights of free expression, to accept and transmit information, and is a platform for individuals to build their own identities, it has also become a platform for individuals to bridge all their social resources. Because of this, microblogs services have a public natures, and they should be seen as a sort of platform having a media nature. Second, network service providers are in an extremely awkward plight, we must discuss whether or not network service providers have the qualifications and capacity to decide on the legality of microblog accounts, or which kind of responsibility they must bear if they pass erroneous judgements. The basic attitude of the first instance court and the judgement deserve to be affirmed. under the circumstances where the service provider cannot provide full evidence, ruling that the service providers restores the user’s account information, is in fact fully considering the private properties that this sort of microblog service platform has, and at the same times, it has public nature characteristics as well, and at the same time, it also considers the balance between the interests of service provider and the users, and balanced the interests of individuals and the interests of society.
Partner of the Beijing Weiheng Law Firm, lawyer Rao Hongbin is of the opinion that: analyzing the result of the first instance judgement, the main reason for Sina Corporation’s losing the case lies in it not having conducted full proof that Ms Yu abused or attacked other persons, the difficulties faced by Sina Corporation’s proof lies in the problem that it involved electronic evidence. From the point of view of practical lawyer’s affairs, this case actually is an extremely good juncture, it lets us reflect more on whether or not a more operational operating standard and a rule on evidence should be considered for electronic evidence provision and acceptance in civil cases, under circumstances of the fast development of the modern network economy. This case also raised a topic for discussion, which is how academic circles and theoretical circles reflect on and weigh safeguarding the freedom of speech of citizens and standardizing network order, and seek a balance between them, or how to roll out a number of realistic and feasible operational standards and norms.
(Arranged by Li Danlin, Zheng Ning and Li Wenzhen, translated into English by Rogier Creemers)