Yesterday, the Supreme People’s Court issued a document with the – predictably convoluted – title “Supreme People’s Court Regulations concerning Some Questions of Applicable Law in Handing Civil Dispute Cases involving the Use of Information Networks to Harm Personal Rights and Interests”. This document provides instructions to People’s Courts on certain aspect of dealing with civil cases involving harm to personality rights, including the right to privacy, portrait rights and reputational rights. (Full disclosure, I was involved in an academic project that provided input into the drafting process). It has been drafted to supplement the broad language of Article 36 of the Tort Liability Law, which sets forth a basis of liability for the online infringement of citizens’ rights, and provides for basic remedial measures. The Article’s wording left many questions of procedure and substance unanswered, meaning that courts (which in China’s civil law-based system have considerably less leeway to interpret the law, and do not create binding precedents) often faced considerable difficulties in handling these cases.
So, what are the salient points?
Most of the provisions in the document relate to procedure, yet have important consequences for the potential liability of network service providers and a fortiori, Internet users. Article 3, for instance, indicates that if a plaintiff sues only an Internet user or a network service provider (rather than both), the defendant may request that the other party is added to the case as a joint defendant. In other words, defendants are incentivized to share the blame and, in case compensation is ordered, the costs. Internet service providers are also mandated to provide identity and contact details of Internet users posting unlawful information, and face punishment if they do not provide this (Article 4). So far, efforts to impose an online real-name registration system have only been moderately successful, but depending on the penalty companies might incur if they are not able to provide identity details to courts, that might just change a little. Yet the real-name requirement goes both ways, as Article 5 indicates that Internet service providers are exempt from liability if the plaintiff’s notification about the presence of harmful content does not include a full name and contact details, indication of the harmful information, and an explanation for why it might be harmful. Furthermore, plaintiffs who falsely indicate that certain information is unlawful, face tort liability themselves (Article 8).
One particular bugbear in Article 36 was knowledge of the infringement as a necessary basis for liability for Internet service providers. Article 9 of the SPC Regulations provide a number of possible factors, including whether the ISP actively processed the information, the extent to which it can be reasonably expected that the ISP has the ability to identify this kind of information, the degree to which it is clear that the information is unlawful, its influence and hit rate, the extent to which it is possible to carry out remedial measures, and whether a case concerns repeated infringement by the same user or through the same information. Another hot topic was the question of liability for retweeting information, particularly since criminal liability was imposed for retweeting false defamatory information more than 500 times last year. On the civil side of things, these regulations provide that fault is a condition for liability for retweets, and might be constituted by the duty of care borne by the retweeter, the extent to which it is clear that the information is unlawful, and whether or not the retweeter alters the information in a manner resulting in harm. This is an interesting inversion of the public figure doctrine as it exists in the US. Under American defamation law, prominent public figures must satisfy a higher burden of proof (actual malice) than common individuals in cases of alleged defamation against themselves. Within the Chinese system, public figures, such as online celebrities and “Big Vs”, bear a greater duty of care than common individuals not to defame others, because of the disproportional impact their expressions may have.
Article 11 confirms that tort liability applies also to defamatory expressions concerning commercial parties, as well as their products and services, while Article 12 imposes a presumption of tort liability in cases where individuals’ medical and criminal history, their household address, and other such private details are published. Exceptions include agreement or self-publication by the data subject, publication for the public interest or scientific research under conditions of anonymization, and for the purpose of obeying other laws and regulations. In short, it may be assumed that this presumption is not strong enough to prevent the publication of, say, the telephone book. A very broad exception is granted to State organs, who (at least as far as this particular provision is concerned) can publish whatever they like in fulfilment of their duties.
The SPC also goes after the much-maligned “black PR” business. First, it declares all agreements concerning the deletion, alteration or blocking of online information for payment invalid. Second, it institutes tort liability for these activities, meaning that affected users and ISP have a right to recourse (and compensation), and thus an incentive to sue. (Article 15) Further incentives to sue are introduced in Article 18, which provides that reasonable expenses incurred to stop the infringement, as well as reasonable lawyer’s fees may be included in the calculation of compensation. This might mitigate much of the cost of litigation, which has hitherto been identified as one of the higher barriers against the filing of cases. There is also a statutory amount of compensation provided for cases in which the actual damage is difficult to calculate, fixed at 500,000 Yuan (£50k/US$81k/€64,5k). This may not seem like a lot at first, but it is nearly twenty times the average amount of urban disposable income reported for 2013.
Is this not just another form of Internet control?
To a certain degree, yes. In particular, the requirement that ISPs must provide real identity information to courts when demanded has elicited some concern in foreign reports. Equally, there are legitimate questions about some of the wide exceptions given to State bodies in some of the new rules. But the matter is a bit more complex, and deserves more nuance than the simple “dictatorial government quashes civil rights” narrative.
1: These rules fall under civil law, not criminal or administrative law.
For non-lawyers: civil law is the law that governs relationships between individual citizens. Tort law is one part of it, and exists to provide relief to individual who suffer harm through wrongful actions by others. Consequently, cases within this area of law are initiated by the victim of a wrong, not by the State. This actually makes it not so useful a tool for coercive State power as criminal or administrative law – which the State controls much more. Furthermore, Chinese tort law (as, indeed, most of global tort law) is aimed at compensating harm, not punishing wrongdoing. In other words, the consequences of a finding of liability might result, for instance, in an order to pay compensation, restore the status quo ante, or an apology, not in prison time. (This is why media outlets should take care about the use of the word criminalization – it’s not because something is unlawful that it’s criminal). It may well be that officials might intervene on patrons’ behalf during litigation, just as happens in any other area of law, but problematic as that would be, it could in principle happen on both sides of the argument.
2: Much of the harm identified by these regulations is real
What is rarely discussed in Western media is that the Chinese Internet is rampant with various kinds of scams. The announcements that some general died in a country far away and generously left me a few million (which I receive on a regular basis – being a general apparently comes with a high death rate) pale in comparison with some of the stuff that goes on in China, which includes the alleged extortion of more than 100 companies by one of the country’s leading media group. In my view, it is not unreasonable, nor illegitimate, that legislators aim to protect citizens (and companies) from harm that might occur through malicious publication or alteration of online information, or at least create ways in which compensation might be sought.
3: Some provisions might actually enhance transparency
One of the targets of these new rules is the “black PR” industry, people who are paid to remove or alter publicly available information about companies, but also officials. It is one of the ways by which corrupt officials aim to avoid the gaze of Beijing’s censorate, the Central Discipline Inspection Committee. There is a continuing stream of reports about companies that used the industry to slander competitors, extort funds as indicated above, or remove negative stories about themselves. These new rules may, at least in theory, empower both the posters of legitimate information as the websites on which it is published.
Aren’t you just feeding the trolls now?
There are many, problems with the Chinese legal system that are far broader and more profound than these specific new rules. This new document actually illustrates them in quite an interesting manner. We get a lot of specifics about procedure: who can be liable, which documents are necessary to evade liability, under which circumstances can they be liable, etc. What this Judicial Interpretation does not provide, is a clear list of criteria to decide on the facts of the case, or in other words, how to determine whether a particular expression is defamatory or infringes another personal right, and if the answer to that is yes, whether there is a legitimate defence for having done so. In comparison, most voluminous section of the UK Defamation Act 2013 is the section outlining all particular defences, and their constitutive elements. Furthermore, it institutes a threshold of serious harm, to forestall lawsuits over trivial insults. De minimis non curat lex. But this Act exists within a broader legal context: one in which a constitutional presumption of free speech has been strongly established. The Defamation Act thus exists at the intersection of two fundamental principles: the (tort-based) protection against harm through wrongful acts, and the necessity to safeguard free speech – even if that entails certain individuals must be called upon to tolerate, or even suffer, certain harms. One of the most important reasons free speech is a fundamental part of many Western legal systems is exactly to protect publications that might be found offensive and harmful. One does not need free speech protection to publish Paddington Bear as much as one needs it to publish Common Sense. Political opinions, racy novels, horror films or religious treatises often easily evoke resentment and (at least perceived) harm to the self. But toleration of what is resented has become essential for the organization of an open and pluralist society – its impossible to please everyone. Neither is it possible to protect everyone from the inevitable vicissitudes of life through the law. Still, most legal systems in the world have – rightly, in my view – decided that free speech does not extend to malicious and false accusations, for instance. To be sure, the line is thin, and there will always be a good argument on why a particular lawsuit should have gone another way. That’s why we call it a judgment; most cases aren’t black or white, they imply a choice between two competitive arguments on the basis of legitimate concerns. Perhaps ironically, a steady stream of cases might be beneficial: it allows us to continue debating on the judgments and decisions made in concrete cases, and how they reflect the way we want our society to be governed. Also, it is beneficial not to try and legislate for all possible occurrences, the transaction costs would be horrible, reality might change in surprising ways, and the consequences of pernickety micromanagement might be worse than having legal disputes from time to time. In short: Western legal systems see legal disputes as inevitable at worst and possibly salutary at best.
Chinese law is founded on rather different assumptions, the most relevant to this discussion perhaps being the one that a legal system is perfectible, and thus eliminate all kinds of harm. The Imperial Code contained an article imposing punishment on all things “that should not be done”. Both Republican and Communist ideology was predicated on utopian ideals, remnants of which remain in, for instance, the Chinese Dream. Reform policy documents often contain the verb 完善 wanshan, or “to make perfect”. In short: there is no such thing as a legitimate (or unsolvable) problem. This is one reason why this website already contains about 900 translated legal documents: every time something happens that is deemed problematic, the government must do something, even if it is something as trivial as the employment of actors who might have used drugs. It also means that it is extremely tricky and sensitive to navigate the question of which harm one might be expected to tolerate. The instinct of the Chinese legal mind is simply to stop harm from occurring.
To a certain degree, that is a laudable aim. These new regulations would, for instance, provide a convenient path for Jennifer Lawrence to attenuate the circulation of her nude photos. All she would need to do, in theory, is sue the website on which they are posted (which, under Chinese law, must be registered and therefore are identifiable), which in turn can be required to identify all persons who have posted them. But the question is not about the individual alone, but about the collective as well. This approach would also mean that the Internet would be a lot less chaotic and raucous (for better and worse) than it is now. To the Chinese government, that is not a bad thing. Perhaps the best metaphor to describe China’s view of the Internet is a French garden: geometrically perfect and ordered, without a single sprig out of place. Indeed, the objective is to ensure that all sprigs, branches and leaves know their own place and behave accordingly. There are two unresolved problems here. First, what if people disagree with the vision or actions of the gardener? Second, it is difficult to see why citizens would act civilly on the Internet when the Party that governs them is riddled with corruption, is regularly – and clumsily – economical with the truth and steadfastly refuses to engage with broader society. In short, while there might be a case to be made for these rules on their own, they come into being against the background of an intractably dysfunctional system.