Thursday, June 10th, 2010...11:48 pm

Reading into China’s White Paper on the Internet

Jump to Comments

China released it’s White Paper on the Internet yesterday (Beijing June 9, 2011), full text in English here, in Chinese here, a brief English news report by China Daily here.

So what do we make of this story? The paragraph that has got a lot of attention starts like this:

Chinese citizens fully enjoy freedom of speech on the Internet. The Constitution of the People’s Republic of China confers on Chinese citizens the right to free speech. With their right to freedom of speech on the Internet protected by the law, they can voice their opinions in various ways on the Internet.

Coming from a regime that is known to have censored Facebook, Wikipedia, Twitter, Youtube, even Gutenberg – the site that offers free classics, the farthest thing from porn or violence, this seems pretty hypocritical. Indeed, the succeeding part confirms this suspicion:

Vigorous online ideas exchange is a major characteristic of China’s Internet development, and the huge quantity of BBS posts and blog articles is far beyond that of any other country. China’s websites attach great importance to providing netizens with opinion expression services, with over 80% of them providing electronic bulletin service. In China, there are over a million BBSs and some 220 million bloggers. According to a sample survey, each day people post over three million messages via BBS, news commentary sites, blogs, etc., and over 66% of Chinese netizens frequently place postings to discuss various topics, and to fully express their opinions and represent their interests.

Do you see the contradictory? Maybe not at first sight, but as many Chinese netizens have pointed out, according to these official statistics, these channels of “vigorous-idea-exchange”- BBSs, carry less than an average 3 posts per day each – if all 3 million messages come from BBS and a little come from news commentary sites, blogs, microblogs, or anything else.

Netizens have called this “blatant lying”, but then again, we are reminded that BBS posts as well as blog posts, comments, etc are heavily censored and monitored in China, and at the same time, there is an army of “fifty-cents party” allegedly paid by the government to make posts that swing towards the official line, which would mean, if any person would trust this “White Paper”, that messages from real netizens were even less than the 3 million, not that so little is posted, but so many many many more is censored. The same post that pointed out this contradiction says this would mean 98% of the original posts are censored and never saw the light of the day.

I’m inclined to think that the White Paper drafters simply made these numbers up than to believe that censorship is so rampant as to make these numbers real. But this is not my concern, I’m interested in what this White Paper tells us about China’s legal environment for the Internet.

One thing that struck me about this White Paper is the sheer number of laws, regulations, decisions, rules it mentioned, in order to, as we could safely assume, to draw legitimacy of the claims: a whole 18 of them, not including another six or seven conventions related to Internet management. Here is the thing: the more is not the better. The only “law” is Electronic Signatures Law (though there are other “laws” that contain articles related to the Internet, e.g. Article 285 and 286 of the Criminal Code pertain to computer hacking), the other regulations are issued by State Council, the Information and Technology Ministry, etc – and the execution and supervision of those regulations/decisions are carried out by the relevant ministries, security department, Administration for Industry and Commerce, Administration of Press and Publication, etc.

Here is the question: how do you expect an administrative body to write its own “law”, AND to execute it, to monitor and supervise it?

Peking University Professor Hu Yong, who specialized in media and communications, has similar question and calls for more “constitutional thinking” in managing the Internet. He took the Green Dam disaster as an example of administrative agencies, in this case, the Ministry of Industry and Information Technology, went outside of the legal frame and issued an order that doesn’t seem to come out of much deliberation of consequences, would adversely affect the lives of millions.

We should note that this unsystematic legal situation is not unique to laws regarding the Internet, but the whole body of what we call “Chinese law” is actually consisted of many many many individual statutes, decisions, orders, and of administrative regulations and rules made under different ad hoc policy orientations. The messiness increases because according to Administrative Litigation Law of China, the courts are not empowered to interpret a set of regulations or declare them unconstitutional or as exceeding their delegated authority – the most that the courts can do is determine that a specific application of a regulation (or law) to a specific individual (or a legal person) is unlawful and hence, should not be applicable in that instance or should be compensated for.

Although administrative regulations, district rules, etc, under Article 89 of the Law on Legislation should be reported to relevant higher authority: measures promulgated by the State Council, its Ministries and Commissions, and sub-national People’s Congresses are to be reported to the NPC Standing Committee and that those of People’s Governments are to be reported to higher levels of People’s Government through to the State Council and under the Constitution, the NPC Standing Committee can annul any State Council action and the NPC as a whole can do the same re any Standing Committee action (meaning that everything is potentially reviewable by the NPC).

In theory, these mechanisms are going to ensure that the measures are consistent with the Constitution and relevant laws (Note: China does not yet have a full constitutional review system). The challenges are: 1. According to Article 82 of the Law on Legislation, departmental rules and provincial level local regulations have comparable authority, thus there is the possibility of overlapping but not always consistent legal enactments. 2. Sub-national level agencies report both to the national ministry to which they belong, and their level of government.

So if I may make a suggestion here to the Chinese government here: censor the Internet all you want (netizens will only get better in getting around the GFW); make excuse for it; make up statistics if you like (and not be afraid of being caught lying); but please, review these rules, root out unconstitutional, illegal or inconsistent regulations, and have a real Internet law.

To digress a little, another point made pertinent in the White Paper is China’s report on its “success” in bringing government online, claiming that it has built more than 45,000 government portal websites and that more than 80% of governments above county level have their own e-govern website. My friend Graham Webster wrote a brilliant A.M. thesis on this very subject, and finds that due to the lack of a centralized guideline/model for these websites, the city e-government websites are very diversified and lack of a common infrastructure; and if we were to see these websites as channels of citizen participation then the data these e-governments would get at their back end is very fragmented. (If you want to read his thesis, which I found very interesting, ask him for it:)

Be Sociable, Share!

Leave a Reply