Speak softly or there’s a big stick: some clarifications on China’s new networks interpretation

The September 6 joint-release by China’s Supreme Court and Supreme Procuratorate of a judicial interpretation involving criminalization of internet speech has generated a fair amount of attention domestically and abroad, but as is often the case with new legal authority in China, the interpretation raises as many questions as it answers.

Factor in the internet’s cavalier attitude to the truth and the difficulty of getting reliable information in China generally, and it’s is no surprise that this interpretation, meant to stop disruptive rumor-mongering, has itself become the focus of a huge amount of misinformation and incomplete reporting.

Unfortunately, for some, this unclarity is not merely of speculative interest but of urgent and immediate importance. Consider, for example, the sixteen year-old Gansu boy facing up to 5 years in prison for the crime of ‘provocation and causing disturbances’ after speculating that a reported accidental death was actually a homicide involving corrupt police. Careful legal analysis of the new document is unlikely to provide much solace to such persons, but it can at least help to correctly focus criticism and encourage discussion. [Update on Gansu case]

First, the interpretation does not apply only to the internet, but specifically applies to a broader range of communications including telephones, texts, radio and television. Information campaigns commonly used by NGOs , interest groups, and advertisers via phone and email elsewhere in the world, all face the risk of running afoul of the interpretation. The impact of the interpretation is thus broader than generally realized, and the chilling effect is already palpable.

Second, the interpretation actually addresses four distinct crimes and has discrete provisions regarding each: defamation, ‘provocation and causing disturbances’ (picking quarrels), illegal business operations, and blackmail or extortion. The often referred to “5000 views or 500 transmissions” threshold for the activity to constitute a crime, for example, does not apply to the crime our friend in Gansu is accused of, but only to defamation charges.

Defamation in China involves a) fabricating and spreading falsehoods that b) cause harm to a specific target c) where the circumstances are serious, and is punishable by up to three years imprisonment. The interpretation strives to define several of the elements required to establish the crime, including expanding ‘fabricating and spreading falsehoods’ to include even disseminating such information when clearly aware that it was false.

More importantly, ‘serious circumstances’ is defined in the interpretation in terms of the scope of dissemination (5000 views, 500 transmissions) , the consequences of the publication (causes the victim to become insane or harm themselves), and whether the offender is a recent recidivist (received an administrative punishment for defamation in the last two years). The scope requirement sets a rather low bar for establishing criminality, but the interpretation also contains a catch-all, ‘other situations’ clause, which may be interpreted broadly if no other provisions fits..

In China, defamation usually requires that the victim complain before it will be prosecuted, except when there is “serious harm to state interests or the social order,” (Criminal Law Art. 246) a phrase now defined in the new interpretation. While some parts of this new definition create a generally high threshold, such as requiring that the defamation cause a mass incident, public disorder or ethnic or religious unrest, others are more ambiguous such as harming the national image, defamation of multiple persons creating a repugnant social impact, or causing a repugnant international impact; and of course the definition ends with a catch-all “any other” type clause.

Still, as the falseness of the statement remains an essential component of defamation, this would seem to provide some level of security against accidentally violating the law.

Provocation and Causing Disturbances, however, is not usually concerned with truthfulness, but with serious disruptions to the social order, and is punishable by up to 5 years imprisonment. As the harsher penalty implies, this is a major crime and requires that the social disruption be caused by serious actions such as randomly attacking people, chasing people, intimidating or berating people, grabbing property, occupying public property, or wreaking havoc in a public venue.

Interestingly, and not coincidentally, this crime was also the subject of its own judicial interpretation just a few months before the networks interpretation. That interpretation seemingly raised the bar for criminalizing disturbances, by clarifying, for example, that attacks on others and intimidation or berating were only sufficiently repugnant as to constitute a crime when done with a weapon, causing certain severe harms to the victim, targeting certain vulnerable populations or were done by a repeat offender (although the ubiquitous catch all clause is also present here allowing leeway).

The earlier interpretation on ‘causing disturbances’ also made some efforts to clarify what was meant by a ‘public venue’, a critical issue because some police had begun to find that the internet was a public venue for purposes of administrative punishments and this crime. The disturbances interpretation listed only physical examples of public spaces such as theaters, hospitals, bus stations etc, and seemingly took the virtual world entirely off the table by saying that the degree to which the whole venue was impacted or disrupted should be considered in deciding if the crime had been committed, and disturbing the entire internet would presumably be a challenge.

Yet just months later, the networks interpretation expressly clarified that “[t]he dissemination of false information on information networks. which one has either invented or clearly knows to be false information, or the organizing or inciting of others to disseminate it on information networks, creating an uproar and causing public disorder, is to be convicted and punished as the crime of ‘provocation and causing disturbances'[…]”and explicitly cited the Criminal Law provisions on causing commotions in public venues!

So information networks are venues where one can cause a commotion, but does the resulting disorder need to exist offline, or can it exist solely online as well? The future trial of the juvenile from Gansu will be closed due to his age, and is thus unlikely to give us any insight into this, or whether the high requirements for establishing this offense are still upheld. [Update on Gansu case]

Remember also that the truth or falseness of information is not usually associated with this crime in any way. So, the interpretation is seemingly limiting charges that this crime has been committed by virtue of acts causing a commotion in a public venue to situations where false information was spread, but only when that public venue is an information network. In other ‘public venues’ this distinction does not exist, and it becomes something of a stretch to call this an interpretation by the court as opposed to legislating.

Illegal Business Operations is another crime, usually concerned with monopolies, illegal import-export operations, and the like, which has been contorted to contain an element regarding false information. The interpretation clarifies that paying people to disseminate false information over networks can constitute the crime when the values involved are sufficiently high. This is reportedly to stop a common practice of companies hiring paid shills to make posts and reviews berating their competitors,

Finally, the only comments on Blackmail and Extortion in the interpretation include that demanding payment in exchange for not publishing or deleting information on networks will be considered blackmailers and that those knowingly providing support or facilities to blackmailers will be tried as joint criminals. The latter was already law since being made in an interpretation on the crime of blackmail made in April of this year.

Enough on Crimes, Who’s Got the Punishments?

All of the discussion above is about crimes, but most of the recent ‘crackdown on internet rumors’ has actually occurred through the administrative security punishment system. In China, many offenses that would be called minor crimes or misdemeanors in the US, are considered violations, not crimes, and can be punished directly by the public security police organs. While the offenses may be, in theory, so minor as to not constitute a crime, the punishments can involve multiple-year detentions.

These administrative punishments have fallen out of favor with the courts, whose authority is skirted by them, and with the central government. It has been promised that by the end of this year the imposition of Reeducation through Labor, the most notorious administrative detention model, will be stopped. This in part follows a number of embarrassingly improper uses of the punishment, including nearly two years served by a man in Chongqing for comments he made online; a decision ultimately overturned and for which Mr. Huang Chengcheng received about $22,000 in compensation.

The release of the networks interpretation was seen by some as an attempt to take the ‘internet rumors crackdown’ out of the administrative punishment system and put it into the courts where the implementation of China’s revised Criminal Procedure Law has provided defendants in many cases with greatly increased procedural rights and has begun to increase transparency in the court system.

By criminalizing these offenses, the courts and procuratorate would be bringing them under their own jurisdiction, and taking them away from the public security organs, thus ensuring that the worst abuses are prevented and citizen’s rights are better protected.

This is a generous understanding, but even if true reflects a woefully misguided effort. It essentially amounts to believing that China’s judicial authorities are announcing that “we had to criminalize the conduct in order to protect it.”

The Networks Interpretation endorses punishment of speech subject to vague and rapidly changing standards as described above. Criminal trials of these offenses are likely to be more fair than administrative hearings, but this is only one consideration.

Expanding the net of what conduct is criminal can only encourage police investigations into this type of offense and any threat of even an investigation is likely to stifle some speech, particularly in China where there those under investigation may be subject to disruptive searches and prolonged periods of detention. The police also still have the initial authority to decide whether a crime has been committed or only a violation, which would be handled by the administrative punishments system. A wrongful administrative punishment might be overturned through administrative lawsuits (as was true before the interpretation) but this situation is not terribly common and is often motivated by the very type of online information sharing which will be further stifled by the interpretation.

Ultimately, the issue isn’t about punishment or about abuses of the system, but about what message is sent to the media and citizens looking to use information resources to report, whistleblow, or discuss. Here the message is clear- speak softly or there’s a big stick.