“If you don’t have anything nice to say….”

“If you don’t have anything nice to say, don’t say anything at all”

The space for meaningful public debate in China got a little smaller this week as professional regulatory organizations for lawyers and journalists released  controversial new rules governing their use of the internet and other media.

Media controls are a fact of life in China, and this last year has already seen increased regulation of internet speech, including expansion of criminal punishments for internet rumor mongering and the disruption of order in the ‘public space’ of the internet, which have already been used to prosecute both journalists[i] and lawyers[ii] . Yet this new volley of restrictions, specifically aimed at these two groups that include some of China’s most insightful and well-informed critics, makes explicit that dissent and debate are not considered suitable for the public sphere.  For journalists and lawyers who trade in public discourse and serve as the public’s eyes, ears and voices, this is a threat to their professional identity.

Opposition to the new draft Code of conduct and Disciplinary Rules for lawyers has already united many legal professionals with some even calling for the resignation of the head of the All China Lawyers Association.  Drafts of these documents have not yet been made public on the Lawyers Association’s website or circulated to all members, but were released instead to a small group for comment, and somehow made their way online. The rules impose tight restrictions and potentially stiff sanctions on lawyers’ use of the internet to discuss cases, sign public letters and petitions or offer “imprudent” judicial commentary.

It should be understood that while there have been recent bold moves towards increased judicial transparency in China, these limitations on speech arise in the context of an essentially closed judicial system where a lawyer’s use of social media and other informal communications is sometimes the only meaningful check on judicial abuses or inherent unfairness in case-handling.

In the most overtly content-based passages, the rules flat-out prohibit lawyers from disparaging the legal system and government policy, and offer the possibility of punishments ranging from admonishment to expulsion from the lawyers association.  For example, lawyers “must not use the internet or other media to express radical or improper comments about cases or public affairs, or to express opinions attacking or vilifying China’s judicial and political systems…” and “must not call on or unite others to create a surge of public opinion or pressure regarding a case they are undertaking…” which is considered interference with the trial process.[iii]

The following provision from the Disciplinary Rules is a good example of the level of specificity and subjectivity in the rules, [notice that item (1) includes comments made in a public forums as well as in publication or online]:

The announcement of the new Code of Conduct and Disciplinary Rules follows the drafting of two new sets of ethical rules for lawyers released by the Ministry of Justice and the ACLA respectively. Although there were press conferences praising the release of these other documents in early June, they have not yet actually been made available, nor could a ‘leaked’ version be found. Creating a dialogue on legal ethics in China is clearly a worthwhile goal, but given the tenor of the Code of Conduct and Disciplinary Rules, one might suspect that the ethics rules are as likely to be about stifling dialogue as they are to be fostering it. This may be an unfair pre-judgment, but without access to information it is easy to assume the worst, which is sort of my point.

Similarly, the June 18^th notice on rules for journalists has been announced by the State Administration of Press, Publication, Radio, Film and Television (SAPPRFT) but not yet made publicly available. The rules are said to prohibit journalists (official press members) and news bureaus from creating their own critical reporting without authorization from their employer. This prohibition includes criticism released on independently established websites, local website channels, special editions or internal references.  These limitations are aimed at reducing a perceived trend of ‘blackmail by news’, media corruption and ‘fake news’ that has resulted in 14,455 reporters and 49 news bureaus losing their credentials in 2013 through March 2014.

China has been quick to refute that this circular is aimed at stopping all criticism and insists that criticism will still be permitted so long as prior approval is gotten. Some experts in Chinese media have also rightly reminded us that there may be little new here as reporting has always required advance approvals. The potentially new risk here, as with the rules for lawyers, is that by virtue of their licensing, journalists are actually becoming more restricted in their speech than ordinary citizens.

About 2/3 of Chinese internet users are said to operate blogs, and while these blogs are regulated and can be shut down or have content blocked, and bloggers may face criminal charges for unlawful content as discussed above, blogging is generally permitted; even blogging critical of existing policies. What the June 18^th notice seems to say is that critical blogging is not allowed if you happen to be a reporter.[iv] Of course, without seeing the actual document, it is difficult to know if terms like ‘critical’,’ independent’ and ‘report’ are given any further clarity.

Looking back at the rules on lawyers, the problem is essentially the same; beyond reasonable restrictions on lawyers’ handling of confidential information and deportment at court, the Disciplinary Rules seem to impose special obligations such as to not be critical of the judicial and political systems.

Journalists and Lawyers enjoy some privileges by virtue of their professional credentials, and imposing special duties commensurate to ensuring that those privileges are used responsibly and not abused is entirely normal and understandable. The danger is that such regulation becomes an exaggerated response to the threat of abuse and impedes the proper use of professional privilege or even impacts their ordinary civil rights. Beyond that, the same rules that regulate speech for all citizens should be sufficient.

It is possible that the foreign media, and some Chinese, are overreacting to these recent developments and that these new documents  largely recite existing restrictions or will have little impact in practice. (A free and critical press does sometimes steer us from the truth either out of ulterior motives or simply jumping to conclusions). The documents that we have seen however do look troubling, and that we aren’t able to see the others is not unusual, but troubling just the same.  After all, it’s not only the rights of lawyers and journalists at stake, but the rights of the public to hear the views of those with the expertise and position to offer meaningful commentary.