China, Free Speech, and On-Line Defamation
On 9 September 2013, the Supreme People’s Court and the Supreme People’s Procuratorate jointly issued the “Interpretation concerning Some Issues of Applicable Law in Handling the Use of Information Networks to Commit Defamation and Other Such Criminal Cases” (hereafter simply named “Interpretation”), which clarified that cyberspace is public space, and that online order is an important component part of social and public order, it defined crime and punishment yardsticks for online defamation and other such acts, unified standards for judicial organs’ handling of corresponding criminal cases, and at the same time ensured that people understand that only if the law is obeyed in cyberspace, citizens’ rights can be guaranteed. As soon as the “Interpretation” was published, all walks of society paid close attention to it and responded enthusiastically to it. This journalist specially interviews the Supreme People’s Court Judicial Committee Full-Time Member Gao Jinghong, and asked him to explain some hot points and questions.
Q: As the “Interpretation” punishes the use of information networks to commit defamation and other such crimes according to the law, how is this reflected in legal protection for citizens’ lawful rights and interests?
A: One point must be made clear first, online defamation cannot be confused with free speech. At present, information networks have become an important platform for public interaction. Free speech is a basic right of citizens provided in our country’s constitution, the broad popular masses’ expressing the popular will, paying attention to social hot sports and incidents, and conducting public opinion supervision through online posting are important methods by which citizens exercise their right of free speech and participate in national political life. Citizens’ expressing discourse on information according to the law and exercising the rights endowed by the Constitution, are protected by the laws of our country. The Party and the government are able to understand social situations, the emotions of the masses and netizens’ opinions and suggestions concerning public affairs through all sorts of information and debates online.
But discourse on information networks is not without boundaries. At the same time that citizens exercise their right of expression, they cannot touch the bottom line that the law has instituted with regards to free speech. “Free speech” does not mean “free rumours”, free speech on information networks is not without borders. No country’s laws will permit “free speech” that defames other persons. A freedom that is not limited will lead to chaos due to a lack of rules, and the end result will be that a good free speech order will be challenged and even destroyed, that public platforms on which citizens express opinions, advice and suggestions become places with a pestilent atmosphere where others are attacked, abused and slandered.
After the “Interpretation” was published, there was a sort of voice that believed that the publication of the “Interpretation” was intended to suppress the space for online free speech, and was even intended to attack or retaliate against critics or people raising suggestions, this sort of understanding is incorrect. For example, in the “Criminal Law Revision Draft (8)”, it is provided that drink-driving must be “criminalized”, the objective for this was not to limit everyone driving cars onto the roads, but was intended to limit specific individuals to drive cars onto the road in a dangerous manner, thus safeguarding traffic order and safety, and thereby protecting the majority of the people to drive cars onto the roads in an even safer manner. As a similar rationale, the “Interpretation” persists in the principle of statutory punishment and strict criminal standards, and will not deal with those who disseminate false information online without knowing the truth, and with acts of expressing extreme or even inaccurate critical opinions on the internet, in a criminal manner. Therefore, the publication of the “Interpretation” cannot be intended to “control” online discourse, but is intended to protect the broad citizens’ right to expression and to realize free speech in the true sense of the term.
The “Interpretation” has provided clear boundaries concerning the ways of action in using information networks to commit criminal defamation, it has provided concrete and clear legal bases for attacking this sort of criminal activity according to the law. At the same time, it has also clarified the legal boundaries of expression and speech on information networks, to make it clear to people which speech can be expressed and which speech infringes the law, it thereby guarantees that the broad popular masses can fully exercise the right of expression and the right of supervision endowed to them by the Constitution, according to the law, and it protects the freedom of speech of the broad popular masses to the largest extent.
Q: At present, “online anti-corruption” has become an important channel of public opinion supervision. How does the “Interpretation” differentiate between online anti-corruption and criminal defamation?
A: At present, the broad netizens use information networks to conduct “online anti-corruption” and “Weibo anti-corruption”, which has had a positive effect in anti-corruption and pro-honesty work. Some corruption cases have been brought to light first on networks, they have attracted the high attention of the relevant departments and have been timely dealt with afterwards. We attack online crime, but cannot give up at the slightest obstacle or smother the vitality of the network, we can certainly not block communication paths and suppress critical voices, this sort of worry is unnecessary.
With regards to the broad popular masses reporting or exposing other persons’ unlawful or undisciplinary acts through information networks, relevant departments shall deal with this earnestly, verify them responsibly, and timely publish the investigation results. Even if a part of the reported or exposed content is inaccurate, as long as there is no wilful concoction of facts to defame others, or where it does not fall into the category of clearly knowing that facts are concocted to defame others, and disseminating them on information networks, they should not pursue criminal liability for defamation. But against those acts of wilful concoction of facts to defame others under the pretence of “online anti-corruption”, and especially organized activities of defaming others on a large scale, it is necessary to firmly pursue criminal liability according to the law.
At the same time that judicial organs attack online rumours, clean up the online space and transmit positive energy, they must strictly grasp the boundaries of laws and policies. They must both attack unlawful and criminal activities of using reporting to commit defamation, and must prevent that accidental injury occurs to those informers who vigorously conduct public opinion supervision and who do not have the intent to defame, especially reports where a part of the reported content is inaccurate. Thereby, they must guarantee the organic unity of attacking criminal defamation and guaranteeing citizens’ exercise of the right to supervision, and guarantee that every case can stand the test of the law and history. Read more…