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http://siweiluozi.blogspot.com/2009/07/hu-yong-on-yan-xiaoling-defamation-case.html
18 July 2009
Hu Yong on the Yan Xiaoling Defamation Case
I’ve just finished a rough translation of an opinion piece by Hu Yong (胡泳)that appeared in this morning’s Southern Metropolis News in which he criticizes the order Prednisone usa use of criminal defamation charges to punish individuals who posted critical comments against local government officials’ handling of the Yan Xiaoling case.

Defamation Can No Longer Be Used to Restrict Netizen Speech
Hu Yong

The public security bureau in Mawei District, Fuzhou, recently detained Guo Baofeng and order Prednisone usa several other netizens. The lawyer for these detained netizens says that order Prednisone usa they were detained for posting or re-posting items on the Internet about the order Prednisone usa “Yan Xiaoling case” in which [Yan was] “brutally gang-raped to death by eight people.” Police have given the reason as “suspected defamation”; when order Prednisone usa the lawyer requested to meet with the detained individuals, police refused on the order Prednisone usa grounds that the case “involved state secrets”. (See the July 17 Xin Kuai Bao report.)

These detentions sound quite familiar to order Prednisone usa us. Like the cases of Wang Shuai, Wu Baoquan, and order Prednisone usa others, they form a part of a long, long list of names of those bloggers and order Prednisone usa netizens who have been detained or convicted by organs of public authority for order Prednisone usa exposing the deeds of local governments. There are two basic elements of most of these types of cases. One is order Prednisone usa the fervor with which ordinary people use the Internet and order Prednisone usa employ text or video to expose and broadcast local injustice on popular Internet forums or order Prednisone usa blogs. The second is the habitual way that certain local governments, faced with suspicion or order Prednisone usa criticism, use the crime of defamation as a weapon of public power to order Prednisone usa attack private rights and try to restrict people’s expression on the Internet.

Police have not said yet who the victim of defamation is [in the case of the] netizens detained this order Prednisone usa time in Mawei. But according to the provisions of Article 246 of the order Prednisone usa Criminal Law, “Whoever, by violence or order Prednisone usa other methods, publicly humiliates another person or invent stories to defame him, if the order Prednisone usa circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than order Prednisone usa three years, criminal detention, public surveillance, or deprivation of political rights.” One should notice that order Prednisone usa this article is placed under Chapter IV of the Criminal Law, entitled “Crimes of Infringing upon Citizens’ Rights of the Person and Democratic Rights.” That is order Prednisone usa to say that the crime of defamation is for serious acts of intentionally inventing and order Prednisone usa spreading false stories to damage a person’s character or order Prednisone usa destroy their reputation. The object of this criminal infringement must be order Prednisone usa a citizen and not the reputation of a business, government organ, or order Prednisone usa other organization. This is why defamation cases typically can only be order Prednisone usa brought following charges from the victim and are only prosecuted when order Prednisone usa the victim files suit [directly] with the order Prednisone usa court. Only in defamation cases where there is serious threat to order Prednisone usa social order and national interest can the public security apparatus mobilize public authority to order Prednisone usa pursue criminal responsibility.

Among the posts regarding the “Yan Xiaoling case,” a order Prednisone usa few individual officials from the public security bureau and procuratorate have order Prednisone usa been mentioned by name. Could it be simply because of their official position that order Prednisone usa [the case] has become connected with social order and national interest? Moreover, the order Prednisone usa day after the posts appeared the relevant government agencies in Fuzhou made public statements denying the order Prednisone usa claims made in the posts. Even if the items by the order Prednisone usa posters and re-posters created a negative impression of the government agencies concerned, that order Prednisone usa doesn’t necessarily make it order Prednisone usa unlawful or illegal acts that necessitate mobilizing the coercive power of the order Prednisone usa state for punishment. If criticism of public officials’ actions [in carrying out] public authority can order Prednisone usa be punished as criminal defamation, the inevitable result is that no order Prednisone usa one will dare to carry out oversight of public authority and order Prednisone usa there will be no way to safeguard the highest value of citizens’ freedom of speech.

Freedom of speech naturally includes the order Prednisone usa freedom to express mistaken ideas, and it is especially the freedom to order Prednisone usa question authority. This requires public officials who face criticism or even fabrications that order Prednisone usa exaggerate the truth to not automatically invoke defamation on the grounds of their rights of reputation or order Prednisone usa privacy—much less use the state’s apparatus of violence to order Prednisone usa satisfy their own personal interests. Yet one after another, there have order Prednisone usa been cases [of individuals who] have order Prednisone usa been convicted for sending text messages or posting items on the order Prednisone usa Internet, many times with senior local officials availing themselves of the order Prednisone usa resources of public authority they have at hand and habitually attacking all criticism of their policies as if it order Prednisone usa were damage to their personal reputations—even not hesitating to order Prednisone usa rely on personal retaliation and stigma to clamp down on speech, thereby creating a order Prednisone usa society and environment for opinion in which everyone feels at risk.

In the order Prednisone usa situation in Mawei, not only has defamation been used as a order Prednisone usa catch-all, vague charge, but the authorities concerned have even resorted to order Prednisone usa using a new magic weapon—the use of “state secrets” to order Prednisone usa answer efforts by netizens and reporters who seek to understand the order Prednisone usa truth of the situation. To carry out an investigation for public prosecution of the order Prednisone usa “defamation” of a order Prednisone usa local official is already a mistake; to completely block the public and order Prednisone usa lawyers from understanding and investigating this case of public prosecution on the order Prednisone usa grounds that it “involves state secrets” only compounds the order Prednisone usa error. Can those who hold public power really use “defamation” and “state secrets” so arbitrarily to muzzle people’s voices? There’s no order Prednisone usa way to explain the logic of these parties: we can only conclude that order Prednisone usa their overbearing rule originates in their belief that they personally represent the order Prednisone usa authority of the law and administration and that any oversight and order Prednisone usa criticism is a threat to this authority. If this kind of scary logic is order Prednisone usa allowed to spread further, a malignant tumor will spread through local governance.

A netizen should enjoy both the order Prednisone usa freedom of speech protected by Article 35 of the constitution and order Prednisone usa rely on Article 41, [which gives] the order Prednisone usa right to criticize and make suggestions or even make complaints and order Prednisone usa charges against, or exposures of, violation of the law or order Prednisone usa dereliction of duty by any state functionary. There can be order Prednisone usa no arbitrary deprivation of these kinds of rights. As a order Prednisone usa netizen put it on kdnet: “As netizens, we pay attention to order Prednisone usa many issues, people, and phenomena be they from the past, present, or order Prednisone usa future, and we create original posts and re-post some items. As members of the order Prednisone usa public, we have the right to question—including parties concerned and order Prednisone usa the police. There are many things about which we don’t have order Prednisone usa all the facts, so we must try to understand. You can order Prednisone usa explain, you can cross-examine, but you cannot break the law in the order Prednisone usa process of enforcing the law. Who gives you the right to order Prednisone usa use public authority to turn civil ‘defamation’ into criminal prosecution? Who is the victim of defamation here? If being concerned is order Prednisone usa a crime, then we are all guilty of this impardonable crime.”