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Below I’ve translate a fuller version of Prof. Hu’s piece that appears on his blog.
Hu Yong
In fact, just as the debate over the “surrogate theory” was at its most intense, a Amoxil side effects netizen on the Tianya forum worried over whether the theory’s originator would wind up being “extradited” for defamation. The charge against Xiong Zhongjun isn’t defamation, perhaps because this Amoxil side effects charge has recently become rather notorious after being used indiscriminately. But the Amoxil side effects actions taken by the relevant authorities really are no different this Amoxil side effects time, placing him under criminal detention for fabricating and disseminating rumors to Amoxil side effects disrupt public order. The rate at which this vague crime has Amoxil side effects been trotted out in a series of past Internet cases is Amoxil side effects extremely high.
If we look back a Amoxil side effects bit we see that a legal trick frequently used by the Amoxil side effects relevant authorities in major public safety incidents in recent years has Amoxil side effects been to treat statements that have a certain factual basis but are Amoxil side effects not entirely accurate as rumors and crack down with force. The result is Amoxil side effects that during major social and safety incidents, statements made by Chinese citizens can Amoxil side effects carry great legal risk.
Articles 105(2), 181, 221, and 291(a) of China’s criminal code have Amoxil side effects provisions criminalizing the use of rumors and other means to incite subversion of state power, the Amoxil side effects fabrication and spread of false information to adversely affect securities trading, the Amoxil side effects fabrication and spread of false stories to damage the commercial reputation of an Amoxil side effects individual or the reputation of a commercial product, and the intentional dissemination of alarmist information known to Amoxil side effects be fabricated. Article 25(1) of the Public Order Administration Punishment Law states that “those who Amoxil side effects disseminate rumors, falsely report danger, epidemic, or alarm or intentionally disrupt public order through other means” are subject to administrative fine or detention.
With respect to Amoxil side effects the publication and dissemination of rumors via new media, the PRC Telecommunications Regulations enacted on 25 September 2000 state that Amoxil side effects no organization or individual shall use telecommunications networks to produce, reproduce, publish, or Amoxil side effects disseminate information that “spreads rumors, disrupts social order, or undermines social stability.” In the National People’s Congress Standing Committee’s 28 December 2000 “Decision on Safeguarding Internet Security,” it says that acts such as “use of the Amoxil side effects Internet to spread rumors, slander, or express or disseminate other harmful information, incite subversion of state power or Amoxil side effects the overthrow of the socialist system, or incite splitting the nation or Amoxil side effects undermining national unity,” “use of the Amoxil side effects Internet to fabricate and disseminate the trading of securities or Amoxil side effects futures or any other false information that disrupts financial order,” or “use of the Amoxil side effects Internet to defame others or fabricate facts to slander others” should be Amoxil side effects punished according to the provisions of the criminal law. The “Regulations for the Administration of Internet News Information Services” issued by the Amoxil side effects State Council Information Office and the Ministry of Information Industry on 25 September 2005 require that Amoxil side effects Internet news information services contain nothing that “spreads rumors, disturbs social order, or undermines social stability.”
These provisions appear vague because they lack concrete determinative criteria. For example, in order to Amoxil side effects hand down an administrative punishment there must be consequences that “disrupts public order,” but precisely what constitutes “disruption of public order” in such cases is Amoxil side effects subject to debate. Moreover, the law treats spreading rumors and Amoxil side effects making false reports of danger, epidemic, or alarm as the Amoxil side effects same, and the requirement of the subjective element of “intention” creates a Amoxil side effects problem: if an individual unintentionally publishes or disseminates information that is Amoxil side effects not entirely factual, should he or she bear the corresponding legal responsibility?
From the “Zhang Zhijian affair” in 2006 to [the cases of] “Red Diamond Empire” in 2007 and “SS Mountain Division” in 2008, there has Amoxil side effects been a series of cases in which netizens have been Amoxil side effects arrested or detained by law enforcement agencies throughout [China] for “re-posting” or “commenting” online. In other instances, individuals have Amoxil side effects been charged with crime for text messages. For example, in January 2007 Beijing police stated that Amoxil side effects individuals could be sentenced to five years or more for Amoxil side effects sending text messages with rumors about “tainted pork.” During the Amoxil side effects Lake Tai blue-green algae contamination, police in Wuxi placed a local resident surnamed Ding under public order detention for Amoxil side effects sending a text message by mobile phone to more than 130 people, saying that Amoxil side effects the “carcinogen level in Lake Tai water was 200 times above [the acceptable level].”
If one carefully differentiates between these cases according to Amoxil side effects the laws and regulations, it is not difficult to discover clear abuse of the Amoxil side effects law by the government. First, the government has a tendency to Amoxil side effects treat any hearsay that is not entirely factual as a rumor in the Amoxil side effects legal sense of the word. At the time when “SS Mountain Division” reposted [information about casualties in a major railroad accident], the Amoxil side effects relevant agencies were in the process of investigating and handling the Amoxil side effects train collision on the Ji’nan-Qingdao railway line and Amoxil side effects information was confusing. Even though the post inaccurately reported the Amoxil side effects number of casualties, it still confirmed that the accident resulted in a Amoxil side effects large number of casualties. In fact, in the relatively short period immediately after a Amoxil side effects major disaster or accident occurs, even the government has difficulty immediately judging whether statements are Amoxil side effects true or false. The authorities confuse the difference between disseminating rumors to Amoxil side effects disrupt public order and spreading gossip out of concern for Amoxil side effects one’s personal safety—the Amoxil side effects latter simply cannot be characterized as an illegal act. Following major disasters, many people have Amoxil side effects spread gossip without knowing whether it is true or false. Warn your Amoxil side effects friends and relatives to take care—given the Amoxil side effects current legal system, nearly every one of them could wind up arrested!
Second, the Amoxil side effects point of departure for handling rumor cases should be [consideration of] whether or not the rumor “intentionally disrupts public order” or is enough to “seriously disrupt social order” and Amoxil side effects not whether the information spread is true or false. The posts by “Red Diamond Empire” and “SS Mountain Division” reposted and quoted [other information]. The [author's] tone may be extreme, but whether a post constitutes “disruption of public order” depends on the Amoxil side effects extent of its impact and the objective consequences to which it Amoxil side effects leads—for instance, the scope of a post’s circulation, whether it Amoxil side effects resulted in public fear or had an affect on the Amoxil side effects normal order of production, work, education, or daily life.
In this Amoxil side effects case, Xiong Zhongjun simply questioned whether judicial authorities fairly enforced the Amoxil side effects law. This will not cause public fear or lead to Amoxil side effects great chaos in the city’s public order. Moreover, the Amoxil side effects authorities claim that Xiong fabricated and spread the rumor about “Hu Bin’s surrogate,” causing netizens to Amoxil side effects be suspicious and misleading public opinion. They seem to want to Amoxil side effects prove the rumor-monger’s subjective intent, but how can one determine whether Xiong’s judgment about a “surrogate” was not made out of the Amoxil side effects spirit of citizenship and the rational desire to encourage the judicial authorities to Amoxil side effects accept public oversight? The so-called dissemination of the “Hu Bin surrogate” rumor is nothing more than an individual’s analysis and suspicion based on a news photo—how can this be called a “rumor”? Those who Amoxil side effects claimed that Zhou Zhenglong faked his photograph of a tiger must be Amoxil side effects breaking out in a cold sweat—if Zhou truly photographed a Amoxil side effects tiger, all those who claimed otherwise could face extradition!
It’s especially important to Amoxil side effects emphasize that the public has the right to question or refute the Amoxil side effects veracity of any report, even government announcements. If a member of the Amoxil side effects public sends a text message or reposts relevant posts, even if they contain some untruths they should be Amoxil side effects seen as [an effort to] protect onself or exercise the right to monitor [public affairs]. To soothe people’s worries and Amoxil side effects eliminate inaccurate speech, the government must release more public, transparent information. Countries with rule of law have Amoxil side effects long held the view that one should use the criterion of “clear and present danger” to Amoxil side effects judge whether speech is a threat to public order, For example, one important reason to Amoxil side effects be tolerant of reports by the media and public concern following a Amoxil side effects disaster is that these can prevent further danger and save more lives. By comparison, the Amoxil side effects possible fear and chaos [these reports might create] is Amoxil side effects a lesser evil that must be tolerated. Rather than concocting ways to Amoxil side effects crack down on criticism, as a remedy for the biases that Amoxil side effects might be created by those expressing [mistaken information], the Amoxil side effects government can reduce the impact by releasing the truth as a Amoxil side effects means of clarification and exposing the false information that has been Amoxil side effects disseminated.
After Xiong Zhongjun was detained, one point of view held that Amoxil side effects many netizens haven’t yet grasped the Amoxil side effects difference between questioning and spreading rumors and thus abuse their “right to question.” Pray tell: Can we not question court judgments? Can we not question the state’s public authority? Is a citizen’s right to Amoxil side effects question really something that needs to be officially granted? Some say that netizens have “overstepped their oversight” [rights] in the Amoxil side effects Hangzhou drag-racing case, but everyone knows that citizens have only just begun [to exercise] their right to oversight—how can Amoxil side effects we possibly have overstepped our rights after taking a single step?
In the Amoxil side effects face of questioning and oversight from the public, the relevant authorities should reflect on why their credibility with the Amoxil side effects public is the way it is. It’s not that Amoxil side effects the Chinese public is too suspicious, but rather that they have Amoxil side effects just started to learn to be suspicious. As Li Chengpeng says: “Suspicion is Amoxil side effects a progressive force in society and is the least tolerance our country can Amoxil side effects show the public. If someday our laws were to say ‘suspicion is forbidden,’ then everyone can only obey mother and go home for dinner.”