Thursday, February 16, 2017

Man Given Ten Days in Jail for Tencent QQ Posts That "Openly Insulted Leaders of the Party and the State"

According to a judgment issued by the Guangzhou Municipal Intermediate People's Court in May 2014 (translated below) Cheng Huaishan was sentenced to ten days administrative detention for using Tencent’s QQ  service to post statements that “openly insulted leaders of the Party and the State.” Cheng’s sentence was imposed by officials at a local police station based their determination that he had violated China’s “Public Security Administrative Punishment Law.”

The original decision is available on the court's website here: http://wenshu.court.gov.cn/content/content?DocID=4da8571c-ab9c-4a47-beec-4437e63bb700


Cheng Huaishan vs. Jiangsu Kunshan Public Security Bureau Administrative Security et. al.
Administrative Judgment in the Court of First Instance

Jiangsu Kunshan People's Court
Administrative Judgment

(2014) Kun Admin First Instance No. 0015

Plaintiff Cheng Huaishan
Defendant Kunshan Public Security Bureau, located at No. 1288, Qianjin West Road, Kunshan, Jiangsu, Organization No. 01418924-6.

Plaintiff Cheng Huaishan filed suit regarding defendant Kunshan Public Security Bureau's administrative punishment case, and after this court accepted the suit on February 14, 2014 it served a copy of the claim and notice of the lawsuit on the defendant on the same day. This court convened a collegiate panel, and on March 20, 2014 held a hearing on this case in open court. Plaintiff Cheng Huaishan and the representatives for defendant Kunshan Public Security Bureau Lu Huanfang and Cha Wenming appeared in court to participate in the litigation. Hearings in this case have concluded.

On November 12, 2013, the Kunshan Public Security Bureau issued the Kunshan PSB (Lujia) Administrative Punishment Decision (2013) No. 6544, finding that on the afternoon of November 3, 2013 plaintiff Cheng Huaishan was discovered to have logged into the Internet QQ group "Jiangsu Democracy Group" (Group No. 273997921) from Lujia township, Kunshan, and in this QQ group he published statements defaming State leaders. The foregoing facts were confirmed through Cheng Huaishan's statements and pleadings, investigation records, on-the-scene records, and documentation. They determined to subject Cheng Huaishan to ten days administrative detention in accordance with the provisions of Paragraph 2, Article 42 of the Public Security Administrative Punishment Law of the People's Republic of China.

Plaintiff Cheng Huaishan's lawsuit claims that on the morning of November 12, 2013, police officers from the Lujia station of the Kunshan Public Security Bureau  came to his temporary residence and gave him a verbal summons to go the police station. They then interrogated him regarding certain statement of his in a QQ group which defamed the nation's leaders, and ordered him held for 10 days in administrative detention. On November 3, 2013, the plaintiff reposted the following text:
Seven wolves will convene the 18th street burial clock plenary session; the meeting will discuss the liberalization of the lambs being put out to pasture; local  beasts of prey will be responsible for a portion of the flock's expenditures; give the sheep more sovereignty over their grazing; continue reducing the approvals required for being put out to pasture; resolve the problem of mutton allotment; reform the sheep registration system, with no division between black mountain sheep and plains sheep, they are one and the same; demarcate the reform routes for Xi big wolf and Li little wolf; bring universal happiness for the shepherds,  and keep the sheep ignorant of their fate; let the chorus ring out: Fuck your mother, Damn!
Looking at the whole post, it did not mention the name of a single State leader, it only mentioned wolves and sheep, so how could it constitute defamation of State leaders? Of course, the post's text can easily allow people to make associations, but the police can't rely on mental associations when enforcing the law. Looking at this from the perspective of free speech, democratic governance means that citizens have the right to curse those who hold power, and those who hold power have a duty to be tolerant of criticism. All the more so because the post did not even directly curse anyone who holds power, and Article 35 of China's Constitution clearly provides that citizens of the People's Republic of China have the freedom of speech. The Kunshan Public Security Bureau's decision to impose administrative detention was factually flawed, made improper use of the law, and it is requested that Kunshan PSB (Lujia) Administrative Punishment Decision (2013) No. 6544 be rescinded, and the applicant receive compensation from the State for restricting his freedom of movement in the amount 1,825 yuan.

Defendant Kunshan Public Security Bureau argues that, the statements published on the QQ group by plaintiff Cheng Huaishan on November 3, 2013 using information networks openly insulted leaders of the Party and the State, and this was subsequently investigated and confirmed by public security agencies. The foregoing facts have been verified based on the statements and pleadings of the parties, on-the-scene records and information records, and the detention process.  The plaintiff's use of information networks that enable widespread and rapid  dissemination to publish statements that insulted leaders of the Party and the State constitutes a relatively severe instance of insulting third parties, and the defense attorney argue that the decision to impose ten days administrative punishment in accordance with the provisions of Paragraph 2, Article 42 of the Public Security Administrative Punishment Law of the People's Republic of China was found to be based on clear facts, a correct application of the law, and the punishment was appropriate.

Plaintiff claims that the statement made online constitute freedom of speech, and it does not matter whether or not the statements were proper.

The defense attorneys believe that freedom of speech has boundaries. Article 35 of the Constitution provides that citizens have freedom of speech, and Article 41 provides that a citizen is protected by law when offering criticisms and suggestions to State agencies and State employees. But citizens' rights must be exercised in accordance with the law, and may not infringe upon the rights of others. Article 51 provides that in exercising their freedoms and rights, citizens must not damage any State, social, or collective rights or the lawful freedoms and rights of other citizens. Although the statements made online by the plaintiff did not clearly refer to any State leader's name, it was nevertheless extremely clear what it was referring to, the statements' contents were obviously insulting, had infringed upon others' rights to dignity and reputation, exceeding the scope allowed by law, constituting illegal behavior, and responsibility should be borne in accordance with law. Based on the foregoing, they request that the court reject the lawsuit's claims.

An investigation has shown that at approximately 2:23 in the afternoon on November 3, 2013, plaintiff Cheng Huaishan, using the online name "Rare Animal" (QQ10xxx46), utilizing online information in Lujia, used a cell phone to publish the following statement on the QQ group "Jiangsu Democracy Group" (Group No. 273997921):

Seven wolves will convene the 18th street burial clock plenary session; the meeting will discuss the liberalization of the lambs being put out to pasture; local  beasts of prey will be responsible for a portion of the flock's expenditures; give the sheep more sovereignty over their grazing; continue reducing the approvals required for being put out to pasture; resolve the problem of mutton allotment; reform the sheep registration system, with no division between black mountain sheep and plains sheep, they are one and the same; demarcate the reform routes for Xi big wolf and Li little wolf; bring universal happiness for the shepherds,  and keep the sheep ignorant of their fate; let the chorus ring out: Fuck your mother, Damn!

At approximately 11:00 in the morning on November 12, 2013, after defendant Kunshan Public Security Bureau determined that the user with the online name "Rare Animal" (QQ10xxx46) was plaintiff Cheng Huaishan, they proceeded to handle the case in accordance with the law. Following an investigation, on November 12, 2013, defendant Kunshan Public Security Bureau issued the Kunshan PSB (Lujia) Administrative Punishment Decision (2013) No. 6544, and determined to subject Cheng Huaishan to ten days administrative detention in accordance with the provisions of Paragraph 2, Article 42 of the Public Security Administrative Punishment Law of the People's Republic of China.

On November 12, 2013, the defendant carried out the aforementioned punishment and transferred plaintiff Cheng Huaishan to the Kunshan Detention Center. Because plaintiff Cheng Huaishan submitted an administrative appeal application, on January 23, 2014, the Kunshan Municipal Government issued Kunshan Government Administrative Review No. 6, upholding the Kunshan PSB (Lujia) Administrative Punishment Decision (2013) No. 6544 decision.

This court finds that, in accordance with Clause 1, Paragraph 7 of Article 2 of the Public Security Administrative Punishment Law of the People's Republic of China, public security bureaus of the people's government at the level of county and above are responsible for public security administrative punishments within their administrative districts relating to disturbing public order, harming public security, infringements of personal and property rights, harming social management where there is social harm that does not rise to the level requiring criminal sanctions. Because the defendant Kunshan Public Security Bureau is responsible for public security administration work in this jurisdiction, it is the appropriate defendant in this case.

The point of dispute in this case is whether the content of the post published by plaintiff Cheng Huaishan at issue in this case does in fact constitute relatively severe insult and defamation of a third party. In accordance with the provisions of Paragraph 2, Article 42 of the Public Security Administrative Punishment Law of the People's Republic of China, insult or fabrication of facts to defame a third party may be punished by detention of five days or less or a fine of no more than 500 yuan. Where the circumstances are severe, a punishment of between five and 10 days detention and a fine of no more than 500 yuan may be imposed.

Insult refers to words and actions that harm the reputation or personal dignity of a third party. Defamation refers to distorting and spreading falsehoods which harm the reputation or personal dignity of a third party.

The plaintiff in this case Cheng Huaishan used an online alias to post content which, while not explicitly naming any State leader, nevertheless included content that was obviously insulting and defamatory, and its target was both specific and unique, and based on the timing of the post and the related content, it was entirely obvious who it was about.

Plaintiff's utilization of networks for fast and broad dissemination of the aforementioned statements that insulted national leaders falls within the scope of insulting and defaming third parties as provided in the aforementioned law, and the circumstances were relatively severe. The administrative punishment issued by defendant Kunshan Publish Security Bureau was lawful.

Plaintiff believes that his statements were the exercise of free speech as provided for in the Constitution. This court holds that the Constitution of the People's Republic of China provides that citizens of the People's Republic of China have freedom of speech, and that have the right to make criticisms and suggestions to State agencies and State employees. But it also provides that the personal dignity of citizens of the People's Republic of China may not be infringed upon, and prohibits insult, defamation, or false claims against citizens by any means. When exercising their freedoms and rights, citizens must not damage any State, social, or collective rights or the lawful freedoms and rights of other citizens. Therefore the defense statement of plaintiff Cheng Huaishan is rejected.

In handling the aforementioned case, defendant Kunshan Public Security Bureau conducted its inquiries and investigation of the defendant within 24 hours, and on November 12, 2013 imposed administrative punishment and carried out the procedures in the manner prescribed by law. The prerequisite for administrative compensation is that the legal rights and interests of a citizen, legal person or other organization has been infringed upon by a specific administrative act performed by an administrative agency or an employee thereof. The administrative acts of the defendant did not infringe upon the legal rights and interests of plaintiff Cheng Huaishan. Plaintiff's contention that defendant's administrative acts were illegal and request for personal compensation is without factual or legal basis.

Based on the foregoing, in accordance with the provisions of Article 56(4) of the Supreme People's Court's Interpretation Regarding Certain Issues Relating to the Implementation of the Administrative Litigation Law of the People's Republic of China and Article 33 of the Supreme People's Court's Rules Regarding Certain Issues Relating to Adjudicating Administrative Compensation Cases, it is hereby decided as follows:

Plaintiff Cheng Huaishan's claims in his lawsuit are rejected.

Court costs in the amount of 50 yuan will be borne by the plaintiff Cheng Huaishan.

If he does not agree with this decision, he may submit an appeal to this court within 15 days of this issuance of this judgment, with the number of copies based on the number of opposing parties. The court of appeal shall be the Jiangsu Intermediate People's Court.

Judge: Li Shiyin
Acting Judge: Zhou You
People's Assessor: Wang Guixiang

May 12, 2014

Clerk: Jin Yufang

成怀山与江苏省昆山市公安局行政公安其他一审行政判决书

江苏省昆山市人民法院
行政判决书
(2014)昆行初字第0015号

原告成怀山。
被告昆山市公安局,住所地江苏省昆山市前进西路1288号,组织机构代码01418924-6。

原告成怀山诉被告昆山市公安局治安行政处罚一案,本院于2014年2月14日受理后,于2014年2月14日向被告送达了起诉状副本及应诉通知书。本院依法组成合议庭,于2014年3月20日公开开庭审理了本案,原告成怀山,被告昆山市公安局的委托代理人陆迎芳、查文明到庭参加诉讼。本案现已审理终结。
  
被告昆山市公安局于2013年11月12日作出昆公(陆家)行罚决字(2013)6544号行政处罚决定书,认为原告成怀山于2013年11月3日下午,在昆山市陆家镇登陆互联网QQ群“江苏民主群”(群号273997921),在该QQ群内发布公然侮辱国家领导人的言论,被查获。以上事实有成怀山的陈述和申辩、检查笔录、现场笔录、书证等证据证实。根据《中华人民共和国治安管理处罚法》第四十二条第二项之规定,决定对成怀山处行政拘留十日的处罚。

原告成怀山诉称,2013年11月12日上午,昆山市公安局陆家派出所警察到其暂住地口头传唤其至派出所,并进行了询问以其在QQ群里公然发布侮辱国家领导人的言论作出行政拘留10天的决定。2013年11月3日,原告在QQ群里转发了这样一个帖子:七头狼要召开十八街葬钟全会;与会讨论羊的放牧自由化;地方鹰犬负担部分羊圈支出;给予羊更大的吃草自主权;继续减少放牧审批环节;解决羊肉分配问题;改革羊户籍制度,不区分黑山羊与草原羊,一事同羊;制定刁得一狼与李子狼改革路线图;羊倌们喜大普奔,众羊们不明觉厉;纷纷喊道:开你妈逼,草!

通观全贴,没有提到任何国家领导人的名字,只提了狼和羊,怎么就构成对国家领导人的侮辱呢?当然,帖中的文字很易让人联想,但公安机关办案不能靠联想执法。从言论自由的角度看,民主政治就是民众有骂掌权者的权利,掌权者有容忍被骂的义务。何况帖子中根本没有直接骂掌权者,我国宪法第三十五条也明确规定中华人民共和国公民有言论自由。昆山市公安局作出的行政拘留决定认定事实错误,适用法律错误,请求依法撤销昆公(陆家)行罚决定(2013)6544号行政处罚决定书,赔偿申请人人身自由限制国家赔偿金1825元。
  
被告昆山市公安局辩称,2013年11月3日,原告利用信息网络在QQ群发表的言论,对党和国家领导人进行公然的侮辱,后被公安机关查获。上述事实由当事人的陈述和申辩、现场笔录和消息记录、抓获经过等证据证实。原告利用扩散范围广、传播速度快的信息网络发布侮辱党和国家领导人的言论属于侮辱他人情节较重的情形,答辩人依照《中华人民共和国治安管理处罚法》第四十二条第二项的规定对原告作出行政拘留十日的行政处罚决定,认定事实清楚,适用法律正确,处罚适当。原告称网络上发表言论属于言论自由,而不论言论是否正确。答辩人认为,言论自由是有边界的。《宪法》第三十五条规定公民有言论自由,第四十一条规定公民对于国家机关和国家工作人员提出批评和建议,受法律保护。但公民权利必须依法行使,不得侵犯他人权利。第五十一条规定公民在行使自由和权利的时候,不得损害国家的、社会的、集体的利益和其他公民的合法自由和权利。原告在网络上所发的言论虽然没有明确提到国家领导人名字,但是所指十分明确,言论中含有明显的侮辱内容,已造成了对他人人格尊严与名誉的侵犯,超出法律的范围,属于违法行为,应承担相应法律责任。综上所述,请求法院判决驳回诉讼请求。

经审理查明,2013年11月3日14:23许,原告成怀山以其网名“稀有动物”(QQ10×××46)在陆家镇利用网络信息,通过手机在QQ群“江苏民主群”(群号273997921)内发表了“七头狼要召开十八街葬钟全会;与会讨论羊的放牧自由化;地方鹰犬负担部分羊圈支出;给予羊更大的吃草自主权;继续减少放牧审批环节;解决羊肉分配问题;改革羊户籍制度,不区分黑山羊与草原羊,一事同羊;制定刁得一狼与李子狼改革路线图;羊倌们喜大普奔,众羊们不明觉厉;纷纷喊道:开你妈逼,草!”的言论。
  
2013年11月12日11时许,被告昆山市公安局查明网名“稀有动物”(QQ10×××46)的使用人为原告成怀山后,依法予以立案处理。经调查后,被告昆山市公安局于2013年11月12日作出昆公(陆家)行罚决字(2013)6544号行政处罚决定书,根据《中华人民共和国治安管理处罚法》第四十二条第二项之规定,决定对成怀山处行政拘留十日的处罚。

2013年11月12日,被告将原告成怀山交昆山市拘留所执行上述拘留处罚。因原告成怀山提起行政复议申请,昆山市人民政府于2014年1月23日作出(2014)昆府行复第6号行政复议决定书,维持了昆公(陆家)行罚字(2013)6544号行政处罚决定书。
  
本院认为,根据《中华人民共和国治安管理处罚法》第二条、第七条第一款的规定,县级以上地方各级人民政府公安机关负责本行政区域内的有关扰乱公共秩序,妨害公共安全,侵犯人身权利、财产权利,妨害社会管理,具有社会危害性,尚不够刑事处罚的治安管理处罚工作。由此本案被告昆山市公安局负责本辖区内治安管理工作,是本案的适格被告。
  
本案的争议焦点是原告成怀山在网络发表涉案内容帖子是否属于公然侮辱、诽谤他人情节较重的行为。《中华人民共和国治安管理处罚法》第四十二条第(二)项规定,公然侮辱他人或者捏造事实诽谤他人的, 处五日以下拘留或者五百元以下罚款;情节较重的,处五日以上十日以下拘留,可以并处五百元以下罚款。

侮辱是指以言行公然损害他人名誉、人格尊严的行为;诽谤是指捏造并散布虚构的事实,损害他人名誉、人格的行为。

本案中原告成怀山用其网名所发帖子内容虽然没有明确指出国家领导人的名字,但从其网贴发表的时间及相关内容看,所指十分明确,含有明显的侮辱、诽谤内容,且指向具有特定性和唯一性。

原告利用传播快、范围广的网络发布上述侮辱国家领导人的言论,属于上述法律规定的公然侮辱、诽谤他人,且情节较重情形。被告昆山市公安局据此作出的行政处罚适用法律正确。

原告认为其言论属于宪法规定的言论自由行为,本院认为,《中华人民共和国宪法》规定了中华人民共和国公民有言论的自由,对于任何国家机关和国家工作人员,有提出批评和建议的权利,但同时亦规定中华人民共和国公民的人格尊严不受侵犯,禁止用任何方法对公民进行侮辱、诽谤和诬告陷害,公民在行使自由和权利的时候,不得损害国家的、社会的、集体的利益和其他公民的合法的自由和权利。因此原告成怀山的辩论意见不予支持。
  
被告昆山市公安局受案处理上述涉案后,在二十四小时内对原告进行了询问、调查,并于2013年11月12日作出行政处罚,并交所执行的程序符合法定程序。行政赔偿的前提是公民、法人或者其他组织的合法权益受到行政机关或者行政机关工作人员作出的具体行政行为侵犯并造成损害,本案中被告昆山市公安局对原告成怀山作出的涉案行政处罚并无不妥,即被告的行政行为并未侵犯原告成怀山的合法权益,原告认为被告行政行为违法并要求人身赔偿的请求无事实及法律依据。

综上,依照《最高人民法院关于执行﹤中华人民共和国行政诉讼法﹥若干问题的解释》第五十六条第(四)项、《最高人民法院关于审理行政赔偿案件若干问题的规定》第三十三条的规定,判决如下:
  
驳回原告成怀山的诉讼请求。
  
案件受理费50元,由原告成怀山负担。
  
如不服本判决,可在判决书送达之日起十五日内,向本院递交上诉状,并按对方当事人的人数提出副本,上诉于苏州市中级人民法院。

审 判 长: 李诗茵
代理审判员: 周 游
人民陪审员: 王桂香

二O一四年五月十二日

书 记 员: 晋玉芳

Tuesday, February 14, 2017

Man Given Five Days in Jail for Tencent Wechat Posts That "Openly Insulted National Leaders."

According to a judgment issued by the Guangzhou Municipal Intermediate People's Court in December 2015 (translated below) Guo Jianhe was sentenced to five days administrative detention for using Tencent’s Wechat service (also known as Weixin) to post statements that “openly insulted national leaders.” Guo's sentence was imposed by officials at a local police station based their determination that he had violated China’s “Public Security Administrative Punishment Law.” The court did not specify what Guo posted.

The original decision is available on the court's website here: http://wenshu.court.gov.cn/content/content?DocID=d1ffe665-32b2-4465-8ac4-2979c1e43143

Guo Jianhe vs. Guangzhou Yuexiu District Public Security Bureau et. al.
Administrative Judgment in the Court of Second Instance

Guangzhou Municipal Intermediate People's Court, Guangdong Province
Administrative Judgment
(2015) Sui Intermediate Administrative Final Judgment No. 1374

Appellant (original plaintiff): Guo Jianhe, resident of Guangzhou.
Appellee (original defendant): Guangzhou Yuexiu District Public Security Bureau, based in Guangzhou.
Legal Representative: Cai Wei, position: Bureau Commander.
Attorney: Zhou Peixin, employee at the Bureau.
Attorney: Huang Weifeng, employee at the Bureau.

Appellant Guo Jianhe sued appellee Guangzhou Yuexiu District Public Security Bureau regarding a public security administrative punishment, and filed an appeal with this court on the grounds that he did not agree with the Yuexiu District People's Court's (2015) Sui Yue Administrative First Instance No. 152 administrative judgment. This court convened a judicial panel  and commenced hearings in this case. Hearings in this case have now concluded.

The court of first instance made the following determinations during trial: On January 27, 2015, plaintiff Guo Jianhe used Wechat account No. 130xxxx8717 (cell phone No. 130xxxx8717) to repost statements to friend groups that openly insulted national leaders. As of January 30, 2015, the plaintiff's Wechat account address book contained 697 contacts. The defendant summoned the plaintiff to appear at the Zhuguang police station in Yuexiu, Guangzhou, and following an investigation ascertained the foregoing facts. After determining that the plaintiff had reposted statements to friend groups that openly insulted national leaders, it informed the plaintiff of the facts, reasoning, and basis for making a determination to impose punishment, as well as of his right to make statements and offer a defense. On the 30th of that month the defendant issued Sui Gong Yue Administrative Punishment (2015) No. 00491 "Administrative Punishment Decision" in accordance with the provisions of Article 42(2) of the "Public Security Administration Punishments Law," ordering the plaintiff be sentenced to five days of administrative detention. The plaintiff did not agree with the foregoing punishment decision, and filed an appeal with the court of first instance.

The court of first instance held: Article 42(2) of the "Public Security Administrative Punishment Law" provides:  "A person who commits one of the following acts shall be detained for not more than five days or be fined not more than 500 yuan; and if the circumstances are relatively serious, he shall be detained for not less than 5 days but not more than 10 days and may, in addition, be fined not more than 500 yuan: . . . (2) openly insulting another person or fabricating facts to defame another person; . . . ."

The plaintiff in this case reposted statements to friends groups that openly insulted others, the defendant determined that the facts were clear and the evidence sufficient to show that the plaintiff's actions were illegal, and the punishment decision issued following the defendant's investigation of the facts underlying the illegal actions of the plaintiff complied with the aforementioned provisions. The reasoning underlying the plaintiff's request to revoke the punishment decision was not sufficient, and it was therefore rejected by the court of first instance.

In summary, in accordance with Article 56(4) of the "Supreme People's Court's Interpretation Regarding Certain Issues Relating to the Implementation of the Administrative Litigation Law'" the court held that plaintiff's request was denied.

Appellant Guo Jianhe did agree with the judgment of the court of first instance, and appealed to this court claiming: the weixins that the appellant reposted to his friends groups were within the right to freedom of speech granted under the Constitution. The Sui Gong Yue Administrative Punishment (2015) No. 00491 "Administrative Punishment Decision" lacked sufficient evidence, and the court of first instance ignored the appellant's demand that the appellee produce evidence of the fact that the appellant openly insulted national leaders. Appellant did not openly insult national leaders, and the facts acknowledged by the court of first instance were not clear. The appellant therefore requests:

1. Overturn the Yuexiu District People's Court's (2015) Sui Yue Administrative First Instance No. 152 "Administrative Judgment."
2. Revoke the appellee's Sui Gong Yue Administrative Punishment (2015) No. 00491 "Administrative Punishment Decision."
3.  Order the appellee to bear the litigation costs of the first and second trials.

The appellee Guangzhou Yuexiu District Public Security Bureau agrees with the judgment in trial of first instance, and asks that it be upheld in the trial of second instance.

Based on hearings it has been determined that the facts acknowledged by the court of first instance were clear, and furthermore are supported by the relevant evidence, and are affirmed by this court.

This court finds that Article 42(2) of the "Public Security Administrative Punishment Law" provides:  "A person who commits one of the following acts shall be detained for not more than five days or be fined not more than 500 yuan; and if the circumstances are relatively serious, he shall be detained for not less than 5 days but not more than 10 days and may, in addition, be fined not more than 500 yuan: . . . (2) openly insulting another person or fabricating facts to defame another person; . . . ." In this case the appellant openly fabricated facts online and posted statements that insulted national leaders. There are interrogation records, investigation records, photographs, and other supporting evidence. In accordance with the law, prior to issuing its administrative punishment decision the appellee had informed the appellant of the facts, reasoning, and basis, and also informed him of his right to make statements and offer a defense. Appellant stated that he would not make any statements or offer any defense.

Therefore, as regards the appellee's issuance of an administrative punishment decision, and the decision to sentence appellant to five days of administrative detention, the facts as determined are clear, the evidence is sufficient, the procedures were lawful, and the punishment was appropriate.

The judgment of the court of first instance to reject the appellant's request was handled correctly, and is upheld by this court. Appellant's appeal lacked justification and motivation for his belief that the appellee's determinations of fact were not clear, and this court rejects his requests on appeal.

In summary, in accordance with the provisions of Article 89(1)(i) of the "Administrative Litigation Law" it is hereby held:

The appeal is rejected, the first instance judgment is affirmed.

The second instance case filing fee of 50 yuan shall be borne by the appellant Guo Jianhe.

This judgment shall be the judgment of last instance.

Presiding Judge: Wang Yi
Acting Judicial Officer: Tang Yong
Acting Judicial Officer: Yu Qiubai

November 14, 2015

Clerk: Zhou Zhinuo

郭建和与广州市公安局越秀区分局其他
二审行政判决书

广东省广州市中级人民法院
行 政 判 决 书
(2015)穗中法行终字第1374号

上诉人(原审原告):郭建和,住广州市。
被上诉人(原审被告):广州市公安局越秀区分局,住所地广州市。
法定代表人:蔡巍,职务:局长。
委托代理人:周培新,该局工作人员。
委托代理人:黄伟峰,该局工作人员。

上诉人郭建和诉被上诉人广州市公安局越秀区分局治安行政处罚一案,不服广州市越秀区人民法院(2015)穗越法行初字第152号行政判决,向本院提起上诉。本院依法组成合议庭,开庭审理了本案。本案现已审理终结。

原审法院经审理查明:2015年1月27日,原告郭建和使用微信号130××××8717(手机号130××××8717)在朋友圈转发公然侮辱国家领导人的言论,截至2015年1月30日,原告微信账户通讯录共有697位联系人。被告将原告传唤至广州市公安局越秀区分局珠光派出所,经调查查明上述事实,遂认定原告在微信圈转发公然侮辱国家领导人的言论,告知原告拟作出处罚决定的事实、理由、依据及陈述和申辩的权利。同月30日,被告依据《中华人民共和国治安管理处罚法》第四十二条第二项之规定,作出穗公越行罚决字(2015)00491号《行政处罚决定书》,决定对原告处以行政拘留五日。原告对上述处罚决定不服,诉至原审法院。

原审法院认为:《中华人民共和国治安管理处罚法》第四十二条第二项规定:“有下列行为之一的,处五日以下拘留或者五百元以下罚款;情节较重的,处五日以上十日以下拘留,可以并处五百元以下罚款:……(二)公然侮辱他人或者捏造事实诽谤他人的;……”本案原告在微信朋友圈转发公然侮辱他人的言论,被告认定原告违法行为的事实清楚、证据充分,被告查明原告该违法事实后作出的处罚决定符合上述有关规定,原告请求撤销该处罚决定的理由不充分,原审法院不予采纳。综上所述,依照《最高人民法院关于执行〈中华人民共和国行政诉讼法〉若干问题的解释》第五十六条第(四)项,判决驳回原告郭建和的诉讼请求。

上诉人郭建和不服原审判决,上诉至本院称:上诉人在朋友圈转发微信是宪法赋予公民言论自由的权利。被上诉人作出穗公越行罚决字(2015)00491号《行政处罚决定》的证据不足,原审判决对上诉人提出要被上诉人拿出上诉人公然侮辱国家领导人的事实证据的要求,置之不理。上诉人没有公然侮辱国家领导人,原审判决认定事实不清。故上诉人请求:1、撤销广州市越秀区人民法院(2015)穗中法行初字第152号《行政判决书》;2、撤销被上诉人作出的穗公越行罚决字(2015)00491号《行政处罚决定》;3、一、二审案件诉讼费由被上诉人承担。

被上诉人广州市公安局越秀区分局答辩同意一审判决,请求二审法院予以维持。

经审理查明,原审法院认定事实清楚,且有相应的证据予以支持,本院予以确认。

本院认为,《中华人民共和国治安管理处罚法》第四十二条第二项规定:“有下列行为之一的,处五日以下拘留或者五百元以下罚款;情节较重的,处五日以上十日以下拘留,可以并处五百元以下罚款:……(二)公然侮辱他人或者捏造事实诽谤他人的;……”本案上诉人在网络上公然捏造事实,发布侮辱国家领导人的言论,有询问笔录、检查笔录和照片等证据证实,被上诉人在作出行政处罚决定前,已依法告知上诉人作出行政处罚决定的事实、理由及依据,并告知其依法享有陈述、申辩等权利,上诉人表示不提出陈述和申辩。因此被上诉人作出被诉行政处罚决定,决定对上诉人处以行政拘留五日,认定事实清楚、证据充分,程序合法,处罚适当。原审法院判决驳回上诉人诉讼请求的处理正确,本院予以维持。上诉人认为被上诉人查明事实不清的上诉理由理据不足,其上诉请求本院不予支持。综上所述,依照《中华人民共和国行政诉讼法》第八十九条第一款第(一)项的规定,判决如下:

驳回上诉,维持原判。

二审案件受理费50元,由上诉人郭建和负担。

本判决为终审判决。

审 判 长 汪 毅
代理审判员 唐 勇
代理审判员 余秋白

二〇一五年十一月十四日

书 记 员 周芷诺

Thursday, February 9, 2017

China Professor Decries Political Censorship by "Foreign Company" Tencent

On July 18, 2016, the state sponsored Global Times published an article entitled "Scholar Wants Foreign Capital Expelled From China’s Social Media." Some excerpts:
Zhang Hongliang, a professor at Beijing's Minzu University of China, said on his WeChat account on Saturday that he is preparing to sue Chinese Internet titan Tencent for yielding to commercial pressure to "arbitrarily" block public WeChat posts. Tencent - WeChat's parent company, whose largest shareholder is MIH Group, a subsidiary of South African media group Naspers - recently threatened to shut down Zhang's public account when he released a post denouncing Chinese specialty beverage maker JDB Group Ltd for defaming war hero Qiu Shaoyun, Zhang said.
. . . .
Many people share Zhang's worries, especially after posts and comments criticizing actress-turned-director Zhao Wei for inviting a suspected Taiwan separatist to act in her new movie - including posts by the Central Committee of the Communist Youth League of China - quickly disappeared from Weibo and major news portals, according to news site globalview.cn.  
"Netizens were shocked. Capital is so powerful that they can block any kind of voice they dislike," globalview.cn said in a commentary on Friday.
For background on the Qiu Shaoyun (邱少云) case referred to above, see Supreme People's Court Model Case: Joking About Dead Heroes Is Defamation.

Here are some excerpts from Zhang Hongliang's (张宏良) article published on the National Revival Web on July 16, 2016 entitled "Resolutely Defend Revolutionary Martyrs, Ban Foreign Enterprises From Regulating Citizens' Speech" (坚决捍卫革命烈士,严禁外企裁决公民言论):
Yesterday morning, July 15, the Beijing Daxing Court issued a judgment in the case of an ultra-rightist elitist and the Jia Duo Bao company smearing and vilifying Qiu Shaoyun. But it seemed as though the media maintained their silence. Previously myself and the National Revival Web had published articles appealing on this matter, appealing for everyone to defend the reputation of national heroes who became revolutionary martyrs by sacrificing their lives to give us the happy lives we enjoy today. But this article that called for the defense of the martyr Qiu Shaoyun did not get reposted on a single website other than National Revival Web. 
After Tencent saw this situation, they directly warned the author that they would completely shut down the Weixin public account of Zhang Hongliang if he published another article that was critical of Jia Duo Bao. I have already spoken with a lawyer, and I am preparing to sue Tencent. But while we were speaking, my feeling was that the most infuriating and tragic aspect of this was not the fact that an ultra-rightist had vilified a revolutionary martyr, nor was it the fact that Jia Duo Bao had offered a prize of 100,000 cans of tea to vilify a martyr, nor was it Tencent's high-handedness.  
Rather, it is the fact that China's government has handed over to a foreign invested company the power to make decisions about the rights of Chinese citizens to debate China's national affairs, and foreign invested companies get to decide what Chinese citizens can and cannot say.  
One can only say that this is China's greatest tragedy. 
To allow a foreign invested company to make determinations about the political speech of a a nation's citizens is something without precedent in human history for any independent country. No country, not even those so-called free and democratic Western countries, would permit private companies to interfere with, and make determinations about, citizens' speech. 
昨天7月15日上午,北京市大兴法院对极右精英和加多宝公司污蔑和妖魔化邱少云一案进行审判。可是几乎所有媒体都保持沉默,此前本人和民族复兴网曾经撰文呼吁,呼吁大家捍卫用生命换取了我们今天幸福生活的革命烈士的民族英雄的名誉。可是这篇呼吁捍卫邱少云烈士的文章,除了民族复兴网之外,没有一家网站给予转载。
   
腾讯见此情况后,直接警告作者,如果再发文批判加多宝,将彻底关闭张宏良的微信公众号。本人已与律师沟通,准备与腾讯打官司。只是在沟通期间感到,最为令人愤怒和悲哀的,还不是极右分子妖魔化革命烈士,也不是加多宝公司公开奖赏妖魔化烈士的人10万罐饮料,以及腾讯公司的霸道,而是中国政府居然把中国公民议论国家事务的权利,交给一家外资公司来裁决,由外资公司来裁决中国公民该说什么不该说什么。这不能不说是中国的最大悲哀。
由外资公司来裁决一个国家的公民的政治言论,这是人类历史上所有主权独立国家中前所未有的现象。包括在所谓自由民主的西方国家,都绝不允许私人公司干涉并裁决公民言论。

Tuesday, February 7, 2017

Baidu and Alibaba Ban Some Taiwan and Hong Kong Artists

Wu Nien-jen (吴念真) is a scriptwriter, director, and author from Taiwan. This screenshot was taken on January 24, 2017, and shows that search for his name on Baidu’s PostBar (Tieba 贴吧) forum returns a notice that says: “Apologies, in accordance with relevant laws, regulations, and policies, this forum cannot be opened at this time” (抱歉,根据相关法律法规和政策,本吧暂不开放).



Link: http://tieba.baidu.com/f?ie=utf-8&kw=%E5%90%B4%E5%BF%B5%E7%9C%9F

Bobby Chen (陈升) is a singer and record producer from Taiwan.  This screenshot was taken on January 24, 2017, and shows that search for his name on Baidu’s PostBar (Tieba 贴吧) forum returns a notice that says: “Apologies, in accordance with relevant laws, regulations, and policies, this forum cannot be opened at this time” (抱歉,根据相关法律法规和政策,本吧暂不开放).



Link: http://tieba.baidu.com/f?ie=utf-8&kw=%E9%99%88%E5%8D%87

Hindsight (光景消逝) is a band based in Taiwan. This screenshot was taken on January 24, 2017, and shows that a search for its name on Alibaba’s Xiami music service returns a notice that says “In accordance with relevant laws, regulations, and policies, search results have not been displayed” (根据相关法律法规和政策,搜索结果未予展示).



Link: http://www.xiami.com/search?key=%E5%85%89%E6%99%AF%E6%B6%88%E9%80%9D

King Ly Chee (荔枝王) is a band based in Hong Kong. This screenshot was taken on January 24, 2017, and shows that a search for its name on Alibaba’s Xiami music service returns a notice that says “In accordance with relevant laws, regulations, and policies, search results have not been displayed” (根据相关法律法规和政策,搜索结果未予展示).



Link: http://www.xiami.com/search?key=%E8%8D%94%E6%9E%9D%E7%8E%8B

Wednesday, January 18, 2017

Government Calls Out Sina Blogs for "Distorting Party History"

On January 7, 2017, the the Cyberspace Administration of China published a notice on its website entitled "Sina, Global Times, China.com, and Other Websites Post Harmful Information in Violation of Rules, Get Reported by China's Internet Users" (新浪网、环球网、中华网等网站违规刊载有害信息 受到网民集中举报). Some excerpts:
In 2016, the the China Internet Illegal Information Reporting Center (hereinafter "Reporting Center") received almost 1,000,000 reports from the public. These included reports that Sina, Global Times, Netease, China.com, Voice of China, Shangdu, Tom.com, and Chongqing Online were publishing harmful information in violation of rules, or were providing a platform for the publication of harmful information. There was a strong negative public reaction.
. . . .
Based on user reports and a selective examination by the Reporting Center, various channels on Sina included vulgar and revealing photos, text and information, and there was a relatively large quantity of posts on Sina blogs that distorted Party and national history, spread evil cults and promoted pornographic videos. 
Netease's "Headline Party" problem was particularly acute, and in an attempt to attract eyeballs it would maliciously distort headlines, publish articles selectively, exaggerate facts, and mislead the public. 
Some of the articles on the Global Times used vulgar and exotic language to attract readers, and had a harmful orientation. There was a lack of effective moderation of comments, and some comments were extremist and spread rumors.  
2016年,国家互联网信息办公室违法和不良信息举报中心(以下简称“举报中心”)共受理公众举报近百万件次,其中,新浪网、环球网、网易网、中华网、华声在线、商都网、TOM网、重庆热线8家网站违规刊载有害信息,或为有害信息传播提供平台,网民举报集中,社会反应强烈。
. . . .
根据公众举报及举报中心抽查,新浪个别频道存在低俗暴露图文信息,新浪博客中存在较多歪曲党史国史、宣扬邪教及推介色情AV的帖文。网易“标题党”问题突出,为博人眼球,恶意篡改标题、选择性报道,夸大事实,误导公众。环球网一些文章用低俗、猎奇字眼吸引读者,导向不良;跟帖评论缺乏有效管理,一些跟帖言论偏激、传播谣言。