Monday, January 4, 2021

Translation: Judgment in the Case of Citizen Journalist Zhang Zhan's Reporting on the Novel Coronavirus Outbreak in Wuhan

People's Court of Pudong, Shanghai

Criminal Judgment

(2020) Hu 0115 Criminal First Instance No. 4002

The public prosecution agency was the People's Procuratorate of Pudong, Shanghai.

Defendant Zhang Zhan, female, born [INTENTIONALLY DELETED], 1983 in Sanyuan County, Shaanxi Province, Han ethnicity, master's degree, unemployed, household registration [INTENTIONALLY DELETED], Pudong, Shanghai, residing at [INTENTIONALLY DELETED], Pudong New District, Shanghai. In August 2018, she was issued a warning by the Public Security Bureau of Hangkou, Shanghai for using the international Internet to spread incitements of subversion of state power. In April 2019, she was detained for one day by the Public Security Bureau of Pudong, Shanghai for disturbing the peace. In November 2019, she was subjected to 10 days administrative detention by the Public Security Bureau of Huangpu, Shanghai for disturbing public order. On May 15, 2020, she was taken into criminal detention by the Public Security Bureau of Pudong, Shanghai on suspicion of committing the crime of disturbing the peace, and on June 19 of the same year she was arrested in accordance with the law. She is currently being held in detention at the Pudong Detention Center in Shanghai.

Defense counsel Ren Quanniu, of the Henan Guidao Law Firm.

Defense counsel Zhang Keke, of the Hubei Peng Lai Law Firm.

In the Hu Pu No. 1 Procuratorate Criminal Indictment (2020) No. 6701 indictment the People's Procuratorate of Pudong, Shanghai charged defendant Zhang Zhan with committing the crime of disturbing the peace, and on September 16, 2020 filed a public prosecution with this Court. This Court open a case on the same day, and in accordance with the law utilized standard procedures, formed a collegial panel, and tried this case in open court. The People's Procuratorate of Pudong, Shanghai assigned Procurator Chen Gang to appear in court in support of the public prosecution, and defendant Zhang Zhan and her defense counsels Ren Quanniu and Zhang Keke participated in the proceedings. During this time the trial period was extended for three months with authorization from  the First Intermediate People's Court of Shanghai. The trial has now concluded.

The People's Procuratorate of Pudong, Shanghai charged: On February 3, 2020, defendant Zhang Zhan entered Wuhan, Hubei, and subsequently published a large amount of false information in text and video through WeChat, "twitter" (Tui Te), "YouTube" (You Guan) and other online media, and she accepted interviews from foreign media "Radio Free Asia" and "The Epoch Times," and she maliciously hyped up the new coronavirus pneumonia epidemic in Wuhan. The audience was large and the influence was pernicious.

In order to substantiate the aforementioned charges, the public prosecution agency read and produced in court relevant witness testimony, forensic opinions and other documentary evidence. Based on that, it believes that Zhang Zhan should be held criminally liable for disturbing the peace, and requests this Court pass sentence in accordance with the law.

In court during the trial, defendant Zhang Zhan denied the offenses charged in the indictment. Her  defense counsel raised an objections to jurisdiction, and believed that problems existed with the evidence in this case, and that it was not possible to confirm that the information in the text and videos dispatched by defendant Zhang Zhan could be deemed false information, and the the texts dispatched by defendant Zhang Zhan were a record of her personal experience in Wuhan, and there was no fabricated false information, and even if there are certain errors or omissions in the content, it is still within a tolerable range, and the defendant should not be held criminally liable for disturbing the peace.

It was ascertained at trial: On February 3, 2020, defendant Zhang Zhan entered Wuhan, Hubei, and subsequently published a large amount of false information in text and video through WeChat, "twitter" (Tui Te), "YouTube" (You Guan) and other online media, she accepted interviews from foreign media "Radio Free Asia" and "The Epoch Times," and she maliciously hyped up the new coronavirus pneumonia epidemic in Wuhan. The audience was large and the influence was pernicious.

On May 14, 2020, defendant Zhang Zhan was apprehended and brought to justice in Wuhan, Hubei.

The aforementioned facts were produced and examined in court, and were substantiated by this Court based on the following evidence:

1. The testimony of witnesses Huang Qian, Chen Youwen, Cheng Yi, Hou Li, Hao Junfeng, and Wang Gongxi and photographs of relevant articles confirmed that in mid-February 2020 Zhang Zhan used WeChat to send to them and others commentary articles with content that pertained to Wuhan's prevention and control of the novel coronavirus infectious pneumonia epidemic.

2. The testimony of witnesses He Guangyun and Ge Xingfu and WeChat images of articles confirmed that Zhang Zhan posted in her friends circles many documentary and commentary articles with content that pertained to Wuhan's prevention and control of the novel coronavirus infectious pneumonia epidemic.

3. The testimony of witnesses Wang Dingbang and Zhang Ming  and WeChat images of articles confirmed that Zhang Zhan posted in her friends circles and WeChat groups many  documentary and commentary articles that pertained to the prevention and control of the novel coronavirus infectious pneumonia outbreak in Wuhan.

4. The testimony of witness Jiang Fan and the summary of donated materials issued by the Dadongmen Community Residents Committee of Shouyi Road, Wuchang District, the collection of mask materials, the distribution of donated vegetables, the detailed list of distribution of Shouyi Road Street, and the distribution of materials confirmed by Jiang Fan as Wuhan The Secretary of Dadongmen Community, Shouyi Road, Wuchang District, provided a detailed explanation of the epidemic prevention measures, personnel composition, community material supply, government subsidies, and nucleic acid testing in the prevention and control of the novel coronavirus infectious pneumonia epidemic in the community where he is located.

5. The testimony of witness Yang Yi confirmed Yang Yi, as a community security team member of Shouyi Road, Wuchang District, Wuhan City, provided a detailed explanation of the epidemic prevention measures, personnel composition, management methods, distribution of epidemic prevention materials, and nucleic acid testing in the prevention and control of the novel coronavirus infectious pneumonia epidemic in the community where he is located.

6. The testimony of witness  Hu Xiaoping  confirmed  Hu Xiaoping, as an ordinary community resident in Wuchang District, Wuhan City provided a detailed explanation of the epidemic prevention measures, management personnel, distribution of epidemic prevention materials, distribution of daily supplies, and nucleic acid testing in the prevention and control of the novel coronavirus infectious pneumonia epidemic in the community where he is located.

7. The testimony of witness Sun Weijun and relevant WeChat chat records, tomb sales slips, resident death medical proof (inference) certificates confirmed Sun Weijun, as a staff member of Wuhan Longquanshan Xiaoenyuan Co., Ltd. at the Longquanshan Xiaoenyuan Cemetery during the outbreak of the novel coronavirus infectious pneumonia epidemic in Wuhan provided a detainled explanation of the the cemetery sales work process, actual situation and government subsidies. At the same time, he also provided an explanation of the nucleic acid testing carried out in Wuhan during the epidemic.

8. The testimony of witness Zhang Xiaobing confirmed that he is a shopkeeper at the Chuangxiang Shuzhu in Wuchang District, Wuhan. After the outbreak of the novel coronavirus infectious pneumonia epidemic in Wuhan, the government department required his stores to only engage in door-to-door delivery business for epidemic prevention purposes. On March 4, 2020, the staff of the street industry and commerce department discovered that he had not strictly implemented door-to-door delivery regulations, and they decided to seize his business license. After being educated by industry and commerce personnel, he took the initiative to hand over his business license to industry and commerce law enforcement personnel. At the same time, he also provided an explanation of the nucleic acid testing carried out in Wuhan during the epidemic.

9. The search warrants, search records, seizure decision certifications, and seizure lists produced by the Public Security Bureau of Pudong, Shanghai confirmed the circumstances in which public security agency seized defendant’s mobile phone, USB flash drive, SD card, card reader and other items from defendant Zhang Zhan’s residence.

10. The Public Security Bureau of Pudong, Shanghai's remote crime scene investigation records and  electronic data collection and fixation list confirmed the circumstances in which the public security agency collected and affixed the content of Zhang Zhan's "twitter"(Tui Te) and "YouTube"(You Guan), and identified circumstances that did not comport with objective facts.

11. The Judicial Forensic Opinion Report of the Computer Judicial Forensic Department of the Shanghai Honglian Network Technology Company Ltd. confirmed the circumstances of its use of technical methods to collect from defendant Zhang Zhan's mobile phone relevant WeChat friend circle records, chat records, portions of notes, records of portions of "twitter" (Tui Te) posts, videos posted on "YouTube" (You Guan), as well as the number of views, comments, reposts, and likes on "The Epoch Times" and "Radio Free Asia" articles and posts on her "twitter" (Tui Te) account.

12. The relevant administrative punishment decision documents confirmed the circumstances of the defendant's recidivism.

13. The process of how the defendant came into police custody produced by the Public Security Bureau of Wuhan confirmed the circumstances in which the defendant in this case was taken into custody.

14. The population information produced by the Public Security Bureau of Pudong, Shanghai confirmed the defendant's identification.

Regarding jurisdiction in this case, an investigation found that defendant Zhang Zhan's household registration and residence is in Pudong, Shanghai, and based on the provisions of the "Criminal Procedure Law"relating to local jurisdiction, our Court enjoys jurisdiction in this case in accordance with the law.

Regarding the facts in this case, an investigation found that ordinary citizens, grassroots community workers, security personnel, and funeral workers in Wuhan provided detailed witness testimony regarding the circumstances of the specific social conditions, epidemic prevention measures, and material distribution in Wuhan during the epidemic prevention and control period in Wuhan. At the same time, some of the people who featured in content of Zhang Zhan's articles and videos also explained the actual circumstances of the facts in their witness testimony. All of the aforementioned witnesses personally experienced Wuhan's prevention and control of the novel coronavirus epidemic and participated in the situations described in Zhang Zhan's articles and videos. The content of their witness testimony is mutually corroborating, and is able to restore the objective circumstances of the Wuhan epidemic control process. The evidence collection procedures were lawful, and their content is objectively mutually corroborating, and shall be given credence. Therefore, in accordance with the facts as currently ascertained, it can be confirmed that the articles and videos Zhang Zhan posted on WeChat, "twitter" (Tui Te), and "Youtube" (You Guan) and other Internet media, as wel as content of her interviews, did not comport with the actual objective circumstances of Wuhan's actual epidemic prevention and control.

This Court finds that, during the critical period of Wuhan's prevention and control of the novel coronavirus infectious pneumonia epidemic, defendant Zhang Zhan in her capacity as a witness repeatedly used WeChat, "Twitter" (Tui Te), "YouTube" (You Guan) and other Internet media to indiscriminately fabricate and publish documentary and commentary articles and information in text, video, and other formats to distort the circumstances of Wuhan's prevention and control of the novel coronavirus infectious pneumonia epidemic. In addition, she accepted interviews with foreign media Radio Free Asia and The Epoch Times and thereby led to a large number of relevant false information to be spread on domestic and foreign information networks, newspapers ,and magazines, which in fact caused a large number of Internet users to view, comment, and forward. It confused viewers and caused severe disruption of public order, and her actions constitute the commission of the crime of disturbing the peace. With respect to the public prosecution agency's charge, the facts are clear, the evidence is reliable and copious, the offense is established, and the suggested sentence is appropriate. In order for this Court to safeguard social management order, and based on the facts, nature, circumstances, degree of social harm, and recidivist nature of defendant Zhang Zhan's crimes, in accordance with Articles 293(1)(iv) and 64 of the "Criminal Law of the People's Republic of China" and Article 5(2) of the "Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Law in the Handling of Defamation Through Information Networks and Other Criminal Cases," the judgment is as follows:

1. Defendant Zhang Zhan committed the crime of disturbing the peace, and is sentenced to a fixed term imprisonment of four years.

(The prison term is to be calculated starting on the day the judgment is executed, and each day in custody prior to the execution of the judgment shall count as one day of the prison term, that is from May 14, 2020 to May 13, 2024)

2. All seized tools used in this case are confiscated in accordance with the law.

If any party does not accept this judgment, they may within 10 days after the second day after receiving this written judgment bring an appeal through this Court or directly to the First Intermediate People's Court of Shanghai. A written appeal should be submitted with one original and two copies of the appeal brief.

Chief Adjudicator    Ma Chaojie
Adjudicator              Wang Meiling
Adjudicator              Chen Wei

December 28, 2020

Clerk                        Yu Xiaomin

 

上海市浦东新区人民法院

刑事判决书

(2020)沪0115 刑初 4002号


公诉机关上海市浦东新区人民检察院。

被告人张展,女,1983年 [INTENTIONALLY DELETED出生于陕西省三原县,汉族,硕士研究生文化,无业,户籍地上海市浦东新区 [INTENTIONALLY DELETED,住上海市浦东新区 [INTENTIONALLY DELETED。2018年8月因利用国际互联网传播煽动颠覆国家政权行为被上海市公安局虹口分局处警告:2019年4月因寻衅滋事行为被上海市公安局浦东分局 处行政拘留一日;2019年 11月因扰乱公共场所秩序行为被上海市公安局黄浦分局处行政拘留十日。因涉嫌犯寻衅滋事罪于2020年5月15日被上海市公安局浦东分局刑事拘留,同年6月19日被依法逮捕。现羁押于上海市浦东新区看守所。

辩护人任全牛,河南轨道律师事务所律师。

辩护人张科科,湖北朋来律师事务所律师。

上海市浦东新区人民检察院以沪浦检一部刑诉(2020) 6701 号起诉书指控被告人张展犯寻衅滋事罪,于2020年9月16日向 本院提起公诉。本院于同日立案,依法适用普通程序,组成合议庭,公开开庭审理了本案。上海市浦东新区人民检察院指派检察员陈钢出庭支持公诉,被告人张展及辩护人任全牛、张科科参加诉讼。期间,经上海市第一中级人民法院批准,延长审理限期三个月。现已审理终结。

上海市浦东新区人民检察院指控:2020年2月3日,被告人张展进入湖北省武汉市,嗣后多次通过微信、“twitter”(推特)、“YouTube”(油管)等网络媒介以文字、视频等方式发布大量虚假信息,并接受境外媒体“自由亚洲电台”、“大纪元”的采访,恶意炒作武汉市新型冠状病毒肺炎疫情,受众众多,影响恶劣。为证实上述指控,公诉机关当庭宣读并出示了相关证人证言、鉴定意见等书证,据此认为,应当以寻衅滋事罪追究张展的刑事责任,提请法庭依法判处。

庭审中,被告人张展不认可起诉书指控的罪名。其辩护人对管辖权提出异议,并认为在案证据存在瑕疵,无法证实被告人张展是发送的文字、视频信息属于虚假信息。被告人张展所发文字系对其在武汉亲身经历的记录,没有捏造编造虚假信息,即便內容上存在一定错漏,也是在可以容忍的范围,不应以寻衅滋事罪追究被告人的刑事责任。

经审理查明:2020年2月3日,被告人张展进入湖北省武汉市,嗣后多次通过微信、twitter(推特)、YouTube”(油管) 等网络媒介以文字、视频等方式发布大量虚假信息,并接受境外媒体“自由亚洲电台”、“大纪元”的采访,恶意炒作武汉市新型冠状病毒感染肺炎疫情,受众众多,影响恶劣。

2020年5月14日,被告人张展在湖北省武汉市被抓获到案。

上述事实,有经庭审举证、质证,本院予以确认的下列证据证实:

1.证人黄芊、陈酉雯、程祎、侯丽、郝峻峰、王共喜的证言及相关文章照片,证实张展在2020年2月中旬,通过微信给其等人发送过内容涉及武汉市防控新型冠状病毒感染肺炎疫情的评论性文章。

2. 证人何光昀、葛幸福的证言及相关微信截图,证实张展在自己的朋友圈内发送多篇內容涉及武汉市防控新型冠状病毒感染肺炎疫情的记录性、评论性文章。

3. 证人王定邦、张明的证言及相关文章微信截图,证实其等人曾在自己的朋友圈或微信群内转发了张展多篇內容涉及武汉市防控新型冠狀病毒感染肺炎疫情的记录性、评论性文章。

4. 证人江帆的证言及武昌区首义路街道大东门社区居民委员会出具的捐赠物资汇总表、口罩物资领取表、爱心菜分发情况、首义路街分发情况明细表、物资分发表,证实江帆作为武汉市武昌区首义路街道大东门社区书记就其所在的社区在防控新型冠状病毒感染肺炎疫情中的防疫措施、人员组成、社区物资供给及政府补助补贴发放、核酸检测情况等进行了详细的说明。

5.证人杨毅的证言,证实杨毅作为武汉市武昌区首义路街道社区保安队员就其所在社区在防控新型冠状病毒感染肺炎疫情中的防疫措施、人员组成、管理方式、防疫物资发放、核酸检测情况等进行了详细的说明。

6. 证人胡筱萍的证言,证实胡筱萍作为武汉市武昌区的普通社区居民就其所在社区在防控新型冠状病毒感染肺炎疫情中的防疫措施、管理人员、防疫物资发放、生活物资发放、核酸况等进行了详细的说明。

7. 证人孙卫军的证言及相关微信聊天记录、墓穴销售单、居民死亡医学证明(推断)书,证实孙卫军作为武汉市龙泉山孝恩园有限公司的工作人员就龙泉山孝恩园墓地在武汉市发生新型冠状病毒感染肺炎疫情期间的墓地销售工作流程、实际情况及政府补贴等情况进行了详细的说明。同时,其还就疫情期间武汉市开展的核酸检测情况进行了说明。

8. 证人张晓兵的证言,证实其系武汉市武昌区创享构树猪的店主。武汉市发生新型冠状病毒感染肺炎疫情后,政府部门出于防疫目的要求其店铺只能做送货上门业务。2020年3月4日,因 其未严格执行配送上门规定被街道工商部门工作人员发现后决定扣押其营业执照,其经过工商人员教育后主动将营业执照交给工商执法人员的情况。与此同时,其还就疫情期间武汉市开展的酸检测情况进行了说明。

9. 上海市公安局浦东分局出具的搜查证,搜查笔录、扣押决定书、扣押笔录、扣押清单,证实公安机关从被告人张展处扣押得被告人的手机、优盘、SD卡、读卡器等物品的情况。

10. 上海市公安局浦东分局远程勘验笔录、电子数据提取固定清单,证实公安机关就张展“twitter”(推特)、“YouTube”(油管)的内容进行取证固定并与查明的客观事实不符的情况。

11. 上海弘连网络科技有限公司计算机司法鉴定所司法鉴定意见书,证实通过技术手段从被告人张展的手机中提取到相关微信朋友圈记录、聊天记录、部分便签记录、“twitter”(推特)上发布的部分推文记录,“YouTube”(油管)上发布的视频、“大纪元”、“自由亚洲电台”“twitter”(推特)账户发布的推文情况及部分视频、文章的观看数、评论数、转发数、标注喜欢数等情况。

12. 相关行政处罚决定书,证实被告人的劣迹情况。

13. 武汉市公安局出具的抓获经过,证实本案的案发及被告人的到案情况。

14. 上海市公安局浦东分局出具的人口信息,证实被告人的身份情况。

关于本案的管辖权,经查,被告人张展户籍地及居住地均在上海市浦东新区,根据《刑事诉讼法》关于地域管辖的规定,我院对本案依法享有管辖权。

关于本案事实,经查,在案的武汉市普通市民、基层社区工 作人员、保安人员、殡葬工作者就武汉市在防控疫情期间的武汉市具体社会情况、防疫措施、物资发放等事实做了详细的证言, 同时张展文章视频所记录内容的部分当事人也在证言中说明了事实的真实情况。上述证人均是武汉市防控新型冠状病毒感疫情过程的亲历者、张展文章视频记述情况的参与者,相关证言內容也相互印证,能够还原出武汉市防疫过程的客观情况,相关证据取证程序合法,内容客观且能相互印证,应当可以采信。故根据现查明的事实可以证实张展通过微信、“twitter”(推特)、“YouTube”(油管)等网络媒介发布的相关文章、视频及接受采访内容均与武汉市实际防控疫情的客观实际情况不符。

本院认为,被告人张展在武汉市防控新型冠状病毒感染肺炎疫情的关键期间,以亲历者的身份多次通过微信、“twitter”(推特)、“YouTube”(油管)等网络媒介以文字、视频等方式肆意编造、发布内容为歪曲武汉市防控新型冠状病毒感染肺炎疫情情况的记录性、评论性文章及信息并以此接受境外媒体“自由亚洲电台”、“大纪元”的采访,导致相关虚假信息在境内外信息网络、 报刊媒体上大量散布,并实际引发大量网民观看、评论、转发, 混淆视听,造成公共秩序严重混乱,其行为已构成寻衅滋事罪。 公诉机关指控的事实清楚,证据确实充分,罪名成立,量刑建议适当。本院为维护社会管理秩序,根据被告人张展犯罪的事实、性质、情节和对于社会的危害程度及劣迹情况,依照《中华人民共和国刑法》第二百九十三条第一款第(四)项、第六十四条, 最高人民法院、最高人民检察院《关于办理利用信息网络实施诽谤等刑事案件适用法律若干问题的解释》第五条第二款的规定, 判决如下:

一、被告人张展犯寻衅滋事罪,判处有期徒刑四年。

(刑期从判决执行之日起计算,判决执行以前先行羁押的, 羁押一日折抵刑期一日,即自2020年5月14日起至2024年5月13日止。)

二、扣押在案的作案工具依法予以没收。

如不服本判决,可在接到判决书的第二日起十日内,通过本院或者直接向上海市第一中级人民法院提出上诉。书面上诉的, 合当提交上诉状正本一份,副本二份。

审判长         马超杰
审判员         王美玲
审判员         陈玮

二0二0年十二月二十八日


书记员         余晓民 

Source: https://chinachangechinese.org/wp-content/uploads/2021/01/%E5%BC%A0%E5%B1%95%E5%88%A4%E5%86%B3%E4%B9%A6.pdf

Sunday, November 29, 2020

Disappearing Government Records Show Police Ordering People, Companies to Stop Using Foreign VPNs

China's state sponsored media has long made it clear that foreign VPNs are not legal. For example, the Global Times wrote in 2012:

Residents in China have found logging into their Facebook and Twitter accounts increasingly difficult in recent days, after several popular VPN (virtual private network) companies have alleged that China's Great Firewall (GFW) has been upgraded. However, officials and experts in China's Internet industry have said that it is illegal for foreign companies to operate a VPN business in China.

Three overseas VPN service providers, Astrill, Witopia and StrongVPN apologized Thursday that their service to residents in the Chinese mainland has been blocked due to a recent upgrade of the GFW. Astrill claimed that most VPN protocols have been blocked,  and that many foreign companies have been influenced.

Fang Binxing, designer of the GFW, told the Global Times Thursday he did not know of any upgrade to the firewall.

"As far as I know, companies running a VPN business in China must register with the Ministry of Industry and Information Technology. I haven't heard that any foreign companies have registered," Fang said.

Unregistered VPN service providers are not protected by Chinese laws, and any company running a VPN business should realize they have a responsibility to register, he said.

An employee from the Ministry of Industry and Information Technology, surnamed Li, also confirmed that only Chinese companies and Sino-foreign joint ventures can apply to establish a VPN business.

See: "Foreign-run VPNs illegal in China: govt," December 12, 2012, https://www.globaltimes.cn/content/750158.shtml

Over the past several years there has also been a growing body of case law in China addressing the (il)legality of VPNs that are not provided by telecommunications carriers licensed  to operate in China. Courts have always been clear that providing unlicensed VPN services to others could violate a number of PRC criminal laws. For example, in State v. Liu Bingyang (刘冰洋刑事判决书, (2017)豫1329刑初556号), Liu was found to have violated Articles 285(3) of the "Criminal Law of the People's Republic of China," by "providing programs and tools for the intrusion into and illegal control of computer information services" when he "used a website of his own construction XX to distribute information about Shadowsocks software and download links to users making payments to defendant Lin Bingyang through third party platforms." The court stated that "Shadowsocks" software and services which the defendant illegally sold could circumvent the monitoring of China's Internet firewall, and illegally access foreign websites, receive and view illegal videos, and receive and listen to illegal broadcasts." See: https://blog.feichangdao.com/2018/03/prc-court-unauthorized-great-firewall.html

It has also been quite common to see courts cite a defendant's use of "wall-climbing" software as evidence of their guilt in relation to other offenses, usually involving posting or accessing content the court deemed to be illegal. For example: 

  • State v. Tian Weiguo (田卫国刑事判决书, (2016)新4003刑初5号): "Tian Weiguo used wall-climbing software to register on the foreign website 'Google,' and reposted false information with the content 'Xinjiang Shache Uighurs have been massacred.'" See: https://blog.feichangdao.com/2017/03/court-cites-gfw-circumvention-software.html
  • State v. Jiang Kun (姜坤刑事判决书, (2019)黑2701刑初71号) "The indictment of the People's Procuratorate of Jiagedaqi charged defendant Jiang Kun with using wall-climbing software to browse the foreign website Twitter. . . . From 2014 to the present, Jiang Kun used computers and mobile phones to distribute, vilify, and attack Party and State leaders on his foreign Twitter account. There were a total of 1,434 posts with harmful information which harmed the nation's image, seriously jeopardized the nation's interests, and caused a negative impact internationally." See: https://blog.feichangdao.com/2020/05/court-jails-man-for-8-months-for-tweets.html
  • State v. Duan Zheng (段铮刑事判决书, (2017)京01刑初69号): "In November 2016, he used wall-climbing software on his mobile phone to access a foreign video website called "theYNC." On that website he watched seven violent terrorist videos." See: https://blog.feichangdao.com/2017/09/man-jailed-seven-months-for-saving-isis.html

A question remained, however: Is it illegal to simply use a foreign VPN to access ostensibly legal content on foreign websites?

That question was answered in the affirmative this year in a series of articles by Wang Yuyang (王宇扬) posted on Tencent's Wexin:

Wang documented dozens of examples of police apprehending and punishing inviduals solely for using VPNs. In each of the cases there was no claim either that the individuals posted anything illegal, or that the information they were accessing was illegal. In some cases the VPNs were being used to play games.

Below are full translations of three entries taken from the Zhejiang Government Services website's "Open Information on Administrative Punishments Outcomes":

Majin Police Precinct, Public Security Bureau of Kaihua
Administrative Punishment Decision
Kai Public (Ma) Administrative Punishment Decision [2019] No. 2019150842

Date Administrative Punishment Issued: September 27, 2019

Main Illegal Facts: From June 2019 to September 2019, Yao Zenglei used VPN software to illegally access international networks while playing the game “Ace Fishing: Wild Catch” on her mobile phone. There was no profit involved. Yao Zenglei’s behavior constituted unauthorized use of non-statutory channels for international networking

Category and Basis of Administrative Punishment: In accordance with the provisions of Articles 6 and 14 of the "Interim Provisions on the Administration of International Networking of Computer Information Networks" it was decided to give Yao Zenglei a warning as an administrative punishment.

Method of Execution and Time Limit of Administrative Punishment: Reprimanded on the Spot.


Chengguan Police Precinct, Public Security Bureau of Changshan, Zhejiang
Administrative Punishment Decision
Chang Public (Chengguan) Administrative Punishment Decision [2020] No. 005601

Date Administrative Punishment Issued: September 14, 2020

Main Illegal Facts: From 2014, 2015 to September 6, 2020, Zhang Liping downloaded wall-climbing software on her personal mobile phone and utilized the software to log onto the overseas "Twitter," "Facebook," "youTube," "instagram," etc. to browse various kinds of information. There was no financial gain. She was apprehended by our bureau on September 14, 2020. Zhang Liping's actions constitute unauthorized use of non-statutory networking channels.

Category and Basis of Administrative Punishment: In accordance with the provisions of Articles 6 and 14 of the "Interim Provisions on the Administration of International Networking of Computer Information Networks" it was decided to give Zhang Liping a warning as an administrative punishment.

Method of Execution and Time Limit of Administrative Punishment: Reprimanded on the Spot.

Jiefang Police Precinct, Dinghai District, Public Security Bureau of Zhoushan, Zhejiang
Administrative Punishment Decision
Zhou Ding Public (Jie) Administrative Punishment Decision [2020] No. 016921

Date Administrative Punishment Issued: October 24, 2020

Main Illegal Facts: From the first half of 2019 through October 2020, Zhang Tao searched and downloaded the wall-climbing software "LANTERN" using Baidu, and repeatedly used the "LANTERN" wall-climbing software to illegally browse the Wikipedia website for information. On October 24, 2020, Zhang Tao was apprehended by the public security agency in Room X, Unit X, Building X, Mingzhuyuan, Huannan Street, Dinghai District.

Category and Basis of Administrative Punishment: This Precinct believes that Zhang Tao illegally used mobile phone wall-climbing software to access international networks in order to inquire about relevant information. His action constitutes: Unauthorized establishment and use of non-statutory channels for international networking, and shall be subject to administrative punishment according to the law. In accordance with the provisions of Articles 6 and 14 of the "Interim Provisions on the Administration of International Networking of Computer Information Networks" and based on the circumstances of this case, it was decided to give Zhang Tao a warning as an administrative punishment, and he was ordered on the spot to stop making illegal connections to the international network.

Method of Execution and Time Limit of Administrative Punishment: Reprimanded on the Spot.


 

Police have also ordered companies to stop using foreign VPNs, again citing Articles 6 and 14 of the "Interim Provisions on the Administration of International Networking of Computer Information Networks." The screenshots below show that police ordered several companies to stop using Astrill and other VPNs and issued the companies official reprimands. There was no indication that the companies was using their VPNs to access foreign websites (as opposed to say, using them for video conferencing or exchanging files).

 



Articles 6 and 14 of the "Interim Provisions on the Administration of International Networking of Computer Information Networks" provide:

Article 6. To carry out international networking of computer information, the output and input channels provided by the Ministry of Posts and Telecommunications in its public telecommunication network shall be used. No units or individuals shall establish or use other channels for international networking on their own accord.
Article 14. Those that violate stipulations in articles 6, 8 and 10 shall be ordered by public security departments to stop networking, with a warning issued to them. They may also be fined an amount up to 15,000 yuan. If they have earned any illegal income, said income shall be confiscated.

The police's application of Articles 6 and 14 has been explicitly endorsed by courts in China in both civil and administrative punishment cases. For example:

Panxing Ximin v. Google LLC (潘⾏紫旻与⾕歌有限责任公司⽹络侵权责任纠纷⼀审民事判决书, (2018)皖0291民初4662号): Wherein the court held that any evidence gathered by the plaintiff using ExpressVPN should be excluded by the court because its collection violated Article 6 of the Interim Provisions of the People's Republic of China on the Management of International networking of Computer Information:

关于原告潘行紫旻提交光盘中的屏幕快照、视频。根据《中华人民共和国计算机信息网络国际联网管理暂行规定》第六条规定,“计算机信息网络直接进行国家联网,必须使用邮电部国家公用电信网提供的国际出入口信息。任何单位和个人不得自行建立或者使用其他信道进行国际联网”。而本案中原告潘行紫旻提交的屏幕快照、视频显示,其是在中国使用ExpressVPN访问了被告谷歌有限责任公司经营的Gmail邮箱,并进行了相关邮件内容的查阅,违反了前述行政法规的规定,本院依法不予采信。

Lai Liangping v. Public Security Bureau of Shanghang (赖亮平行政判决书,(2019)闽0803行初36号): 

With respect to the question of plaintiff Lai Liangping’s claim that defendant Shanghang County Public Security Bureau issuing the Hang Public (Lufeng) Administrative Punishment Decision [2019] No. 00031 administrative punishment decision on June 28, 2019, ordering him to cease networking and giving him a warning was once again imposing administrative punishment on him, and constitutes double jeopardy. An investigation showed that the Hang Public (Lufeng) Administrative Punishment Decision [2019] No. 00031 administrative punishment decision issued by defendant Shanghang County Public Security Bureau was with respect to Lai Liangping’s violation of the provisions of Articles 6(2) and 14 of the "Interim Provisions on the Administration of International Networking of Computer Information Networks of the People's Republic of China" and was an administrative punishment of ceasing networking and a warning for the unlawful action of “climbing the wall” to access foreign websites. The laws and regulations upon which it was based were not the same as the distinct administrative actions that are the subject of the lawsuit, and was a separate distinct administrative action, and therefore does not constitute double jeopardy. The plaintiff’s claim is not consistent with the facts, and is not supported in accordance with the law.

See: https://blog.feichangdao.com/2020/08/lai-liangping-v-shanghang-public.html

Readers wishing to conduct their own research regarding the aforementioned cases should note the following:

Restricted Access to Court Judgments: The texts for the court cases cited in this post were retreived from the Supreme People's Court's China Judgments Online database (裁判文书网, https://wenshu.court.gov.cn) . However, beginning on September 1, 2020, anyone wishing to use the  China Judgments Online database must first register using a mobile phone number. For this reason I have not included any links to cases in that database, because they will not work for many readers.

Disappearing Administrative Punishment Decisions: In November 2020, the Zhejiang Government Services website's "Open Information on Administrative Punishments Outcomes" (http://www.zjzwfw.gov.cn/zjzw/punish/frontpunish/showadmins.do) removed cases relating to "Illegal Use of Non-Statutory Networking Channels." The first screenshot below shows that in September 2020 a search for the term "信道" ("Channels") returned 111 search results, and the first page of results was all cases involving "Illegal Use of Non-Statutory Networking Channels" (擅自建立、使用非法定信道进行国际联网). The second screenshot shows that by November 2020, however, the same search only returned 12 results, none of which related to cases involving "Illegal Use of Non-Statutory Networking Channels." For this reason I have not included any links to cases in that database, because they currently resolve to a 404 page.

This screenshot appeared in "It is an Undisputed Fact that Wall-Climbing is Illegal, In August Alone, Zhejiang Province had 18 Administrative Penalties for 'Individual Wall-Climbing' (With 60 Cases Over the Whole Year)," Wang Yuyang, September 4, 2020,.

This screenshot was taken by the author on November 7, 2020

Saturday, November 28, 2020

China's Police Jailing People Who Call Them "Dogs" Online

Article 2(1)(7) of the "Public Security Administrative Punishment Law of the People's Republic of China," provides that 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, and harming public administration where there is social harm that does not rise to the level requiring criminal sanctions. 

Article 26 of the "Public Security Administrative Punishment Law of the People's Republic of China," provides that "other provocative acts" (其他寻衅滋事行为 - also translated as "picking quarrels and provoking troubles" and "disturbing the peace") may be punished by detention of between 5 and 10 days or a fine of no more than 500 yuan. Where the circumstances are severe, a punishment of between 10 and 15 days detention and a fine of no more than 1,000 yuan may be imposed.

Article 42(2) of the "Public Security Administrative Punishment Law of the People's Republic of China," provides that 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 5 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.

Below are four examples from China's state sponsored media of people who were subjected to administrative detention for referring to police as "dogs" on social media platforms.

Lei Doe's Administrative Punishment

At about 2:00 pm on November 2, 2018, the police officer on duty at the Chengbei Police Station of the Public Security Bureau of Poyang received a call saying someone posted on the Internet that "Poyang traffic police bite and bark like mad dogs." The Chengbei Police Station identified the Internet user as Lei (female, 33 years old, from Poyang). Upon questioning, Lei confessed and was sentenced to administrative detention by the Poyang police.

Source: Netease - "A Woman in Poyang, Shangrao Vented her Anger online and was Detained for Insulting Traffic Policeman," [上饶鄱阳一女子网上泄愤,辱骂交警被拘留] November 6, 2018, https://dy.163.com/article/DVV36IBL0517V8NK.html

 

Zheng Doe's Administrative Punishment

On June 26, 2019, the Traffic Police Detachment of the Public Security Bureau of Guangfeng found in WeChat Moments that someone had taken a video of traffic police officer on duty, accompanied by voice and text insulting the officers on duty such as "Lots of wild dogs." After learning of the situation, the Traffic Police Detachment reported the situation to the police station in the jurisdiction. After an investigation, Zheng Doe was taken into custody. Under questioning Zheng Doe confessed to the fact that he had posted material insulting the police. On June 27, Zheng Doe was sentenced to administrative detention by the Public Security Bureau of Guangfeng for seven days on suspicion of disturbing the peace.

Source: Shangrao Evening News, "Guangfeng Man Detained for 7 days for WeChat Moments Video of Insulting Police" [广丰一男子在朋友圈发辱警言论视频被拘留7日] July 2, 2019, http://paper.srxww.com/srwb/page/34/2019-07-02/A03/74611562026953355.pdf