Monday, September 9, 2013

Southern Weekend Article Questions Internet Rumor Crackdown, Gets Deleted

On August 22, 2013, China's official news agency Xinhua published an article entitled "Police Ask Netizens to Not Spread Rumors." Some excerpts:
Beijing police said on Wednesday they have smashed a company that allegedly made and spread fake information on websites for profits, and arrested two men suspected of fabricating online rumors and harming others' reputations.
Yang Xiuyu, founder of the Erma Co, and his employee Qin Zhihui (秦志晖) are suspected of using fake information to attract followers, according to a statement provided by the Beijing Public Security Bureau.
Yang and Qin are being held on suspicion of the crimes of provoking trouble and running an illegal business, police said.
Qin, 30, better known by his online name, Qin Huohuo (秦火火), had alleged on Sina Weibo, China's largest micro-blog site, that the Chinese government had paid 200 million yuan ($32.7 million) in compensation to a foreign passenger after two trains collided in Wenzhou, Zhejiang province, on July 23, 2011.
The micro blog was forwarded about 12,000 times within two hours, creating public anger at the government, police said.
The two also allegedly posted online that Lei Feng, a soldier idolized across China half a century ago for his selfless and modest actions, lived a life of luxury.
On August 29, Xinhua published an article entitled "Beijing Police Capture 27 for Prostitution." The article only named one of those arrested, Xue Manzi (薛蛮子 Charles Xue), and described him as follows:
Xue, 60, an investor and prolific microblogger with more than 12 million followers, was arrested in the Chaoyang District of Beijing last Friday, police said.
. . . .
Investigation found Xue, whose Chinese name was "Xue Biqun" and was verified as "Xue Manzi" in Sina Weibo, China's most popular Twitter-like service, came to China in 2007 and had engaged in licentious activities with more than ten female sex workers since May this year.
On September 1, the state sponsored Global Times published an article entitled "Confusion In Online Rumor Crackdown." Some excerpts:
Local police in Dangshan county, Anhui Province, on August 29 apologized for inappropriately punishing a Net user who also publicized the wrong death toll in a car accident. The punishment, ruling the man be detained for five days, was called off.
Tong Zhiwei, a professor with the Shanghai-based East China University of Political Science and Law, told the Global Times that the rectification was in accordance with the law and the apology showed that authorities have realized that they should not overdo the crackdown.
On September 2, Xinhua published an editorial entitled "We Must Guard Against the Crackdown on 'Online Rumor's Going Off the Rails" (打击“网络谣言”须防范执行跑偏). Some excerpts:
While we approve of the Dangshan police's attitude of seeking truth from the facts, we must also remind those agencies charged with enforcing the law that that in cracking down on rumors, respect for facts and the law remains paramount.
. . . .
It is true that it is somewhat inappropriate for Internet users failing to undertake verification and publish inaccurate casualty figures for a traffic accident. Nevertheless, if there is no evidence indicating that there was malicious intent, then it may not rise to the level of "intentionally fabricating and spreading rumors."
. . . .
The original intent of attacking online rumors is good, but we cannot label as rumor every voice we hear that we don't like. We must find a balance between attacking online rumors and protecting the public's rights to know, participate, express, and oversee. We must rely strictly on facts, take the law as our standard, and avoid acting arbitrarily.
Everyone applauds how attacking Internet rumors is conducive to cleansing online spaces and channeling positive energy. But at the same time, we must guard against abusive and deviant implementation in a few places. The path to resolution must first and foremost be built on comprehensive laws and regulations in the relevant areas. And law enforcement in particular must take the lead in abiding by the law. Only then can we build a healthy online environment. 
但在肯定砀山警方实事求是的态度的同时,也要提醒手握执法权的部门,打击谣言,更要尊重事实和法律。
. . . .
网民未经核实,发布不准确的车祸死亡人数,确有不当之处。然而,如果没有证据表明是恶意捏造,可能还没达到“故意编造、散布谣言”的程度。
. . . .
打击网络谣言,初衷是好的,但不能把自己不喜欢听到的声音,都扣上谣言的帽子。要把握好打击谣言和保证公众知情权、参与权、表达权、监督权的平衡,必须严格以事实为依据,以法律为准绳,避免随意性。
打击网络谣言,有助净化网络空间,传递正能量,人人拍手称快。但同时也要警惕一些地方在执行中滥用、跑偏。解决之道首先要建立健全相关领域的法律法规,同时,各地执法者尤其要带头守法,才能营造健康的网络环境。
On September 6, 2013, the state sponsored Global Times published an op-ed by Zhang Yiwu (张颐武), a professor of Chinese Studies at Beijing University entitled "Is Chinese Public Opinion Really Constricting?" (中国舆论真的在收紧吗). Some excerpts:
Given today's Internet environment, any move toward social governance will almost inevitably be met with debate and consternation. There is nothing at all odd about this. But the fact is that this does not in any way mean that the development of online opinion in China is being subjected to restrictions. On the contrary, this is a step toward "normalization" of online opinion in China, and it is laying the foundation for a flourishing and dynamic Internet for China.
. . . .
First, there is a lack of control over online rumors and malicious behavior which has allowed evildoers to take over, and they are increasingly running rampant. Second, many rumor mongers are using the virtual influence of astroturfers to seize prestige and power, and are employing Big V's reposts to exert influence, building their rants and ulterior motives on a foundation of certain irrational emotional currents in our society, and go on to wantonly attack those with whom they disagree, using rumors and lies to attack others and society. Rumor mongers are generally anonymous, and do not bear any responsibility. Those who repost what they say also avoid responsibility. 
在今天的互联网环境下,任何一个社会治理的行动都会难免遭遇议论纷纭的状况,这毫不奇怪。但实际上它决不意味着中国互联网舆论的发展受到限制,相反是中国互联网舆论走向“常态化”的重要一步,也为中国互联网繁荣和活跃奠定坚实基础。
首先,网上的谣言或恶意行为缺少规范,往往使得恶人当道,他们就更加猖獗。其次,不少造谣者以水军所营造的虚幻势力构成声势,以一些大V的转发来形成影响,以某些非理性的社会情绪作为宣泄和利用的基础,由此构成了肆意打击不同意见,用谣言和欺骗攻击他人和社会的状况。造谣者往往匿名发言,不承担任何责任,而其他人转发传播也变成无责任的。
On September 5, the state sponsored Southern Weekend published an article entitled "Will Attacking Rumors With the Long Arm of the Law Lead to a World Without Rumors?" (打击谣言的法律边界重拳严打,天下无谣?).  As these screenshots show, it was deleted on September 6.

Original URL: http://www.infzm.com/content/93972

This screenshot shows that the title of the article does not appear on the list of Southern Weekend's content for the week of September 5, 2013.
It was also deleted from where it was reposted on the Southern Weekend's sister publication, Southern Daily.

Original URL: http://ndnews.oeeee.com/html/201309/05/208413.html

The following are some translated excerpts from the article.
Barring some miracle, two days from now the journalist Liu Hu will spend his 38th birthday in a Beijing jail. On August 23, 2013, a week after reposting a tweet blowing the whistle on a government official, Liu Hu was taken from his home in Chongqing by Beijing police. The detention notice said he was suspected of having committed the offense of provoking and quarreling.
Before Liu Hu, online personality Qin Huohuo was detained, and he was similarly accused of committing the offense of provoking and quarreling.
Since August 20, when police nationwide launched their "Campaign Against Online Organized Crime," the offense of provoking and quarreling has become the new method of attack.
. . . .
Southern Weekend's reporters have learned that in the last two to three months, the Supreme People's Court and the Supreme People's Procuratorate have been soliciting opinions from academics on the issue of how the law should be employed in criminal cases where someone uses the Internet to commit offenses such as provoking and quarreling or defamation.
. . . .
Liu Hu's two lawyers have expressed their view saying: "There has yet to be a single example of online expression constituting the offense of provoking and quarreling. Such a possibility is excluded by China's criminal law and judicial interpretations."
The Criminal Law provides four ways the offense of provoking and quarreling might be triggered:
  1. Willfully assaulting another person;
  2. Chasing, attacking, insulting, or intimidating another person;
  3. Forcibly taking or demanding or willfully vandalizing or occupying public or private property; or
  4. Making trouble in a public place, creating severe disorder in a public place.
As it relates to Liu Hu's and "Qin Huohuo's" circumstances, only the fourth situation corresponds to online spaces. The question is, do the Criminal Law's public spaces include online spaces?
The most recent judicial interpretation from the "two supremes" only came into effect on July 22, 2013. It clarified  the definition of public spaces as: train and bus stations, ports, airports, hospitals, markets, parks, theaters, exhibition halls, sports fields, and other public areas.
. . . .
According to a Beijing Daily article, a responsible official with the Beijing Public Security Bureau has said: online spaces are public spaces.
On August 28, Cao Zuohe, a judge at Chaoyang's No. 2 Criminal Court, published an article in the Beijing Daily saying that, the key to whether online rumor mongering constitutes a crime is whether the Internet is defined as a public space. He wrote: "Defining online spaces as public spaces is something recognized by criminal law scholars and represents a breakthrough in judicial practice."
Clearly, relevant government agencies support the proposition that public spaces include online spaces.
. . . .
Lin Wei, a professor at China Youth University for Political Sciences, believes that the most recent judicial interpretation from the "two supremes" refers to what are commonly understood as physical spaces, and made no reference to the virtual Internet. From a functional perspective one can say that "online spaces are public spaces," but the problem is that it is not a public space that is mentioned in the Criminal Law.
Che Hao, an associate professor at Beijing University Law School, said that if there is no new judicial interpretation, it would be stretching things use the offense of provoking and quarreling to punish someone for fabricating and spreading rumors.
Zhou Guangquan, a professor at Tsinghua University Law School, provided a new way of thinking about this. He believes that the two concepts of public spaces included in"making trouble in a public place, creating severe disorder in a public place" should be explained separately: "The first concept can include virtual public spaces, because in this kind of space one can make trouble by speaking irresponsibly. However, the second public space must be an 'actual social public space,' and only where an act creates actual social disorder can it be considered a crime."
Zhou Guangquan, Lin Wei, and other criminal law scholars generally believe that the dispute regarding public spaces is not the most important issue.
Zhou Guangquan said that there is no substantive difference between fabricating and spreading rumors online or verbally. The key lies in the consequences that ensue. "Only when an act leads to actual social disorder can it be considered a crime."
Lin Wei believes that, if it is a case of simply misconstruing something, the it shouldn't be subjected to punishment on legal grounds, even where it was done intentionally. If there is to be punishment, it must be because the misconstruing brought about a specific threat to public order, and it must be possible to establish a cause-and-effect relationship between the rumor and the consequence.
. . . .
Legal scholars are concerned that, by extending the crime of provoking and quarreling to online spaces we run the risk of making it a "catchall crime," which will create new problems, in particular how to prevent certain leading cadres from utilizing this to exact revenge on whistleblowers where their speech relates to government officials.
. . . .
On August 23, a traffic accident occurred in Shangyu, Zhejiang, resulting in seven fatalities. On that day a Mr. Ma posted a rumor on a local forum saying "nine people died," with the result that "within 20 minutes 454 people viewed it and it was reposted 15 times." Police subjected him to five days of administrative detention for "fabricating facts and disrupting public order."
On the evening of August 26, an Internet user in Qinghe county, Hebei province, published information on the local Tieba saying "I heard that a murder took place in Louzhuang, does anyone know what actually happened?" He was detained. According to local media reports, the consequence of this Internet user's action was: This information was quickly clicked on over 1,000 times, was passed around by certain groups in the county, and severely disrupting public order, and causing mass panic.
On August 30, the Yuexiu precinct of the Guangzhou Public Security Bureau reported that an Internet user in Guangzhou had recently fabricated information online, spread rumors, and slandered "The Five Heroes of Langya Mountain." The result was many Internet users reposted and discussed it, which had a negative social impact, so he was subjected to seven days of administrative detention. [N.B. According to other new reports, the Internet user said "The five heroes of Langya Mountain were in fact some 8th Army irregulars, and after fleeing to Langya Mountain they used their guns to suppress local villagers, with the result that the local villagers resented them. Afterwards the villagers told the Japanese army of the five's whereabouts, which led the five to flee down a blind alley." (狼牙山五壮士实际上是几个土八路,当年逃到狼牙山一带后,用手中的枪欺压当地村民,致当地村民不满。后来村民将这5个人的行踪告诉日军,又引导这5个人向绝路方向逃跑。) See: http://epaper.oeeee.com/A/html/2013-08/31/content_1926048.htm]
. . . .
Zhou Guangquan believes that, based on his understanding of public places, if an Internet user says something in a virtual public space and it clearly will not give rise to any actual disorder in society and no one takes it seriously, and believes he or she is merely joking, then the law may not punish them.
What the public is questioning the most is where public security agencies proactively intervene in "rumors" about Party and government agencies.
"It is too big of a stretch to say that, if someone blows the whistle on an official the damage caused could extend to shaking public's faith in the governing Party, which could in turn throw society into disorder. Our social order is not as fragile as that."
. . . .
As Lin Wei sees it, the Internet users who misreported the number of traffic fatalities should not have been punished. "Even if they did it intentionally, and only three people were killed as opposed to seven as he said, I do not feel that what he said caused any harm." 
如果没有奇迹发生,再过2天,记者刘虎就会在北京市第一看守所迎来自己的38岁生日。2013年8月23日,在转发了一封对某政法官员的举报信一周后,刘虎在重庆的家中被北京警方带走。拘留通知书称他涉嫌寻衅滋事罪。
在刘虎之前,微博网民“秦火火”被刑拘,涉嫌的罪名同样是寻衅滋事罪。
自8月20日起,全国公安机关开展“打击网络有组织犯罪专项行动”,寻衅滋事罪成为新的打击手段。
. . . .
南方周末记者获悉,近两三个月里,“两高”曾就利用互联网实施的寻衅滋事、侮辱诽谤等刑事案件的法律适用问题,征求学界的意见。
. . . .
刘虎的两位律师发表意见书称,“迄今无一例因网络发言的寻衅滋事罪,我国刑法和司法解释,均杜绝了这种可能。”
刑法规定了寻衅滋事罪触发的四种方式:一、随意殴打他人;二、追逐、拦截、辱骂、恐吓他人;三、强拿硬要或者任意损毁、占用公私财物;四、在公共场所起哄闹事,造成公共场所秩序严重混乱。
对应网络空间情况,刘虎和“秦火火”只可能涉及第四种情况。问题是,刑法的公共场所是否包含网络空间?
“两高”对寻衅滋事罪的最新司法解释,2013年7月22日才开始施行。对公共场所的定义明确为:车站、码头、机场、医院、商场、公园、影剧院、展览会、运动场或者其他公共场所。
. . . .
据《北京日报》文章,北京市公安局有关负责人表示:网络空间是公共场所。
8月28日,北京市朝阳区法院刑二庭法官曹作和在《北京日报》撰文称,能否把互联网定义为公共场所,是网络造谣行为入罪的关键。他写道,“将网络空间定义为公共场所,这是一种刑事法学层面认识,更是司法实践的一次突破。”
显然,有关部门支持公共场所包括网络空间的解释。
. . . .
中国青年政治学院教授林维认为,“两高”最新的司法解释提到的都是通常理解的物理空间,没提到虚拟的互联网,从功能性的角度可以说“网络空间是公共空间”,但问题是,它不是刑法当中说的公共场所。
北京大学法学院副教授车浩说,如果没有新的司法解释,目前对造谣传谣行为以寻衅滋事罪论处确实比较勉强。
清华大学法学院教授周光权提供了一种新的思路。他认为,“在公共场所起哄闹事,造成公共场所秩序严重混乱的”里的两个“公共场所”概念应该分别理解:“第一个概念,可以包括虚拟的公共场所,因为在这种场所,可以发表不负责任的言论起哄闹事。但是,第二个场所,一定是‘现实社会的公共场所’,即行为造成现实社会秩序混乱的,才能定罪”。
周光权、林维等刑法学者均认为,公共场所之争,不是最重要的问题。
周光权说,通过网络造谣传谣和通过口头造谣传谣并无本质不同,关键是造成了什么结果。“行为造成现实社会秩序混乱的,才能定罪”。
林维认为,单纯就对一个事物错误描述的本身,哪怕是故意的,也不应该是进行法律处罚的理由。要处罚,一定是一个错误的描述,对社会公共秩序造成了一定的危害,即谣言与后果能建立法律上的因果关系。
. . . .
刑法学界担心的是,扩大适用到网络空间后,寻衅滋事罪本身具有的“口袋罪”缺陷,可能成为新的问题。尤其相关言论涉及官员时,如何防止某些领导干部借此打击报复举报人。
. . . .
8月23日,浙江上虞发生车祸,7人死亡,次日冯某在当地论坛发帖谣称“死亡9人”,造成“20分钟内,454人浏览,其中15人跟帖回复”,被警方以“虚构事实扰乱公共秩序”行政拘留5天。
8月26日晚,河北省清河县一名网民因在当地贴吧里发布“听说娄庄发生命案了,有谁知道真相吗?”的信息,被行政拘留。根据当地媒体的报道,这名网友造成的后果是:该信息迅速被点击一千余次,在该县部分群众中传播,严重扰乱了社会公共安全秩序,引发民众恐慌。
8月30日,广州市公安局越秀分局通报,广州一网民近日在网络上虚构信息、散布谣言,污蔑“狼牙山五壮士”,引起众多网民的转发及评论,造成了不良的社会影响,对其予以行政拘留7日。
. . . .
周光权以其对公共场所的理解,认为,如果网民在虚拟的公共场所发表的言论,显然不会引起现实社会发生任何秩序混乱,没有任何人会当真时、仅仅认为其是玩笑时,法律不能处罚。
遭受公众质疑最多的是,公安机关主动介入针对党政机关或官员的“谣言”。
“如果因为一个人举报了一些官员,就把他所造成的损害扩大到民众对于执政党信心的动摇,由此上升为扰乱社会秩序,跨度就太大了。我们的社会秩序没有那么脆弱。”
. . . .
在林维看来,上述错误描述车祸死亡人数的网民都不该被处罚。“就算是他是故意的,本来死了3个人,他非说死了7个人,你说这个造成了什么危害,我觉得也没有。”

Translation: Huang Xuqin and Wang Jianbing Inciting Subversion Indictment

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