Saturday, November 26, 2022

Censorship of Court Judgments in the PRC

This blog has previously discussed the issue of "data missingness" in the case of administrative punishment decisions - see "Disappearing Government Records Show Police Ordering People, Companies to Stop Using Foreign VPNs" http://blog.feichangdao.com/2020/11/disappearing-government-records-show.html. This post will cover the "data missingness" that has occurred with respect to court judgments on the "China Judgments Online" database.

Volume 22, No. 3 (August 2022) of The China Review included an essay by Chao Xi titled "How the Chinese Judiciary Works: New Insights from Data-Driven Research" (https://ssrn.com/abstract=4204917). According to Chao, Professor and Outstanding Fellow, Associate Dean (Research), and Chair, Corporate Law and Governance Cluster of the Centre for Comparative and Transnational Law at the Faculty of Law, The Chinese University of Hong Kong:

One of the most pressing methodological challenges of CJO-based, datadriven research on Chinese law and courts is the problem of data missingness. Missing data can potentially undermine the validity of data driven research results. There are three types of missing data: missing data completely at random, missing data at random, and missing data not at random (MNAR). 

. . . .

Prior research suggests that the CJO is, in general, susceptible to the MNAR problem.8 It is true that the CJO is one of the world’s largest databases of freely accessible court decisions. However, it does not oer a full coverage of Chinese court decisions, despite the SPC rules mandating disclosure of judicial opinions. By design, the mandatory requirement for publishing cases in the CJO has built-in exceptions that give considerable discretion and leeway to Chinese courts to selectively upload court decisions onto the CJO, and to remove them from it. What has largely remained empirically unknown is the nature, scope and scale of data missingness in the CJO, as well as the institutional incentives/constraints that drive it.

. . . 

Yang, Qin and He’s descriptive analysis of CJO publications estimates that around 60 percent of Chinese court decisions rendered in 2017 had been made publicly accessible on the CJO, a notable improvement on the record of previous years. They also observe considerable variations across case types in respect of disclosure ratios. Liu, Wong, Yi and Zhang’s study, which focuses on court cases involving Chinese listed companies, lends support to this observation. Insofar as that cohort of court decisions is concerned, local courts fail to disclose more than 60 percent of the judgments handed down. Importantly, their research empirically shows that the court’s selective disclosure is driven by favoritism and private interests and that it is sensitive to broader political considerations.

In 2013, the PRC Supreme People's Court launched its "China Judgments Online" database ("the CJO database"), and issued a notice requiring courts at all levels to publish their judgments on the Internet. See: "Supreme People's Court Provisions on People's Courts' Publishing Judgment Documents on the Internet" (最高人民法院关于人民法院在互联网公布裁判文书的规定), issued November 21, 2013, effective January 1, 2014 (https://www.court.gov.cn/zixun-xiangqing-5867.html). Amended and reissued on August 29, 2016 ("the SPC Notice," https://www.court.gov.cn/zixun-xiangqing-25321.html). See also "Number of Judgments on China Judgments Online Exceeds 100m," Supreme People's Court, September 1, 2020, http://english.court.gov.cn/2020-09/01/content_37539302.htm: "On Aug 30, 2016, the SPC released a revised version of the regulation first released in 2013, requiring courts to enhance the judgments' publicity." Subsequently deleted. Archived at: https://web.archive.org/web/20201027205241/http://english.court.gov.cn/2020-09/01/content_37539302.htm.

Article 3 of the SPC Notice states that all criminal, civil, and administrative judgments shall be published on the Internet ("人民法院作出的下列裁判文书应当在互联网公布: （一）刑事、民事、行政判决书"). 

Article 4 of the SPC Notice requires that courts shall not publish a judgment on the Internet if it:

  1. involves state secrets; 
  2. involves crimes by minors, 
  3. was resolved through mediation, 
  4. involves divorce or minors and guardianship, and 
  5. is deemed unsuitable by the court for online publication.

Interestingly, the 2013 version of the SPC Notice also included an exception for "personal privacy" (个人隐私), but this exception did not appear in the 2016 version.

Article 6 of the SPC Notice requires that where a judgement is not published on the Internet, the case number, trial court, date of judgment, and reasons for non-publication shall be published, except where publishing the above information may reveal state secrets.

It was well documented that as early as 2020 judgments implicating politically sensitive matters, such as prosecutions for online speech, would appear in the China Judgments Online database, only to disappear after drawing the attention of commentators. For example:

  • The Luo Daiqing judgment was originally posted on China Judgments Online on December 19, 2019. That case first began being discussed online in late January 2020, but it was no longer available on the CJO database as of January 23, 2020. For more on this, see Donald Clarke's extensive essay on this topic at https://thechinacollection.org/chinese-student-university-minnesota-jailed-tweets-made-us/. The full text of the Luo Daiqing judgment in English and Chinese can be found in "State Prosecutions of Speech in the People's Republic of China: Cases Illustrating the Application of National Security and Public Order Laws to Political and Religious Expression." Available at SSRN: https://ssrn.com/abstract=4168412.
The Luo Daiqing Judgment on the CJO database before it was deleted.

On January 16 [2021], I posted the case of someone surnamed Li, an internet user in Jincheng, Shanxi Province, who received a prison sentence for posting “negative speech implicating Xi [Jinping]” on Twitter and WeChat. The judgement was taken offline shortly afterwards.

  • On June  24, 2021 the Los Angles Times published a report titled "He Tried to Commemorate Erased History. China Detained Him, Then Erased That Too." That report noted: 

Dong was quiet for several months after his release. But on June 4, 2020, he emailed The Times about his experience and provided a link to a judgment issued by the Beijing Dongcheng People’s Court. The Times verified the judgment, which was documented in a public archive of court rulings kept by the Supreme People’s Court online. 

Last month, he contacted The Times again: The record of his arrest had vanished. 

“In their eyes, it’s as if our detention never happened. It’s as if they never did it to us,” Dong said. “They deleted it … as if they can just delete all Chinese people’s memories.... With one stroke of the arm they can cover the sky.”

It wasn’t just Dong’s case. Thousands of politically sensitive cases disappeared last month from China Judgments Online, the public archive.

https://www.latimes.com/world-nation/story/2021-06-24/china-world-history-erasure-youth-censorship

At about the same time as the Los Angeles Times report was published it became clear that, rather than engage in piecemeal deletions, the CJO database was being purged of entire categories of judgments. On June 24 an announcement appeared at the bottom of the CJO database home page stating "Announcement: Due to technical reasons, some of the judgement documents are currently being migrated. We would like to apologize for the inconvenience caused to visitors, and we will try our best to complete the corresponding technical work in the next few days. We ask for your understanding." (公告因技术原因,目前部分案由裁判文书正在迁移中。由此造成访问者的不便,我们谨表歉意,并努力在近日内完成相应技术工作,敬请广大访问者谅解).

The screenshot on the left from June 23 shows no announcement. The screenshot on the right from June 24 shows the announcement (the grey bar at the bottom).
 

The migration announcement was removed at some time on the evening of July 1. The screenshots below show the number of documents that were available on the CJO database on May 25, 2021 (Left) and July 1, 2021 (Right). They show that pre-migration there were at least 9,442,749 criminal documents, while after the migration had concluded the total was 9,367,949 criminal cases. That's a reduction of 74,800 cases.

 

Commentators immediately began discussing which cases had been deleted. For example:

As if overnight, theft, gambling, export tax fraud, fraud, traffic accidents, sales of fake and shoddy products, refusal to execute, bribery and embezzlement and other irrelevant judgments are all inconvenient to go online.

Even in general cases such as theft, refusal to execute, and sale of counterfeit and shoddy products, the reason for the decision not to go online is that it involves state secrets.

In addition to these, some judgments that have been online have even been withdrawn, and the reasons for the withdrawal are either state secrets or "other circumstances that the people's court considers inappropriate to publish on the Internet."

As shown in the before-and-after screenshots below, the article was subsequently censored and replaced with a notice saying "This content cannot be accessed because it violates regulations" (此内容因违规无法查看 ).


  • On July 11, 2021, a Weixin account named "法天说法" published an article titled "Why are There Signs of Decline in Judicial Openness?" [司法公开为何出现倒退的迹象？], original link: https://mp.weixin.qq.com/s/Iw2sPM-cQSAxBQ0szX3HhA. Archived at: https://web.archive.org/web/20210711095802/https://mp.weixin.qq.com/s/Iw2sPM-cQSAxBQ0szX3HhA. That article noted:
In June 2006, as the first mainland Chinese visiting scholar of the Law Institute of the Academia Sinica in Taiwan, I worked at the Prosecutor’s Office of the High Court of Taiwan, the Taipei District Court, the District Court’s Prosecutor’s Office, the Association of Prosecutors, the Bar Association, and the Judicial Training Institute. . . At that time, I deeply felt the atmosphere of judicial openness on the other side.

Some Internet users discovered that overnight theft, gambling, export tax fraud, fraud, traffic accidents, selling fake and inferior products, refusal to execute crimes, bribery and corruption, etc., were not allowed to go online [on the China Judgments Online database]. The reason turned out to involve state secrets. Some judgments that have been online have even been withdrawn, and the reason for the withdrawal is either related to state secrets or "other circumstances that the people's court considers inappropriate to be published on the Internet." Now you look for the verdict of some cases that aroused public opinion,  and find that they have also disappeared magically, as if they had never appeared before.

As shown in the before-and-after screenshots below, this article was also subsequently censored and replaced with a notice saying "This content cannot be accessed because it violates regulations" (此内容因违规无法查看 ).


In a blow to judicial transparency, all judgments and judicial decisions for endangering state security (ESS) cases, including those for sentence reduction, have been purged from the Supreme People's Court (SPC) online judgment website China Judgements Online (CJO, 中国裁判文书网).

The SPC has selectively removed judgments on CJO for some time, but the mass purge of a full chapter of the criminal law is unprecedented. In early 2021, the built-in crimes filter on CJO yielded over 640 ESS judgments and rulings, but the whole category of ESS judgments covering Articles 102-113 of the Criminal Law disappeared in mid-July. At the time of this posting, using the CJO’s search feature to look for ESS cases, such as inciting subversion of state power, returns not a single result even though the category has returned to the filters.  

The following screenshots are from my own archives. The one on the left was taken on November 5, 2020, and shows that the CJO database used to have a browsing option for cases "Endangering State Security" (危害国家安全罪) nested under "Criminal Cases." So when I browsed for "criminal cases" in "Beijing" the CJO database said there were 50 relevant cases.  The screenshot on the right was taken on July 7, 2021, and shows that the "Endangering State Security" category no longer exists.

These screenshots were taken on November 26, 2022, and show that the CJO database's "Advanced Search" included the category "Endangering State Security." However, selecting that category and searching returned no results. 

This screenshot was taken on February 5, 2022, and shows that a search for cases assigned to the criminal offense "Disturbing the peace" (Article 293 of the Criminal Law - 寻衅滋事罪) only returned two results, both from 2021. 

There were no results from any prior years, despite the fact that, prior to the 2021 "migration," there were dozens of such court judgments available in the CJO database, including the following:

And it is clear that the censorship is ongoing and does not only apply to criminal cases. For example, the left screenshot below was taken September 19, 2021 (months after the "migration" was completed), and shows that a search for documents from 2019 containing the terms "administrative case" and "administrative detention" returned 5,501 results. The right screenshot was taken on November 9, 2022, and shows the same query only returns 5,262 results. The screenshots show reductions in number of  criminal, civil, and administrative documents.

 

Finally, the following cases, all of which involved punishments under Public Security Administrative Punishments Law Article 26 "其他寻衅滋事行为," and all of which could previously be found in the CJO database, have been censored:

The texts of all of the aforementioned cases, and many others that have been deleted from the CJO database, can be found in the original Chinese and in English translation in "State Prosecutions of Speech in the People's Republic of China: Cases Illustrating the Application of National Security and Public Order Laws to Political and Religious Expression." English: https://ssrn.com/abstract=4168412, Chinese: https://drive.google.com/file/d/15meYJuGfgdJxALNwoYbn4Y7T-d79dEbw/view.

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