Based on my research in compiling "State Prosecutions of Speech in the People's Republic of China" (https://ssrn.com/abstract=4168412), three of the six offenses commonly employed by the PRC government to prosecute speech appear in the Public Security Administrative Punishments Law (治安管理处罚法). They are:
Article 25 (Disrupting Public Order by Disseminating Rumors). Example: In 2015, a court held the police did not violate Zhang Guanghong's rights when they jailed him for seven days and confiscated his computer on the grounds that he "used his own Sina Weibo to spread rumors and posts about the 'Five Heroes of Wolf Tooth Mountain' and distorted the image of those revolutionary martyrs." See "State Prosecutions," pp. 540-546.
Article 26 (Other Acts Disturbing the Peace). Example: In 2018, court found that police did not violate Feng Zhouguan's rights by subjecting him to five days administrative detention for referring to Xi Jinping as "fat pig," "steamed bun," and "spendthrift" in WeChat posts. The court rejected Feng's claim that "If the country's leader or his appointed attorneys want to play at litigation with [Feng] then [the police] should maintain a neutral stance because the [police] are agents of the country's judiciary." See "State Prosecutions," pp. 426-435.
Article 42 (Flagrantly Insulting or Concocting Facts to Defame Another Party). Example: In 2014, a court found that police did not violate Cheng Huaishan's rights when they subjected him to administrative detention for a single QQ post that the police decided "flagrantly humiliated leaders of the Party and the State" including Xi Jinping and other members of the Politburo Standing Committee. The court acknowledged that Cheng's post did not explicitly name any State leader, but "nevertheless included content that was clearly 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." See "State Prosecutions," pp. 416-420.
The Public Security Administrative Punishments Law is also used to punish individuals for using VPNs to access websites that the PRC government blocks using the Great Firewall. For examples, see "State Prosecutions," Chapter 16, pp. 641-643.
On September 1, 2023, the NPC Observer published an article (https://npcobserver.com/2023/09/01/china-npc-consultation-public-security-administration-company-vat-education-law/) stating that the Standing Committee of the National People’s Congress (NPCSC) is soliciting public comment on proposed revisions to the Public Security Administrative Punishments Law through September 30, 2023. That announcement included a link to a PDF outlining the proposed revisions: https://npcobserver.com/wp-content/uploads/2023/09/Public-Security-Administrative-Punishments-Law-Draft-Revision.pdf.
In the table below I've pulled out the provisions that could potentially be used to prosecute speech related activities, along with English translations. Some initial impressions:
There are no significant changes to Articles 25, 26, and 42.
The draft adds new language stating explicitly that "The comprehensive management of social security adheres to the leadership of the Communist Party of China."
The draft adds this new language to Article 27 (now Article 30): "Producing, spreading, or possessing for the purpose of spreading items, information, and materials that promote cults and sects." This will no doubt be used to punish Falun Gong practitioners and house church members. For an example of how these acts have been punished under Criminal Law, see the case of Geng Doe, who in 2020 was found guilty of "Using a cult to undermine law enforcement" on the grounds that she invited three other people to come to her home to "practice Falun Gong and share their knowledge of Falun Gong with one another." "State Prosecutions," Chapter 7, pp. 252-255.
The draft adds an entirely new provision devoted to offenses against the image of the State, Article 34. Some of the draft language closely mirrors the Protection of Heroes and Martyrs Law (英雄烈士保护法), for example "Engaging in activities in public venues that damage the environment and atmosphere of commemorating heroes and martyrs," and "Insulting, defaming, or otherwise infringing on the names, likenesses, reputation and honor of heroes and martyrs, harming the public interest of society." The remainder of Article 30, however, creates new offenses which will allow to the government to punish a broad range of pure speech conduct simply on the grounds that someone might find it offensive:
- Clause (2) makes it illegal to wear or adorn clothing or symbols in public venues that "harm the spirit of the Chinese nation or hurt the feelings of the Chinese nation." It is easy to see how this provision could be used by police in the PRC to jail individuals who engage in protest activities outside of the PRC who then return to the PRC.
- Clause (3) makes it illegal to produce, advocate, or publish any remarks that are "detrimental to the spirit of the Chinese nation or hurt the feelings of the Chinese nation." It is easy to see how this provision could be used by police in the PRC to jail individuals who publish anything critical of the Communist Party of China or its leaders outside of the PRC who then return to the PRC.
- Clause (4) makes it illegal to advocate or beautify "aggressive wars and acts of aggression." It seems unlikely that this will be used by police to punish state run media when they advocate aggression against Taiwan (see, e.g., "PLA Conducts Mock Strikes on Taiwan Island on 2nd Day of Encirclement Drills" https://www.globaltimes.cn/page/202304/1288744.shtml). But it is easy to see how this provision could be used by police in the PRC to jail individuals who express support for freedom of navigation operations in the South China Sea.
ORIGINAL |
REVISED |
ENGLISH TRANSLATION |
第六条
各级人民政府应当加强社会治安综合治理,采取有效措施,化解社会矛盾,增进社会和谐,维护社会稳定. |
第二条
社会治安综合治理工作坚持中国共产党领导.
各级人民政府应当加强社会治安综合治理,采取有效措施,化解社会矛盾,增进社会和谐,维护社会稳定.
县级以上人民政府有关部门应当在各自职责范围内,做好社会治安综合治理相关工作. |
Article
The comprehensive management of social security adheres to the leadership of the Communist Party of China.
People's governments at all levels shall strengthen comprehensive management of social security and take effective measures to resolve social conflicts, enhance social harmony, and maintain social stability.
Relevant departments of the people's governments at or above the county level shall carry out work related to the comprehensive management of social security within the scope of their respective responsibilities. |
第二十五条
有下列行为之一的,处五日以上十日以下拘留,可以并处五百元以下罚款;情节较轻的,处五日以下拘留或者五百元以下罚款: (一)散布谣言,谎报险情、疫情、警情或者以其他方法故意扰乱公共秩序的; (二)投放虚假的爆炸性、毒害性、放射性、腐蚀性物质或者传染病病原体等危险物质扰乱公共秩序的; (三)扬言实施放火、爆炸、投放危险物质扰乱公共秩序的. |
第二十八条
有下列行为之一的,处五日以上十日以下拘留,可以并处一千元以下罚款;情节较轻的,处五日以下拘留或者一千元以下罚款: (一)散布谣言,谎报险情、疫情、警情或者以其他方法故意扰乱公共秩序的; (二)投放虚假的爆炸性、毒害性、放射性、腐蚀性物质或者传染病病原体等危险物质扰乱公共秩序的; (三)扬言实施放火、爆炸、投放危险物质等行为扰乱公共秩序的. |
Article 2
(1) intentionally disturbing public order by spreading rumors, making false reports of dangerous situations and epidemic situations or raising false alarms or by other means; (2) disturbing public order by putting in fake hazardous substances such as explosive, toxic, radioactive and corrosive substances or pathogens of infectious diseases; or (3) disturbing public order by actions such as threatening to set fire, set off explosions, or put in hazardous substances. |
第二十六条
有下列行为之一的,处五日以上十日以下拘留,可以并处五百元以下罚款;情节较重的,处十日以上十五日以下拘留,可以并处一千元以下罚款: (一)结伙斗殴的; (二)追逐、拦截他人的; (三)强拿硬要或者任意损毁、占用公私财物的; (四)其他寻衅滋事行为. |
第二十九条
有下列行为之一的,处五日以上十日以下拘留,可以并处一千元以下罚款;情节较重的,处十日以上十五日以下拘留,可以并处二千元以下罚款: (一)结伙斗殴的; (二)追逐、拦截他人的; (三)强拿硬要或者任意损毁、占用公私财物的; (四)其他寻衅滋事行为. |
Article 2
(1) gang-fighting; (2) chasing or intercepting another person; (3) forcibly taking and obstinately seizing, or willfully damaging and occupying public or private property; or (4) other provocative acts. |
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第三十条
(三)制作、传播、为传播而持有宣扬邪教、会道门内容的物品、信息、资料的. 明知他人从事前款活动,为其提供条件的,依照前款的规定处罚. |
Article
(3) Producing, spreading, or possessing for the purpose of spreading items, information, and materials that promote cults and sects.
Whoever knowingly provides the conditions for others to engage in the activities in the preceding paragraph shall be punished in accordance with the provisions of the preceding paragraph. |
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第三十四条
有下列行为之一的,处五日以上十日以下拘留或者一千元以上三千元以下罚款;情节较重的,处十日以上十五日以下拘留,可以并处五千元以下罚款:
(一)在公共场所从事有损纪念英雄烈士环境和氛围的活动的; (二)在公共场所或者强制他人在公共场所穿着、佩戴有损中华民族精神、伤害中华民族感情的服饰、标志的; (三)制作、传播、宣扬、散布有损中华民族精神、伤害中华民族感情的物品或者言论的; (四)亵渎、否定英雄烈士事迹和精神,宣扬、美化侵略战争和侵略行为,寻衅滋事,扰乱公共秩序的; (五)以侮辱、诽谤或者其他方式侵害英雄烈士的姓名、肖像、名誉、荣誉,损害社会公共利益的; (六)侵占、破坏、污损英雄烈士纪念设施的. |
Article 34
Anyone who commits any of the following acts shall be detained for not less than five days but not more than ten days, or fined not less than 1,000 yuan but not more than 3,000 yuan; if the circumstances are relatively serious, they shall be detained for not less than ten days but not more than fifteen days, and may also be fined not more than 5,000 yuan:
(1) Engaging in activities in public venues that damage the environment and atmosphere of commemorating heroes and martyrs; (2) Wearing or adorning, or forcing others to wear or adorn, clothing or symbols in public venues that are detrimental to the spirit of the Chinese nation or hurt the feelings of the Chinese nation; (3) Producing, spreading, advocating, or disseminating articles or remarks that are detrimental to the spirit of the Chinese nation or hurt the feelings of the Chinese nation; (4) Blaspheming or repudiating the deeds and spirit of heroes and martyrs, advocating or beautifying aggressive wars and acts of aggression, disturbing the peace, and disrupting public order; (5) Insulting, defaming, or otherwise infringing on the names, likenesses, reputation and honor of heroes and martyrs, harming the public interest of society; (6) Occupying, destroying, or defacing memorial facilities for heroes and martyrs. |
