Translation: New York Times v. Sullivan with PRC Characteristics

Intermediate People's Court of Yulin, Shaanxi

Administrative Decision

(2020) Shaan 08 Administrative Final No. 521

Translator's Summary: The court found that police did not violate Yuan's rights when they subjected him to administrative detention for reposting an article to his personal social media accounts that police determined defamed a Communist Party cadre. The court held that as a journalist Yuan had a duty to verify the contents of the article.

Appellant (plaintiff in the original trial) Yuan Jianmeng, male, born [INTENTIONALLY OMITTED], 1982, Han ethnicity, born in Taiyuan, Shanxi, residing in Yingze District, Taiyuan.

Entrusted representative Zhang Jinzhen is a lawyer at the Shanxi Wenying Law Firm.

Appellee (defendant in the original trial) Public Security Bureau of Yulin, Hengshan Division.Address: Shaanxi Yulin, Huancheng North Road, Hengshan District, Unified Social Credit Code: 1161080001******.

Legal representative He Guoyu, director.

Person in charge of the court appearance Lu Jianjiang, deputy director.

Entrusted representative Luo Bin, a police officer at the Division's Legal Department.

Entrusted representative Hui Hao, a police officer at the Division's cyber security brigade.

Appellee (defendant in the original trial) Public Security Bureau of Yulin. Address: Shaanxi Yulin, No. 4, Fushi Road, Yuyang District. Unified Social Credit Code: 11610800016*******.

Legal representative Qiu Zuman, Director.

Entrusted representative Zhang Hao and Wang Long are police officers at the Bureau's Legal Department.

In relation to a public security administrative punishment case, appellant Yuan Jianmeng did not accept the People's Court of Yuyang, Yulin's (2019) Shaan 0802 Administrative First Instance No. 70 administrative judgment, and filed an appeal with this Court. After this Court docketed the case, it formed a collegial panel in accordance with the law and tried this case. The trial has now concluded.

In his lawsuit appellant Yuan Jianmeng requested the court in the trial of first instance:

1. Rescind the Heng Public (Cyber Security) Administrative Punishment Decision (2019) No. 67 administrative punishment decision rendered by defendant Public Security Office of Hengshan on January 29, 2019;

2. Rescind the Yu Public Reconsideration Decision (2019) No. 11 reconsideration decision rendered by the Public Security Bureau of Yulin on April 28, 2019; and

3. The litigation costs in this case be born by defendant No. 2.

The court in the original trial ascertained at trial that: Plaintiff Yuan Jianmeng was a reporter for the Shanxi Newspaper Group's Development Herald New Horizons Weekly. On January 25, 2019, the plaintiff did, without undertaking any verification, repost an article with the title "The 'Big Knife Brigade' In Hengxing Township, Did the King of the District Committee Really Serve the People?" from the Wechat public account "Brilliant City Recommendations" to his own registered Sina Weibo blog "Understanding Chang'an Street" and also pushed it to his personal Weibo account "Understanding Baiwan Zhuang," where it was clicked on over 1,300 times. This constitutes illegal defamatory facts.

In accordance with Article 42(2) of the "Public Security Administrative Punishments Law," on January 29, 2019, defendant Public Security Office of Hengshan rendered the Heng Public (Cyber Security) Administrative Punishment Decision (2019) No. 67 administrative punishment decision, imposing a punishment on the plaintiff of eight days administrative detention. The plaintiff did not accept this, and applied to the defendant Public Security Bureau of Yulin for reconsideration. On April 28, 2019 that office rendered the Yu Public Reconsideration Decision (2019) No. 11 reconsideration decision, and in accordance with the provisions of Article 28(1)(i) of the "Administrative Reconsideration Law of the People's Republic of China" (hereinafter referred to as the "Administrative Reconsideration Law"), sustained the aforementioned Administrative Punishment Decision rendered by the defendant Public Security Office of Hengshan. The plaintiff still did not accept this, and filed a lawsuit with this Court, raising the aforementioned claims.

The court in the original trial held that, in accordance with the provisions of Article 7 of the "Public Security Administration Punishment Law," the public security agency of the local people's governments at or above the county level are responsible for the administration of public security within their administrative area. The jurisdiction of public security cases are stipulated by the public security department of the State Council. Article 9 of the "Procedures for the Handling of Administrative Cases by Public Security Agencies" of the Ministry of Public Security stipulates that administrative cases shall be under the jurisdiction of the public security agency in the place where the illegal act occurs. Hengshan District is the primary place where the consequences of the offense in this case occurred, which is under the jurisdiction of the Public Security Division of Hengshan. Therefore, that office has the statutory authority to investigate and handle violations of public security administration that are implicated in this case.

Article 12 of the "Administrative Reconsideration Law" stipulates that if someone is dissatisfied with a specific administrative action of a working agency of a local people's governments at or above the county level, the individual may choose to apply for administrative reconsideration to the people's government at the same level as the department, or apply for administrative reconsideration to the competent department at the next higher level. The Public Security Bureau of Yulin, as the upper-level competent department of the Public Security Division of Hengshan, has the statutory authority to accept the plaintiff’s administrative reconsideration application, and to conduct a corresponding review and processing of administrative actions made by the Public Security Division of Hengshan.

The point of dispute in this case is whether or not the appellant's conduct constitutes a fabrication of facts to defame a third party under Article 42(2) of the "Public Security Administrative Punishments Law of the People's Republic of China." This Court interprets what is meant by the illegal act of "a fabrication of facts to defame a third party" as that offense is set forth in Article 246 of the "Criminal Law of the People's Republic of China" "(hereinafter referred to as the "Criminal Law"), and with reference to the provisions of Article 1 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" (hereinafter referred to as the "Interpretation").

According to Article 1 of the "Interpretation" and the identified actions of the plaintiff that have been punished, the key to resolving the point of dispute in this case lies in whether the plaintiff, when reposting the article with the content about Wang Xiaoli, acted in a matter that consistent with the second paragraph of that article: "with clear knowledge that facts are fabricated that will harm the reputation of a third party." In this regard, the plaintiff claimed that the evidence of the second defendant was not sufficient to meet the clear knowledge requirement, and the plaintiff verified the authenticity of the article by looking up the source on the Internet. The second defendant argued that the plaintiff was a journalist and had a higher duty of verification with respect to reposting content, and failing to fulfill that duty amounts to having clear knowledge.

This Court finds that clear knowledge is the subjective mental state of the actor, and includes both "knew" and "should have known." The defendant’s evidence on facts did not show that the plaintiff knew exactly that the content of Wang Xiaoli in the reposted article was fabricated, so it is necessary to examine whether the plaintiff "should have known." "Should have known" is a conjecture as to the plaintiff's subjective attitude. It must be comprehensively judged based on various evidentiary materials, including the information that was disseminated, as well as the identity, occupation, and life experience of the actor.

First, the content about Wang Xiaoli that was posted was "Wang Chengbao long oppressed the masses and harmed one party, under the protective umbrella and the inaction of the Secretary of the Hengshan District Committee, Wang Hao…" and "The Secretary of the Hengshan District Committee, Wang Hao...served as a protective umbrella for underworld forces." Those are charges that Wang Xiaoli is suspected of serious crimes, but suspicions of citizens' crimes have to be based on investigations and determinations made by relevant State law enforcement agencies in the fulfillment of their authorized duties. If the plaintiff fails to verify with relevant departments and there is no judgment from law enforcement agencies in the reposted article, then on the basis of common legal knowledge one could recognize that the authenticity of this charge is unreliable.

Second, the plaintiff is a journalist. According to Article 18 of the "Administrative Measures for Journalist Accreditation," which stipulates the professional standards of journalists, "Journalists who use journalist accreditation to engage in news gathering activities shall abide by laws and regulations and journalistic professional ethics, and ensure that news reports are true, comprehensive, objective, and fair. They shall not compile and distribute false reports,  publish false news, or conceal news facts that should be reported." He should have a higher level of awareness and judgment regarding the authenticity and objectivity of the information published, so he has a greater ability to recognize the baselessness of the charges against Wang Xiaoli in the forwarded article. Although the plaintiff claimed that his forwarding behavior was not an act done his professional capacity, this fact does not affect his cognitive ability, and the defense is not sustained.

Finally, the plaintiff admitted that the blog account he used to repost the article was registered at his place of work, which also indicates that the plaintiff had a higher duty of caution in disseminating information through this account.

In summary, if the plaintiff has the capability and qualifications to verify the charge of the suspected crime that he reposted, but does not use basic verification methods, it can be determined that he should have known that the charge was not true.
Defendant Public Security Office of Hengshan lawfully reached the same conclusion based on the evidence collected during the administrative punishment process.

After receiving the reconsideration application from the plaintiff, the Public Security Bureau of Yulin fulfilled the procedures of acceptance, notification response, and verification, and ultimately rendered a reconsideration decision and served it in accordance with the law.

It was ascertained at trial that the Bureau’s administrative reconsideration procedure complied with the law and was not improper, and this determination was sustained by the court. The plaintiff's request to revoke the defendant's reconsideration decision lacked corresponding basis, and the court did not sustain it.

Accordingly, after discussion and decision by the court's adjudicative committee, in accordance with the provisions of Articles 69 and 79 of the "Administrative Procedure Law of the People's Republic of China," the judgment was: All of plaintiff Yuan Jianmeng's claims were rejected. The case acceptance fee of 50 yuan would be borne by plaintiff Yuan Jianmeng.

Appellant Yuan Jianmeng did not accept the aforementioned judgment and appealed making the following requests:

1. Rescind the judgment in the trial of first instance, and render a judgment rescinding the Heng Public (Cyber Security) Administrative Punishment Decision (2019) No. 67 administrative punishment decision and the Yu Public Reconsideration Decision (2019) No. 11 reconsideration decision rendered by the appellees.

2. All litigation fees to be borne by the defendant in the original trial承担.

Facts and Reasoning:

1. The facts determined in the judgment of the trial of first instance lacked evidentiary support. At 7:55 pm on January 25, 2019, appellant found the article titled "The 'Big Knife Brigade' In Hengxing Township, Did the King of the District Committee Really Serve the People?" while browsing the WeChat public account "Brilliant City Recommendations." Appellant the reposted the article on his Sina Weibo blogs "Understanding Chang'an Street" and "Understanding Baiwan Zhuang," and it was subsequently clicked on and viewed by others. Appellant was not the original author of the article involved. He just reposted an existing article from a website to his own blog, and he conducted searches on Baidu and other websites before collecting it on the blog to confirm that it was an article that had already been publicly disseminated, reposted, and transmitted, and that it was information known to the public-at-large. He had already fulfilled the duty of verification of the reposted article involved in the case, and Beijing Online, Zhejiang Online, domestic news and other websites, as well as the "Democracy and Law" magazine, had also reported some of the facts described in the article.

Therefore, appellant does not have a subjective motive to intentionally infringe on the reputation of others. The court of first instance, however, inferred the existance of appellant's subjective intent based on his identity as a journalist. This is contrary to legal common sense.

Everyone is equal before the law, and the law does not expressly stipulate that citizens who are journalists must have the obligation to verify when reposting and collecting articles. The court of first instance committed an error when it applied different legal treatment based on a citizen's identity.

In addition, the judgment in the original trial clearly determined that "the defendant's evidence about facts did not show that the plaintiff knew exactly that the content about Wang Xiaoli in the reposted article was fabricated." Appellee, as an administrative organ, had the legal obligation to produce evidence of illegal conduct. It is obviously not in accordance with laws and regulations for appellee to determine that appellant violated the law and impose administrative punishment when evidence was insufficient. Furthermore, the court in the trial of first instance cannot use a citizen's identity to infer that the appellee's administrative punishment was legal

2. The judgment in the trial of first instance applied the law incorrectly. Article 42(2) of the "Public Security Administrative Punishments Law of the People's Republic of China" and 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" stipulate that the fabrication of facts to defame a third party must be "with clear knowledge that facts are fabricated that will harm the reputation of a third party." This stipulation makes it clear that the subjective aspects of the illegal conduct must be intentional. The evidence provided by appellee clearly proves that appellant checked this article on other websites before reposting. Appellant fulfilled his duty of verification for that article, and subjectively there existed no intent to infringe on the reputation of others and no knowledge that there were fabricated false facts, and appellant did not anticipate the result. Intent means knowing subjectively and hoping that a result will occur. It is obvious that there is an inconsistency between the appellant's subjectivity and objectivity, and it does not constitute an intentional violation of law. The court of first instance's finding that the appellant "should have known" was a conjecture regarding the subjective attitude of the appellant.

Appellant believes that "should know" is what the individual "should have known" according to an individual's age, occupation, social life experience level, etc. Where an individual "should have known" but did not actually do not know, at most it can only constitute careless negligence, and not intent with clear knowledge. Where an actor should have known but there is insufficient evidence to prove their knowledge, it should not be regarded as what the individual "should have known."

The court of first instance only determined that the appellant "knew or should have known" based on  his identity as a journalist. It only inferred that the appellant had the capability and qualifications to verify the article he is suspected of having reposted in violation of the law, but failed to adopt basic verification measures, from the fact that he registered a blog and an account at his place of work. From the foregoing it incorrectly concluded the appellant should have known that the subject of the charges were untrue. Appellant doesn't know Wang Xiaoli, has never been to Shaanxi, and lacks the basic qualifications to conduct a verification as far as geography and interpersonal relationships are concerned. What's more, Appellant only reposted and collected on his own blog, and did not subjectively deliberately spread or disseminate. As far as that article is concerned, appellant in fact subjectively did not know it to be false, and appellee has no evidence proving what exactly the appellant knew, and therefore it should not be regarded as something he "should have known."

The court in the trial of first instance made reference to the provisions of Article 18 of the "Administrative Measures for Journalist Accreditation," but the object of these administrative measures applies to journalists in their use of their press cards to engage in news interviews and news broadcasts. It does not specifically regulate individual journalists who collect articles on their own blogs in their personal capacity. The court of first instance's application of the law was inappropriate.


The Heng Public (Cyber Security) Administrative Punishment Decision (2019) No. 67 administrative punishment decision rendered by the Public Security Bureau of Yulin, Hengshan Division and the Yu Public Reconsideration Decision (2019) No. 11 reconsideration decision rendered by the Public Security Bureau of Yulin have no legal basis. In accordance with the provisions of Article 70(2) of the Administrative Litigation Law, the people's court should rule to rescind the administrative acts of the Appellee.

Appellee Public Security Bureau of Yulin, Hengshan Division argues:

1. The facts determined by the court in the trial of first instance were clear and the evidence was copious. Appellant Yuan Jianmeng was a reporter for the Shanxi Newspaper Group's Development Herald New Horizons Weekly. On January 25, 2019, he did, without undertaking any verification, repost an article with the title "The 'Big Knife Brigade' In Hengxing Township, Did the King of the District Committee Really Serve the People?" from the Wechat public account "Brilliant City Recommendations" to the Sina Weibo blog "Understanding Chang'an Street" registered and used by him, and also pushed it to his personal Weibo account "Understanding Baiwan Zhuang," where it was clicked on 1,168 and 183 times, respectively. Yuan Jianmeng, as someone who worked as a journalist, spread the unverified information on a blog and a Weibo account that greatly affected the normal work and life of the Hengshan District Communist Party Committee Secretary Wang Xiaoli himself.

2. Yuan Jianmeng disseminated fact that he clearly knew harmed the reputation of third party but that had yet to be proven to be factual through an investigation. His actions constitute defamation. Yuan Jianmeng reposted an article with the title "The Big Knife Brigade"In Hengxing Township, Did the King of the District Committee Really Serve the People??" that made a connection between "The Big Knife Brigade," which was suspected of committing crimes, and Wang Xiaoli, the Hengshan District Party Committee Secretary. His goal in doing so was grab eyeballs and increase clicks. The content in the article "Wang Chengbao long oppressed the masses and harmed one party, under the protective umbrella and the inaction of the Secretary of the Hengshan District Committee, Wang Hao…" and "The Secretary of the Hengshan District Committee, Wang Hao...served as a protective umbrella for underworld forces" were charges that Wang Xiaoli was suspected of committing severe crimes.

Whether a citizen is suspected of a crime has to be based on investigations and determinations made by relevant State law enforcement agencies in the fulfillment of their authorized duties. Yuan Jianmeng failed to verify anything with relevant departments and there were no opinions from law enforcement agencies in the reposted article. He merely searched for an article titled "The Big Knife Brigade" on websites such as Baidu. Having naturally concluded that the contents of the article had been publicized by others, and had been reposted and disseminated, he naturally concluded that the content of this article was common knowledge among the public, and reposted this article on the Sina Weibo blog that he personally used and registered and his personal Weibo account.

An adult member of the general public can recognize that the authenticity of the charges against Comrade Wang Xiaoli in the article are unreliable based on common legal knowledge. As a journalist, Yuan Jianmeng had the duty to verify and identify the information he published and reposted, and he should have a higher level of awareness and judgment as to the authenticity and objectivity of information that he disseminates. He had a greater ability to recognize the baselessness of of the charges against Wang Xiaoli.

Yuan Jianmeng had the capability and qualifications to verify the suspected crimes charged in the article he reposted, but he failed to employ basic verification methods, and from this it can be determined that he should have known that the content of those charges was untrue. His act of reposting unverified information that damaged the reputation of a third party corresponds with the fabrication of facts to defame a third party in the offense of defamation in Article 246 of the "Criminal Law of the People's Republic of China" as interpreted in Article 1 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."

3. Our division applied the law correctly in this case, and the specific administrative penalties imposed were appropriate, fair. and just.  On January 25, 2019, Yuan Jianmeng did, without undertaking any verification, repost and disseminated an untruthful article, and his actions were suspected of being defamatory. Because his illegal actions did not constitute the commission of an offense under the "Criminal Law of the People's Republic of China," on January 29, 2019 our division subjected Yuan Jianmeng to eight days administrative detention in accordance with the provisions of Article 42(2) of the "Public Security Administrative Punishments Law of the People's Republic of China," and delivered him to the Hengshan District Detention Center to execute it on the same day.

In summary, the facts in the Heng Public (Cyber Security) Administrative Punishment Decision (2019) No. 67 administrative punishment decision rendered by our division are clear, the evidence is conclusive and copious, the law was applied correctly, and the procedures were lawful.

The judgment rendered by the court in the trial of first instance rejecting the appellant's claims was reasonable and lawful.

It is requested that the court in the trial of second instance reject the appeal in accordance with the law and uphold the judgment in the original trial.

Defendant Public Security Bureau of Yulin argued:

1. The facts of appellant's illegal actions facts are clear, the evidence is conclusive, and the Public Security Bureau of Yulin, Hengshan Division applied the law correctly, employed lawful proceedures, and applied appropriate punishment. The facts determined by the court in the trial of first instance were clear, and the evidence was copious.

2. The procedures of our bureau in rendering the administrative reconsideration decision were lawful, and the law was applied correctly. In accordance with the provisions of Articles 17 and 23 of the "Administrative Reconsideration Law of the People's Republic of China," on March 26, 2019 our bureau accepted Yuan Jianmeng's administrative reconsideration application in which he maintained he did not accept the Heng Public (Cyber Security) Administrative Punishment Decision (2019) No. 67 administrative punishment decision rendered by the Public Security Bureau of Yulin, Hengshan Division on January 29, 2019, and in accordance with the law notified the Public Security Bureau of Yulin, Hengshan Division to respond and submit relevant materials.

In accordance with the provisions of Article 22 of the "Administrative Reconsideration Law of the People's Republic of China," after the Public Security Bureau of Yulin, Hengshan Division sent the case files and written responses to our bureau, the police from the legal department of our bureau reviewed the case. On April 28, 2019, after legal department completed its review, the person in charge of the city's public security bureau convened the Law Enforcement Management Committee to discuss and study the matter, and determined that the facts regarding the Public Security Bureau of Yulin, Hengshan Division's handling of the case were clear, the evidence was copious, the procedures were lawful, and the law was applied correctly. It rendered a decision to sustain, and in accordance with the law, mailed the administrative reconsideration decision to appellant Yuan Jianmeng.

In summary, the administrative penalty decision rendered by the Public Security Bureau of Yulin, Hengshan Division and the administrative reconsideration decision rendered by our bureau have clear facts, copious evidence, lawful procedures, and correctly applied laws. The judgement in the trial of first instance had clear facts and correctly applied laws. It is requested that the appeal be rejected and the judgment in the original trial be upheld.

During the trial of second instance appellant Yuan Jianmeng produced a screenshot of a web page in order to prove: There existed actual facts relevant to the case, which were affirmed with the signatures and fingerprints of ordinary people. Appellant had fulfilled his duty of verification, and it should be deemed authentic content.

The opinion of appellee the Public Security Bureau of Yulin, Hengshan Division with respect to the evidence examined is: The time of the screenshot report is not clear, and the portion that is clearly visible is not related to the article the appellant reposted. The villagers' fingerprints cannot prove the authenticity of the content. The authenticity should be have been acknowledged by an official agency, and journalists should go to the scene to verify the authenticity of news. It does not acknowledge the probative value of the evidence.

The opinion of appellee the Public Security Bureau of Yulin with respect to the evidence examined is: It does not acknowledge the authenticity, relevance, and probative value of the evidence.

This Court certifies the aforementioned evidence as follows: The content contained in the screenshot was not issued by a statutory authority. Moreover, the content contained in the screenshot is not consistant with the content of the article reproduced by Appellant, and it is insufficient to substantiate the authenticity of the content of the article reproduced by Appellant. It is also insufficient to prove that appellant fulfilled his duty of verification, and it is not accepted as probative.

The facts ascertained in the trial of second instance were consistent with the facts ascertained at the trial of first instance, and are affirmed by this Court.

This Court finds: The point of dispute in this case is whether or not the appellant's conduct constitutes a fabrication of facts to defame a third party under Article 42(2) of the "Public Security Administrative Punishments Law of the People's Republic of China." With respect to this, pursuant to the provisions of Article (1) 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" (Judicial Interpretation(2013) No. 21), if the conduct of an actor involves fabricated facts that damage the reputation of others which are disseminated on information networks, it may be regarded as fabricating facts to defame others. In determining the authenticity of information, the disseminator shall bear the necessary burden of proof, especially in circumstances where the disseminated information may have an adverse effect on others and the public interest. This is the boundary for citizens' freedom of speech, and it is also the boundary for citizens to exercise their rights of supervision and criticism. It is also necessary to safeguard the legitimate rights and interests of others, social stability, and public order and fair practice.

According to the facts ascertained in this case, on January 25, 2019, the appellant reposted an article with the title "The 'Big Knife Brigade' In Hengxing Township, Did the King of the District Committee Really Serve the People?" from the Wechat public account "Brilliant City Recommendations" to the Sina Weibo blog "Understanding Chang'an Street" registered and used by him, and also pushed it to his personal Weibo account "Understanding Baiwan Zhuang," where it was clicked on over 1,300 times. The reprinted article alleged that "Wang Chengbao long oppressed the masses and harmed one party, under the protective umbrella and the inaction of the Secretary of the Hengshan District Committee, Wang Hao…" and "The Secretary of the Hengshan District Committee, Wang Hao...served as a protective umbrella for  underworld forces." The dissemination of the aforementioned information would obviously lower the reputation and social evaluation of the government agencies and personnel involved. When publishing the aforementioned assertions, however, appellant did not provide any authoritative corroborating determinations rendered by law enforcement agencies such as supervisory agencies, judicial agencies, prosecutorial agencies, etc. During the investigation by the public security agency and subsequent litigation, appellant also failed to provide probative evidence on which to base a judgment. Under these circumstances, the information released by him cannot be said to be true, and it is difficult to establish the reason why he believes that he has fulfilled his obligation to verify the content of the reposted content. Appellant should bear the corresponding adverse consequences for his own behavior.

Based on the facts it had ascertained, appellee Public Security Bureau of Yulin, Hengshan Division determined that Appellant’s behavior constituted a defamation, and in accordance with Article 42(2) of the "Public Security Administrative Punishments Law of the People's Republic of China" it imposed an administrative penalty of five days detention.2 There is nothing improper in its determination of the facts, its application of the law, or the degree of punishment it imposed.

The Public Security Bureau of Yulin reconsideration upholding the punishment decision was correct.

In summary, appellant’s claims lack a factual and legal basis, and the original judgment is rejecting appellant’s claims was correct, and is sustained by this Court.

Therefore, in accordance with the provisions of Article 89(1) of the "Administrative Procedure Law of the People's Republic of China," the judgment is as follows:

The appeal is rejected, and the judgment in the original trial is upheld.

The case acceptance fee of 50 yuan in the trial of second instance shall be borne by appellant Yuan Jianmeng.

This judgment shall be the final judgment.

Chief Adjudicator　　Ma Yurong
Adjudicator　　Wang Jing
Adjudicator　　Liu Hongmei

May 29, 2020

Clerk　　Kou Yanyan

 陕西省榆林市中级人民法院

行政判决书

（2020）陕08行终52号

上诉人（原审原告）原建猛，男，1982年 [INTENTIONALLY OMITTED]出生，汉族，山西省太原市人，住太原市迎泽区。


委托代理人张晋珍，山西文英律师事务所律师。

被上诉人（原审被告）榆林市公安局横山分局。住所地：陕西省榆林市横山区环城北路,统一社会信用代码：1161080001******。

法定代表人贺国钰，局长。

出庭负责人鲁建江，副局长。

委托代理人罗斌，系该局法制大队民警。

委托代理人惠浩，系该局网络安全保卫大队民警。

被上诉人（原审被告）榆林市公安局。住所地：陕西省榆林市榆阳区肤施路4号。统一社会信用代码：11610800016*******。

法定代表人邱祖满，局长。

委托代理人张皓、王龙，系该局法制支队民警。

上诉人原建猛因治安行政处罚一案，不服陕西省榆林市榆阳区人民法院（2019）陕0802行初70号行政判决，向本院提起上诉。本院受理后，依法组成合议庭审理了本案。现已审理终结。

上诉人原建猛向一审法院起诉请求：一、撤销被告横山公安分局2019年1月29日作出的横公（网安）行罚决字〔2019〕67号行政处罚决定书；二、撤销被告榆林市公安局2019年4月28日作出的榆公复决〔2019〕11号复议决定书；三、本案诉讼费用二被告承担。

原审法院经审理查明：原告原建猛为山西报业集团发展导报新视界周刊记者。2019年1月25日，原告在未经核实的情况下，将微信公众号“城市精彩推荐”上的题为《“大刀队”横行乡里，区委王效力真的为民效力了吗？》的文章转载在自己注册的新浪博客“长安街知事”并同步推送至其个人微博账号“百万庄知事”，点击量达到1300多次，构成诽谤违法事实。被告横山公安分局根据《治安处罚法》第四十二条第（二）项之规定，于2019年1月29日作出横公（网安）行罚决字〔2019〕67号行政处罚决定，对原告处以行政拘留八日的处罚。原告不服，向被告榆林市公安局申请复议，该局于2019年4月28日作出榆公复决〔2019〕11号复议决定书，依据《中华人民共和国行政复议法》（以下简称《行政复议法》）第二十八条第一款第（一）项之规定，维持了被告横山公安分局作出的前述行政处罚决定书。原告仍不服，向本院提起诉讼,提出前述诉讼请求。

原审法院认为，依据《治安管理处罚法》第七条的规定，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治安管理工作。治安案件的管辖由国务院公安部门规定。公安部《公安机关办理行政案件程序规定》第九条规定，行政案件由违法行为地的公安机关管辖。横山区系本案违法行结果主要发生地，属横山公安分局管辖地，故该局对涉案违反治安管理的行为具有进行调查、处理的法定职权。

《行政复议法》第十二条规定，对县级以上地方各级人民政府工作部门的具体行政行为不服的，由申请人选择，可以向该部门的本级人民政府申请行政复议，也可以向上一级主管部门申请行政复议。榆林市公安局作为横山公安分局的上一级主管部门，具有受理原告的行政复议申请，针对横山公安分局作出的行政行为进行相应审查并进行处理的法定职权。

本案的争议焦点在于原告转载文章的行为是否构成《治安管理处罚法》第四十二条第（二）项规定的捏造事实诽谤他人。对该违法行为的含义，本院参照《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》（以下称《解释》）第一条对《中华人民共和国刑法》（以下称《刑法》）第二百四十六条规定的诽谤罪中“捏造事实诽谤他人”的解释。

根据《解释》第一条和已查明的原告被处罚的行为，解决本案争议焦点的关键在于原告在转发文章时对其中关于王效力的内容是否符合该条第二款：“明知是捏造的损害他人名誉的事实”。对此，原告称二被告证据不足以证明该要件，且原告通过网络检索出处的方式核实了文章的真实性。而二被告辩称原告是记者，对转载内容有更高的核实义务，但未尽该义务，属于明知。本院认为，明知是行为人的主观心态，包括“知道”和“应当知道”两种情形。被告关于事实方面的证据中没有显示原告确切知道转发文章中关于王效力的内容系被捏造，故需要审查原告是否“应当知道”。“应当知道”是对原告主观态度的推测，必须依据各方面的证据材料，综合被传播的信息、行为人的身份、职业、生活经历等多方面的因素，综合评判。首先，被传播的王效力的内容为“王成宝长期欺压群众、为害一方，而他背后的保护伞，横山区委书记王效力的不作为……”、“横山区委书记王效力……充当黑恶势力的保护伞”，是对王效力的涉嫌严重犯罪行为的指控，而公民的犯罪嫌疑需要以国家相关执法部门的职权行为作为调查和认定的前提，原告在不向相关部门核实，且被转发文章中亦无执法部门判定意见的情况下，根据一般法律常识能够认识到此种指控的真实性不可靠。其次，原告是记者，参照《新闻记者证管理办法》第十八条“新闻记者使用新闻记者证从事新闻采访活动，应遵守法律规定和新闻职业道德，确保新闻报道真实、全面、客观、公正，不得编发虚假报道，不得刊播虚假新闻，不得徇私隐匿应报道的新闻事实”对记者职业准则的规定，其应当具有对所传播信息的真实性、客观性更高的认知水平和判断能力，故对被转发文章中对王效力指控的不真实性有更强的辨识能力。虽原告称其转发行为非职务行为，但此节事实对其认知能力并无影响，该抗辩不成立。最后，原告承认其转发文章所用博客账户在其单位注册，该情节同样表明原告通过该账户传播信息有更高的谨慎义务。综上，原告有能力和条件对其转发的涉嫌犯罪的指控进行核实的情况下，而未采用基本的核实手段，可以判定其应当知道该指控不真实。被告横山公安分局依据其在行政处罚程序中搜集的证据作出相同判断合法。

榆林市公安局在接到原告的复议申请后，履行了受理、通知答复、核查等程序，最终作出复议决定并依法送达，经审查该局履行行政复议程序符合法律规定，并无不当，本院予以支持。原告要求撤销被诉复议决定的请求事项缺乏相应依据，本院亦不予支持。

据此，经本院审判委员会讨论决定，依照《中华人民共和国行政诉讼法》第六十九条、第七十九条之规定，判决：驳回原告原建猛的全部诉讼请求。案件受理费50元，由原告原建猛负担。

上诉人原建猛不服上述判决，上诉请求：一、撤销一审判决，并判决撤销被上诉人作出的横公（网安）行罚决字〔2019〕67号行政处罚决定书和榆公复决〔2019〕11号复议决定书。二、本案诉讼费由原审被告承担。事实与理由：一、一审判决认定事实缺少证据支持。2019年1月25日晚上19点55分，上诉人在浏览微信公众号“城市精彩推荐”网站时发现了题为《“大刀队”横行乡里，区委王效力真的为民效力了吗？》的文章，于是上诉人将该文转载在自己的新浪博客“长安街知事”和“百万庄知事”，后被人点击查看。上诉人并非涉案文章的原创者，只是将网站上已有的文章转载于自己博客之中，并在收藏博客之前已在百度等网站上进行搜索，证实早已被人公开发表，已被转发、传播的文章，是大众所知的信息，对涉案文章的转载已尽到了核实义务，而且北京在线、浙江在线、国内新闻等网站以及《民主与法制》杂志也曾对该文章中所叙述部分事实进行过报道，因此，上诉人在主观方面不具有故意侵害他人名誉的动机，但原审法院根据上诉人是记者身份推断上诉人主观存在故意有违法律常识。法律面前人人平等，法律也并未明文规定记者身份的公民转载收藏文章必须有核实义务，原审法院依据公民身份，适用法律上差别对待是错误的。而且原审判决中已明确认定：“被告关于事实方面的证据中没有显示原告确切知道转发文章中关于王效力的内容系被捏造”，被上诉人作为行政机关，对于该违法行为有举证的法定义务，被上诉人在证据不足的情况下认定上诉人违法并给予以行政处罚显然不符合法律规定，一审法院更不能运用公民身份推断判决被上诉人行政处罚行为合法。二、一审判决适用法律错误。《治安管理处罚法》第四十二条第（二）项规定和《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》的捏造事实诽谤他人必须是“明知是捏造的损害他人名誉的事实”，该规定明确了违法行为主观方面必须是故意。被上诉人提供的证据中明显证明上诉人在转发之前在其它网站上查阅有此文章，上诉人对该文章已尽到了核实义务，主观不存在故意侵害他人名誉，也不知道是捏造的虚假事实，对于造成的结果上诉人并未预知到。故意是指主观方面知道，也希望结果的发生。显然上诉人主观方面与客观方面不一致，不构成故意违法。原审法院认定上诉人“应当知道”是对上诉人主观态度的推测。上诉人认为“应当知道”是按照行为的年龄、职业、社会生活经验水平等“本应知道”，对于“本应知道”但实际上确不知道的，至多也只能构成疏忽大意的过失，而非明知的故意。对于行为人本应知道但无充分证据证明其知道的，不应认定为“应当知道”。原审法院只是以上诉人是记者身份认定“知道或应当知道”，并以上诉人在单位注册博客、账号，就推断上诉人有能力和条件对其转发的涉嫌犯罪的文章进行核实的情况下，而未采用基本的核实手段，断定上诉人应当知道所指控不真实是错误的。上诉人不认识王效力，也从未去过陕西省，从地理和人际关系上均不具备基本的核实条件。更何况上诉人只是转发收藏于自己博客中，并不是主观故意散布或传播。对于该文章上诉人主观上确实不知其为虚假，而且被上诉人确无证据证明上诉人确切知道，故不应当认定为“应当知道”。一审法院参照《新闻记者证管理办法》第十八条的规定，但该管理办法适用对象是记者使用记者证从事新闻采访刊播新闻的规定，并末对记者个人以个人名义收藏文章到自己博客行为作具体规定，一审法院明显适用法律不当。榆林市公安局横山分局横公（网安）行罚决字〔2019〕67号行政处罚决定书和榆林市公安局作出的榆公复决〔2019〕11号行政复议决定书没有法律依据，依照行政诉讼法第七十条第二项的规定，人民法院应当判决撤销被上诉人作出的行政行为。

被上诉人榆林市公安局横山分局辩称：一、一审法院认定事实清楚，证据充分。上诉人原建猛系山西报业集团发展导报新视界周刊记者。2019年1月25日，原建猛在未经核实的情况下，将微信公众号“城市精彩推荐”上的题为《“大刀队”横行乡里，区委王效力真的为民效力了吗?》的文章转载在自己注册使用的新浪博客“长安街知事”并同步推送至其个人微博账号“百万庄知事”，点击量分别为1168次和183次。原建猛作为一名新闻工作者，将未经核实的信息发布在博客和微博账号上进行扩散，给中共横山区委及王效力本人正常工作、生活造成较大影响。二、原建猛明知是未经查证属实的损害他人名誉的事实仍然进行传播，其行为构成诽谤。原建猛转载的题为《“大刀队”横行乡里，区委王效力真的为民效力了吗?》的文章将涉嫌违法犯罪的“大刀队”与横山区委书记王效力联系到一起，以达到博人眼球增加点击量的目的。文章中“王成宝长期欺压群众、为害一方，而他背后的保护伞，横山区委书记王效力的不作为……”；“横山区委书记王效力……充当黑恶势力的保护伞”等内容，是对王效力的涉嫌严重犯罪行为的指控。公民有无犯罪嫌疑需要国家执法部门的职权行为作为调查和认定的前提。在未向有关部门核实，且被转发文章中无执法部门判定意见的情况下，原建猛仅仅是在百度等网站上进行搜索标题为“大刀队”的文章，就当然认为该文章中的内容被人公开发表，已被转发、传播，当然认为该篇文章中的内容是大众所知的信息，将该篇文章转载在自己注册使用的新浪博客和其个人微博账号上。一般的成年大众根据一般法律常识都能认识到文章中对王效力同志指控的真实性不可靠。原建猛作为一名新闻工作者，有对自己发表、转发的信息核查辨认的义务，应当具有对所传播信息的真实性、客观性更高的认知水平和判断能力，故对被转发文章中对王效力指控的不真实性有更强的辨识能力。原建猛在有能力和条件对其转发的涉嫌犯罪的指控进行核实的情况下，未采用基本的核实手段，可以判定其应当知道该指控内容不真实，其转发未经查实的损害他人名誉信息的行为符合《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》第一条对《中华人民共和国刑法》第二百四十六条规定的诽谤罪中捏造事实诽谤他人的解释。三、我局办理本案适用法律正确，作出的具体行政处罚适当，公平、公正。2019年1月25日，原建猛将未经核实的不实文章进行转载扩散，其行为涉嫌诽谤。因其违法行为尚未触犯《中国人民共和国刑法》，2019年1月29日，我局根据《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对原建猛给予行政拘留八日的处罚，当日送达横山区拘留所执行。综上所述，我局作出横公（网安）行罚决字〔2019〕67号行政处罚决定，事实清楚，证据确凿充分，适用法律正确，程序合法。一审法院作出驳回上诉人诉讼请求的判决合理合法。请求二审法院依法驳回上诉，维持原判。

被告榆林市公安局辩称：一、上诉人违法行为事实清楚、证据确凿，榆林市公安局横山分局适用法律正确、程序合法、处罚适当，一审法院认定事实清楚、证据充分。二、我局作出行政复议决定程序合法，适用法律法规正确。根据《中华人民共和国行政复议法》第十七条、第二十三条之规定，我局于2019年3月26日受理原建猛不服榆林市公安局横山分局2019年1月29日作出的横公（网安）行罚决字〔2019〕67号行政处罚决定提起的行政复议申请，依法通知榆林市公安局横山分局答复和提交相关材料。根据《中华人民共和国行政复议法》第二十二条之规定，榆林市公安局横山分局将案卷材料和书面答复送往我局后，我局法制支队民警对该案进行阅卷审查，2019年4月28日，法制支队审查后，经市公安局负责人主持召开执法管理委员会议研究，认为榆林市公安局横山分局办理此案认定事实清楚，证据充分，程序合法，适用法律正确，作出维持决定，并依法将行政复议决定书邮寄送达上诉人原建猛。综上，榆林市公安局横山分局作出的行政处罚决定和我局作出的行政复议决定，事实清楚，证据充分，程序合法，适用法律正确，一审判决认定事实清楚，适用法律正确，请求驳回上诉，维持原判。

上诉人原建猛在二审期间提举了网页截图一份，用于证明：确实有案涉事实存在，有普通民众签字按手印确认。上诉人已尽核实义务，应为真实内容。

被上诉人榆林市公安局横山分局对该份证据的质证意见为：截图报道时间看不清楚，能看清楚的部分与上诉人转载文章没有关联性，村民按手印不能证明内容的真实性，真实性应经过官方认可，且新闻记者应当对新闻的真实性去现场核实。对其证明目的不予认可。

被上诉人榆林市公安局对该份证据的质证意见为：对证据的真实性、关联性、证明目的均不予认可。

本院对上述证据认证如下：截图所载内容并非法定有权机关发布，且截图所载内容与上诉人所转载文章的内容不一致，不足以证实上诉人所转载文章内容的真实性，亦不足以证明上诉人已尽核实义务，对其证明目的不予采纳。

二审经审理查明的事实与一审一致，本院予以确认。

本院认为：本案的争议焦点在于上诉人的行为是否构成《中华人民共和国治安管理处罚法》第四十二条第二项规定的捏造事实诽谤他人。对此，参照《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》（法释〔2013〕21号）第一条第一项之规定，行为人的行为如具备捏造损害他人名誉的事实，在信息网络上散布这一特征，即可认定为捏造事实诽谤他人。而在信息真实性的判定上，应当由散布者承担必要的证明责任，特别是所散布信息对他人和公共利益可能造成不良影响的情况下，更是如此。这是公民言论自由的边界，也是公民行使监督、批评权利的界限，更是维护他人合法权益、社会稳定及公序良俗所必须。根据本案查明的事实，上诉人于2019年1月25日将微信公众号“城市精彩推荐”上的题为《“大刀队”横行乡里，区委王效力真的为民效力了吗？》的文章转载在自己注册的新浪博客“长安街知事”并同步推送至其个人微博账号“百万庄知事”，点击量达到1300多次。该转载文章指称“王成宝长期欺压群众、为害一方，而他背后的保护伞，横山区委书记王效力的不作为……”；“横山区委书记王效力……充当黑恶势力的保护伞”等情形，上述信息的散布显然会对所涉政府机关及人员的名誉及社会评价造成贬损。然而上诉人在发布上述论断性信息的同时，却并未提供监察机关、审判机关、检察机关等执法部门发布的权威认定予以佐证，在公安机关调查及之后的诉讼过程中，上诉人也未提供据以作出论断的有效证据。在此情况下，其发布的信息难谓真实，其认为自己对所转载内容已尽核实义务的理由亦难以成立，上诉人应当对自己的行为承担相应的不利后果。被上诉人榆林市公安局横山分局基于查明的事实，认定上诉人的行为构成诽谤，进而根据《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，对其作出拘留五日的行政处罚，在事实认定、法律适用及量罚幅度方面，均无不当。榆林市公安局复议维持该处罚决定正确。综上，上诉人的诉请缺乏事实根据与法律依据，原审判决驳回上诉人的诉讼请求正确，本院予以维持。据此，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之规定，判决如下：

驳回上诉，维持原判。

二审案件受理费50元，由上诉人原建猛负担。

本判决为终审判决。

审判长　　马玉荣

审判员　　王　静

审判员　　刘红梅

二〇二〇年五月二十九日

书记员　　寇艳艳

 

 

An Overview of China's First "Right to be Forgotten" Lawsuit

On May 4, 2016, the Haidian District People's Court in Beijing published an article on its website entitled "Haidian Court Completes Investigation in Nation's First Case of 'Right to be Forgotten'" (海淀法院审结全国首例“被遗忘权”案) Some excerpts:

Recently the Haidian Court concluded a case involving a lawsuit filed by Plaintiff Ren against a certain Internet Services Company for infringement of the right of reputation, name, and general personality.  On May 13, 2014, a European court issued a final judgment confirming that ordinary citizens have a "right to be forgotten" with respect to personal information, and following that the European Union has established the scope of a "right to be forgotten." During the two year period following the European court's recognition of the "right to be forgotten," the Haidian Court has concluded proceedings in the first case involving the scope of judicial protection of the "right to be forgotten" for a citizen's personal information. This case study has significant theoretical and practical value with respect to the issue of how China will conduct regulatory development and judicial practice to safeguard the "right to be forgotten" for personal information in the Internet age.

Mr. Ren's work related to various fields in the area of administration education, such as human resources management and business administration. Beginning on July 1, 2014 he performed educational work in those areas for a company in Wuxi. On November 26, 2014, that technology company issued a "Notice of Automatic Termination" to Mr. Ren, terminating the parties' labor relationship. A certain Internet service company was a commercial provider of search link services such as web page search and related search.

近日，海淀法院审结了原告任某某诉被告某网络服务公司侵犯名誉权、姓名权、一般人格权（“被遗忘权”）一案。2014年5月13日，欧盟法院作出了确认普通公民对个人信息拥有“被遗忘权”终审裁定，进而在欧盟范围确立了“被遗忘权”。在该权利被欧盟法院确认近两周年之际，海淀法院依法审结了公民个人信息“被遗忘权”司法保护领域的全国首例案件。该案件对我国在网络时代如何保护个人信息的“被遗忘权”问题进行了有益的规则探索和司法实践，具有理论和实务的重大研究意义。
   
任某某系人力资源管理、企事业管理等管理学领域的从业人员，其于2014年7月1日起在无锡某公司从事过相关的教育工作。2014年11月26日，该科技公司向任某某发出了《自动离职通知书》，解除了双方劳动关系。某网络服务公司系提供网页搜索、相关搜索等搜索链接服务的提供商。

It is unclear why the announcement refused to use the full names of the parties involved, particularly given that at the time the full text of both the decisions of the lower court and the court of appeals were available online without any of the parties' names being redacted. See:

• Court of First Instance: http://openlaw.cn/judgement/871644297dbd4481a1ba9c55ae2c2f3c
• Court of Appeals: http://wenshu.court.gov.cn/content/content?DocID=789e76ed-c084-41bb-8e75-a092cba58912

Screenshot of the Ren Jiayu Court of Appeals Decision on court.gov.cn.

 According to the text of the court judgments, the parties implicated were:

• Ren Jiayu (任甲玉), a designer and engineer born in 1972.
• Beijing Baidu Network Data Technology Company Limited (北京百度网讯科技有限公司)
• Taoshi Education (陶氏教育)
• Beijing Daoyaxuan Commercial Trading Company Limited (北京道雅轩商贸有限公司)

The following summary is based on the text of the court of first instance judgment, which was subsequently confirmed by the appellate court.

Ren Jiayu sued Baidu because:

Beijing Daoyaxuan Commercial Trading Company Limited (Party A) and Ren Jiayu (Party B) negotiated a mutually agreed voluntary formal termination of their labor agreement relationship to take place on March 12, 2015, with the termination grounds being, after Party A hired Party B on a trial basis, it was discovered that "Wuxi Taoshi Education Ren Jiayu" was appearing online on Baidu, and that many people believed that Taoshi Education was a dishonest company, with some going so far as to claim it was an evil cult. Because Party A required that the work performed by Party B be beyond reproach, both parties voluntarily terminated the contract. 

北京道雅轩商贸有限公司（甲方）与任甲玉（乙方）协商一致自愿于2015年3月12日正式解除劳动合同关系，解除理由是自甲方聘用乙方并开始试用后，发现百度网络上显示“无锡陶氏教育任甲玉”，陶氏教育被很多人称为骗子公司，甚至有人说是邪教，因甲方对乙方从事的工作需要对信誉度要求高，双方自愿解除合同，原定甲方聘用乙方约定的60万元年薪，由于时间短，乙方同意甲方不支付任何工资和任何经济补偿。

Ren Jiayu not only wanted Baidu to compensate him for the income he lost as a result of the termination of the labor contract, he also wanted the court to grant him injunctive relief against Baidu, specifically:

When entering "Ren Jiayu" into the Baidu search interface and conducting a search, the following six keywords shall not appear in the search results:

• Taoshi Ren Jiayu
• Taoshi Super Study Method
• Super Fast Study Method
• Super Study Method
• Taoshi Education Ren Jiayu
• Wuxi Taoshi Education Ren Jiayu

在百度搜索界面中输入“任甲玉”进行搜索，搜索结果中不得出现“陶氏任甲玉”、“陶氏超能学习法”、“超能急速学习法”、“超能学习法”、“陶氏教育任甲玉”和“无锡陶氏教育任甲玉”等六个关键词。

As the court put it, Ren Jiayu had two specific requests:

First, directly or indirectly confirm that a company he had previously collaborated with, "Taoshi Education," did not have a good professional reputation, and second, attempt to conceal, at least on the Internet, his work history from potential students and education cooperation clients.
两项具体的诉求意向:其一是正向或反向确认其曾经合作过的“陶氏教育”不具有良好商誉；其二是试图向后续的学生及教育合作客户至少在网络上隐瞒其曾经的工作经历。

This is probably a good point to pause and understand exactly what Ren Jiayu was objecting to. Ren did not claim that the "keywords" in question were appearing in Baidu's "organic" search results. That is, the listing of titles and snippets that generally take up the bulk of the space on a search result page.

Ren was objecting to what Baidu refers to as "Related Searches" (相关搜索). In the screenshot below the "related searches" for "Xi Jinping" are outlined in red.

 The court characterized Baidu's "Related Search" functionality this way:

Baidu's so-called Related Search Terms are automatically generated by the search engine based on entry statistics for terms with a relatively high usage frequency over a given period of time and the searched words that were related to them.
百度公司所称相关搜索词系由过去一定时期内使用频率较高且与当前搜索词相关联的词条统计而由搜索引擎自动生成，并非由于百度公司人为干预。

Ren believed he was entitled to relief in connection with the "Related Search" results displayed by Baidu because, according to him:

[He] never held a job at the Taoshi Education Company, and had never posted any information online about "Taoshi Education Ren Jiayu," "Wuxi Taoshi Education Ren Jiayu," etc., and because Taoshi Education is the subject of controversy, infringing information such as  "Taoshi Education Ren Jiayu" and "Wuxi Taoshi Education Ren Jiayu" has caused extreme harm to [his] reputation.
未曾在陶氏教育公司上班，也从未在网上上传过“陶氏教育任甲玉”、“无锡陶氏教育任甲玉”等信息，由于陶氏教育在外界颇受争议，“陶氏教育任甲玉”、“无锡陶氏教育任甲玉”等侵权信息给任甲玉名誉造成极大侵害。

The court stated that the central question in this dispute was:

Does Baidu's current technical model for "Related Searches" and the related service model constitute an infringement of the rights being advocated by Ren Jiayu in his lawsuit.
百度公司现有“相关搜索”技术模式及相应服务模式本身是否对任甲玉主张的涉诉权益构成现实的侵犯。

The opening sentence of the court judgment states that Ren had brought suit against Baidu for:

[I]nfringement of the right to reputation, right to name, and the general right to personality.侵犯名誉权、姓名权、一般人格权。

In addressing Ren's claim, the court considered one question of fact and one question of law:

• Question of Fact: Were the terms displayed by Baidu's "Related Search" service that referred to Ren Jiayu subject to any human interference?
• Question of Law: Did the technology model of Baidu's "Related Search" and the search service provided by the related service model constitute an infringement of Ren Jiayu's right to name, right to reputation, and the so-called "right to be forgotten" within the ordinary right to personality advocated by Ren Jiayu.
• 百度公司“相关搜索”服务显示的涉及任甲玉的检索词是否受到了该公司人为干预？
• 百度公司“相关搜索”技术模式及相应服务模式提供的搜索服务是否构成对任甲玉的姓名权、名誉权及任甲玉主张的一般人格权中的所谓“被遗忘权”的侵犯？

The court did not explain the relevance of the question fact, and simply found that there was no evidence of any human interference, and that it was therefore not possible that Baidu had any "specific intent" with respect to Ren Jiayu.

Moving on to the question of law, the court found that the six terms that Ren Jiayu had complained were infringing "did not either on their face or in fact have any judgmental implications, and in and of themselves were merely reference terms indicating their usage in online information retrieval." (本身并无表面及实质性的褒贬含义，本质仍属供网络信息检索使用之参考词汇). Furthermore, Ren apparently did in fact have a prior relationship with Taoshi Education, as the court found:

Based on Ren Jiayu's statements in court, he did in fact engage in actual commercial collaboration with Taoshi Education which was publicized in the media, and that commercial collaboration and publication information was being reflected on the Internet. 

根据任甲玉的法庭陈述，其之前确实与陶氏教育有过现实的业务合作与媒体宣传，这些业务合作与宣传信息反映在互联网上。

Given that it had already been established that Ren Jiayu did in fact have a prior relationship with Taoshi Education, the appearance of those terms was "an objective reflection of the history of Ren Jiayu's educational work with enterprises associated with Taoshi." (任甲玉从事与陶氏相关企业教育工作的历史情况的客观反映。)

The court therefore rejected Ren Jiayu's claim of infringement of his right to reputation:

Seeing as there exists neither a situation where words are being used to insult, nor a situation where facts are being fabricated to defame, it is clear that there exists no infringing act of insult or defamation with respect to Ren Jiayu. Therefore the aforementioned circumstances of Baidu's Related Search clearly does not constitute an infringement of Ren Jiayu's right to reputation. 

既不存在使用言辞进行侮辱的情况，也不具有捏造事实传播进行诽谤的情况，明显不存在对任甲玉进行侮辱、诽谤等侵权行为，故百度公司相关搜索的前述情形显然不构成对任甲玉名誉权的侵犯。

The court similarly rejected Ren Jiayu's claim of infringement of his right to name, which the court described as the right to "prohibit third parties from interfering with, misappropriating, or passing off as" one's own name. The court held:

Given that there has been no action by Baidu implicating human intervention in the "Related Search" terms regarding "Ren Jiayu," and nothing was specifically directed at a specific individual, then as regards something mechanical like "Related Search," the process whereby the relevant algorithm gathers and process the three characters "Ren Jiayu" is merely combining a string of characters, and does not constitute a meaningful name.  

既然百度公司并无人为干预“相关搜索”有关“任甲玉”词条的行为，没有特定个人的特定指向，那么，对于作为机器的“搜索引擎”而言，“任甲玉”这三个字在相关算法的收集与处理过程中就是一串字符组合，并无姓名的指代意义。

Having established that Ren Jiayu had no claims for the protection of any commonly recognized rights of personhood, the court turned its attention to whether or not a new "right to be forgotten" should be recognized as existing within the broader framework of the ”general right of personhood" (一般人格权). The court first clarified that foreign law would not form the basis of its decision:

China's law as it exists today is unable to define a category of rights that is the so-called "right to be forgotten." The "right to be forgotten" is only touched upon in foreign statutory and case law, which cannot serve as the legal basis for China's protection of this kind of right. 

我国现行法中并无法定称谓为“被遗忘权”的权利类型，“被遗忘权”只是在国外有关法律及判例中有所涉及，但其不能成为我国此类权利保护的法律渊源。

The court defined three criteria for determining whether such a right could be found  within China's own Tort Law:

The right to personhood or general right to personhood protects the subject's personal interests, and encompasses both those personal interests that have already been categorized as legally defined rights, as well as those legitimate legal interests that have not been so categorized but which should receive the protection of law. With respect to the latter, the following three criteria must be met simultaneously: they must not encompass those rights which have already been categorized, and they must be rights which are both legitimate and which require protection.
人格权或一般人格权保护的对象是人格利益，既包括已经类型化的法定权利中所指向的人格利益，也包括未被类型化但应受法律保护的正当法益。就后者而言，必须不能涵盖到既有类型化权利之中，且具有利益的正当性及保护的必要性，三者必须同时具备。

The first criteria was met because, as noted earlier, the court had found that the right that Ren Jiayu was asking the court to protect in this case was not covered by existing rights such as the right to reputation or the right to name.

As for the second and third criteria, the court found that Ren Jiayu arguably did have an "interest" in this case, because there was potentially a direct connection between Ren Jiayu and the information that he wanted "forgotten," to the extent that it could have an adverse impact on his professional reputation, which in turn could jeopardize his ability to recruit students and enjoy other employment opportunities and economic interests.

The court held, however, that Ren Jiayu's "interest" in having information "forgotten" was not "legitimate and requiring the protection of the law."

It is inappropriate to make an abstract assessment of whether a company's reputation is good or bad, or the cause-and-effect relationship a company's reputation may create. Furthermore there is also the latent competitive relationship between Ren Jiayu and Taoshi Education's affiliated enterprises given their operate in identical or closely-related professions. As regards the latter, the information at issue in this lawsuit regarding Ren Jiayu's work history relates to very recent events, and he continues to work in the business administration education profession. This information happens to form a portion of his professional history, and his current individual professional credibility is both of directly relevant and of ongoing concern. Ren Jiayu hopes to make use of his own good reputation in the industry to attract customers and students going forward, but information about his personal qualification is important information that customers and students rely on in making a judgment. Ren Jiayu's collaboration with Taoshi Education affiliated enterprises did not occur at a time when he was a minor or a person with limited or non-existent competence, and there existed no other legal basis for providing special protections to him as a member of a special group. 

不宜抽象地评价商誉好坏及商誉产生后果的因果联系，何况任甲玉目前与陶氏教育相关企业之间仍具有同业或相近行业的潜在竞争关系。就后者而言，涉诉工作经历信息是任甲玉最近发生的情况，其目前仍在企业管理教育行业工作，该信息正是其行业经历的组成部分，与其目前的个人行业资信具有直接的相关性及时效性；任甲玉希望通过自己良好的业界声誉在今后吸引客户或招收学生，但是包括任甲玉工作经历在内的个人资历信息正是客户或学生藉以判断的重要信息依据，也是作为教师诚实信用的体现，这些信息的保留对于包括任甲玉所谓潜在客户或学生在内的公众知悉任甲玉的相关情况具有客观的必要性。任甲玉在与陶氏相关企业从事教育业务合作时并非未成年人或限制行为能力人、无行为能力人，其并不存在法律上对特殊人群予以特殊保护的法理基础。

State Media: "Constructiveness of Journalism is More Important than Press Freedom"

On April 21, 2016, the state sponsored Global Times published an editorial entitled “Press Freedom Index Hides Absurd Logic.” Some excerpts:

Journalism advocacy group Reporters Without Borders (RWB) released its World Press Freedom Index Wednesday, ranking China fifth from bottom, and Vietnam just one place higher. The group, while criticizing Asian countries, including South Korea and Japan for deteriorating press freedom, has mainly pointed the finger at China.
. . . .
The constructiveness of journalism is more important than press freedom to developing countries. This constructiveness includes press freedom and supervision of the media, however it must incorporate understanding of different local political and economic development. The purpose of journalism is not to advocate its absolute freedom, but to help advance societal progress in a suitable way.

This theory, seemingly going against press freedom, could easily be misunderstood, but it has been repeatedly proved in the price paid by developing countries.

Admittedly, there is still a lot of room for improvement in China in the expanding scope of news reporting and enhancing information transparency. But when we make progress, we need to get rid of ways of thinking and logic that the West imposes on us.

These screenshots were taken on April 27, 2016, and show that both Baidu and Sina Weibo were censoring search results for “Reporters Without Borders” (无国界记者).

Censorship of Ma Yingjiu - Xi Jinping Meeting

On November 7, 2015, the state sponsored Global Times published an editorial entitled “Xi-Ma meeting Sceptics Show Narrow Minds.” Some excerpts:

The historic meeting on Saturday between Xi Jinping and Ma Ying-jeou has drawn heated discussions across the Taiwan Straits. Worries among some Taiwan people over the island being "dwarfed" seem more prominent than concerns on mainland social media of Taiwan being "lifted" too high.
. . . .
Major countries do not have diplomatic ties with Taiwan. The "One China" principle has been widely recognized in the world, which indicates Taiwan is not a country. International organizations either do not accept Taiwan, or consider it a regional body.

Taiwan society should accept reality, being aware that nobody in Taiwan can change it, and no international forces, including the US, can help change reality.

These screenshots were taken on November 7, 2015, and show that a search for "Xi Jinping Meets Ma Yingjiu" (习近平会见马英九) on Baidu News returned no results from websites ending in ".tw," the top level domain for Taiwan.

These screenshots were taken the same day, and show image search results for "Xi Jinping Ma Yingjiu Protests" (习近平 马英九 抗议) on Baidu and Yahoo Taiwan.

Baidu and Sina Block Discussion of Magna Carta

On October 16, 2015, the state sponsored Global Times published an article entitled “Magna Carta Moved to British Embassy for Practical Reasons: FCO.” Some excerpts:

Tian Dewen
Credit: CASS

British authorities on Thursday said that relocating the Magna Carta display from the
Renmin University of China to the British Embassy in Beijing was because of "administrative and logistical practicalities."
. . . .
The embassy first announced, via its official WeChat account, on October 9, that it would display the document at the Renmin University from Tuesday to Thursday. It later issued a notice changing the display location to the British ambassador's residence one day before the exhibition was due to open.

The abrupt change sparked speculation from Western media, with some reporting that the Chinese authorities blocked the exhibition at the Renmin University of China.
. . . .
There has been no speculation on the location change in the Chinese media.

Observers believed that there was no need to speculate on the location change, as it is common for cultural relic exhibitions.

"The Western media over-interpreted the change, and it's not necessary," Tian Dewen (田德文), a research fellow at the Chinese Academy of Social Sciences, told the Global Times.

These screenshots were taken on October 16, 2015, and show that Baidu had banned users from establishing a PostBar (Tieba 贴吧) forum on the Magna Carta (大宪章), and a search for “Magna Carta” on Sina Weibo returns no results, just a censorship notice.

Baidu Apparently Stops Censoring Non-Chinese Character Search Terms on its Brazilian Search Engine

On July 19, 2014, this blog noted that it appeared that, shortly after its initial launch, Baidu’s Brazilian Busa search engine was apply PRC government censorship to its search results. Here is a screen capture video taken on July 19 showing search results on Baidu Busca for “Falun Gong” (in Pinyin), Xi Jinping (习近平 in Chinese characters), and “Gao Zhisheng” (高智晟 in Chinese characters).

These screenshots were taken on July 22 and July 29, respectively, and show that, some time between those days Baidu appears to have stopped censoring searches for “Falun Gong” (in Pinyin).

To be more specific, these screenshots show that it appears that “Falun” was the term targeted for censorship, and that Baidu stopped targeting that term during that period.

These screenshots show that, as of August 6, Baidu appears to be continuing to provide the same results for Chinese character searches on Busca as it does on its PRC based search engine. The main difference being that, Baidu notifies users of its PRC based search engine, but not users of Busca.

Additional Posts on This Topic:

• Baidu Tells Chinese, But Not Brazilian, Users When It Censors  http://blog.feichangdao.com/2014/07/baidu-tells-chinese-but-not-brazilian.html
• Baidu Brazil vs. Bing Brazil: Searching for the New York Times Article Connecting Alibaba to China's Princelings  http://blog.feichangdao.com/2014/07/baidu-brazil-vs-bing-brazil-searching.html

More on Baidu's Victory Over the Those Who Would Deny It Its Right to Free Speech

Previous post on this topic: US Court Rules Baidu Enjoys Freedom of Speech, Baidu Bans Forums on “Freedom of Speech”

On March 27, 2014, Judge Jesse Furman of the US District Court in New York issued an opinion granting Baidu’s motion to dismiss the complaint against it by eight “New York residents who advocate for increased democracy in China.” The full opinion is available here - http://www.scribd.com/doc/214981183/Zhang-et-al-v-Baidu-Com-Inc-et-al.

The plaintiffs complained that Baidu:

censor[s] and block[s] from search engine results any article, publication, video, audio and any information in whatever format if its content deals with the Democracy movement in China or any of the following topics that are related to the Chinese Democracy Movement: The June 4th Movement, The Jasmine Revolution, The Jasmine Movement; The China Democracy Party National Committee and the Tiananmen Square Incident or movement.

Screenshots showing Baidu censoring search results for "China Jasmine Revolution"
and "Tiananmen Square Massacre" taken on March 31, 2014. Credit: Feichangdao.

The plaintiffs claimed that Baidu engaged in that censorship at the behest of the People’s Republic of China.
The judge stated in a footnote:

That Plaintiffs allege that Baidu exercises editorial judgment “in cooperation with and according to the policies and regulations of” China makes no difference to the analysis. Plaintiffs allege that Baidu “purposely designs its systems and search engines to exclude” specific content. Whether it does so at the behest, or in furtherance of the interests, of China does not bear on the nature or extent of Baidu’s First Amendment rights.

Andy Atkins-Krüger interviewing Baidu spokesperson Kaiser Kuo
Credit: Searchengineland, August 30, 2011.

The judge went on to say:

In short, Plaintiffs’ efforts to hold Baidu accountable in a court of law for its editorial  judgments about what political ideas to promote cannot be squared with the First Amendment. There is no irony in holding that Baidu’s alleged decision to disfavor speech concerning democracy is itself protected by the democratic ideal of free speech. As the Supreme Court has explained, “[t]he First Amendment does not guarantee that . . . concepts virtually sacred to our  Nation as a whole . . . will go unquestioned in the marketplace of ideas.” For that reason, the First Amendment protects Baidu’s right to advocate for systems of government other than democracy (in China or elsewhere) just as surely as it  protects Plaintiffs’ rights to advocate for democracy. Indeed, “[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Thus, the Court’s decision — that Baidu’s choice not to feature “pro-democracy political speech” is protected by the First Amendment — is itself “a reaffirmation of the principles of freedom and inclusiveness that [democracy] best reflects, and of the conviction that our toleration of criticism . . . is a sign and source of our strength.”

US Court Rules Baidu Enjoys Freedom of Speech, Baidu Bans Forums on “Freedom of Speech”

According to a March 27 report by Reuters:

Chinese Internet company Baidu Inc on Thursday won the dismissal of a U.S. lawsuit by pro-democracy activists who complained that Baidu illegally suppressed political speech on China's most widely used Internet search engine.

Eight New York writers and video producers had accused Baidu of creating search engine algorithms, at the behest of China, to block users in the United States from viewing articles, videos and other information advocating greater democracy in China.
. . . .
U.S. District Judge Jesse Furman in Manhattan, however, concluded that the results produced by Baidu's search engine constituted protected free speech under the U.S. Constitution, warranting dismissal of the May 2011 lawsuit.

"The First Amendment protects Baidu's right to advocate for systems of government other than democracy (in China or elsewhere) just as surely as it protects plaintiffs' rights to advocate for democracy," the judge wrote.

Furman likened a search engine's "editorial judgment" to that of a newspaper editor who decides which stories to publish.

The case is Zhang et al v. Baidu.com Inc, U.S. District Court, Southern District of New York, No. 11-03388.

This screenshot, taken on March 27, shows that Baidu has banned users from establishing a PostBar (贴吧 Tieba) forum on the topic of “Freedom of Speech” (言论自由), and that a search for that phrase on Baidu’s Library (Wenku 文库) product yields no results.

Searching for Information About Milk Powder Safety on China's Web Sites: From Sanlu to Yili to Fonterra

On August 5, 2013, China.org.cn, a web site operated by the Chinese government's State Council Information Office, published an op-ed entitled "New Zealand Needs to Start Building Trust in the Long-Term." Some excerpts:

But with yet another trade imbroglio, this one Fonterra's botulism scare, surely it's time to ask the New Zealand government: "Where's the quality control?" 

Fonterra might have come away with some credit had it moved quickly to isolate the affected produce and implement a recall, but when such a problem takes more than a year to come to light, it's elevated from an industry event to a national issue.
. . . .
While it's true the government isn't responsible for the contamination of Fonterra produce, it should be held accountable for the fact that nothing was done to identify the problem before it was dispatched to export markets and domestic customers.

This screenshot was taken on August 5, 2013, and shows that a search for "Fonterra Botulism" (恒天然 肉毒杆菌) returned over 170,000 results.

Yili Milk Powder

On June 15, 2012, the state sponsored Global Times reported:

Dairy producer Mongolia Yili Industrial Group Co said yesterday that it has started recalling most of its Quanyou series formula milk powder produced from November 2011 to May 2012 since Wednesday, due to excessive mercury content which is harmful to the nervous system.

The screenshots, taken the same day, show that while searches on Sina Weibo returned results for "Yili" (伊利) and "Milk powder" (奶粉), searches for "Yili milk powder" (伊利 奶粉) and "Yili mercury" (伊利 汞) returned no results, just a censorship notice.

Sanlu Milk Powder and Li Changjiang

On December 28, 2009, the state-sponsored China Daily published an article entitled "Tainted Milk Official in New Role." Some excerpts:

A government minister who lost his job over last year's tainted baby formula scandal has been appointed deputy head of a department leading China's war on porn. 

Li Changjiang, 65, former head of the top quality agency, is now vice-director of the National Office Against Pornographic and Illegal Publications.
. . . .
Li resigned as minister of the General Administration of Quality Supervision, Inspection and Quarantine days after the Sanlu milk scandal was exposed last September. 

The State Council had made a statement that the quality administration had to bear "supervision responsibility for the milk food contamination". 

The tainted formula killed six children and led to more than 300,000 more suffering urinary tract problems, such as kidney stones.

These screenshots were taken in December 2009, and show that searches on Baidu and Youdao for "Poison Milk Official Who Stepped Down Li Changjiang Reinstated" (毒奶粉下马的李长江复职) returned no results, just a censorship notice.

Zhao Lianhai and Kidney Stone Babies

In 2010, Zhao Lianhai (赵连海) was sentenced to 2½ years imprisonment for "disturbing social order" after he started the "Home for Kidney Stone Babies" (结石宝宝之家, jieshibaobao.com) web site and attempted to lead parents in getting restitution and treatment for their children who had been poisoned by Sanlu's melamine-tainted milk powder.

These screenshots were taken in November 2010, and show that the state-sponsored newspaper Southern Weekend posted, and then deleted, an article entitled "Kidney Stone Baby Father Zhao Lianhai's Lawyer is Dismissed" (结石宝宝父亲赵连海律师被解除委托).

This screenshot was also taken in November, 2010, and shows that Baidu was restricting search results for "Zhao Lianhai" to a white list of about a dozen web sites controlled by the central government and the Communist Party.

On November 2, 2011, China's state-run media reported that a Beijing court had ordered Hudong (互动) CEO Pan Haidong (潘海东) to pay 120,000 yuan in compensation and publish 30 days' of apologies to Baidu for making defamatory statements including: "Baidu once took 3,000,000 yuan to help the Sanlu Group block negative information about the Sanlu melamine poisoned milk powder incident" (百度曾帮助三鹿集团屏蔽三聚氰胺毒奶粉事件的负面消息并借此挣了300万). According to the report:

This court's decision not only held that Pan Haidong should be held responsible as a public figure for spreading malicious rumors, it also washed Baidu clean of the misrepresentations and misunderstandings it had suffered from some Internet users who did not know the facts. 

此没有事实依据的言论被法庭认定判定为“已构成用侮辱及诽谤方式侵害百度公司名誉权的侵权行为”。此次法庭的判决，一方面追查了潘海东作为公众人物恶意传谣应负的责任，一方面也洗清了百度在此问题上曾经遭受一些不明真相网友的误传和误解。

Zhao continued to campaign after his release, and in January 2012 he tried to launch a poll on Sina Weibo asking people whether they supported Sina's censorship of the phrase "Kidney Stone Babies." Here's a translation of his poll:

Do You Support Sina Weibo Blocking Keywords Related to "Kidney Stone Babies"?
Participants: 438
According to Baidu's Baike Entry on Kidney Stone Babies:
"Kidney Stone Babies" (结石宝宝) refers to those infants who became ill with "twin recurring kidney stones" and "urethra kidney stones" as a result of ingesting infant formula containing melamine from Sanlu and other brands. This was a phrase that arose after China's 2008 Sanlu Milk Powder Incident, and expressed the concern and pity people had for these children.
However, in the years following the Kidney Stone Babies incident, all information about assisting Kidney Stone Babies published on Sina Weibo has been completely blocked by Sina Weibo. So I want to ask: What law does the phrase Kidney Stone Babies actually violate? What regulation does it violate? As a large media broadcasting company, Sina is not only not helping Kidney Stone Babies, on the contrary, it is for a long time blocked searches relating to Kidney Stone Babies. Their behavior flies in the face of the bottom line for social morality. I demand that Sina must stop blocking the phrase Kidney Stone Babies and Apologize!
Sina Must Stop Blocking the Phrase Kidney Stone Babies and Apologise: 437 (100%)
Support Sina's Censorship: 1 (0%).

This screenshot was taken on the same day Zhao launched his poll, and shows that a search on Sina Weibo for "Kidney Stone Babies" returned no results, just a censorship notice.

These screenshots show that, within hours after Zhao launched the poll, Sina deleted it.

Here's Zhao's Weibo posts about the censorship:

9:36 pm Its really weird: Sina sent me a system notice clearly saying: "Your poll 'Do You Support Sina Blocking Phrases Relating to Kidney Stone Babies?' has been deleted." But when I look now its still possible to vote at this address http://t.cn/Sa5Ar7, and there are currently 413 people who have voted for "Sina Must Stop Blocking the Phrase Kidney Stone Babies and Apologise"!
好奇怪：新浪发来的系统通知明明说“你支持新浪微博屏蔽结石宝宝相关词条吗？”这个投票被删除，但发现目前还可以投票呢，投票地址：http://t.cn/Sa5Ar7 目前投给“新浪必须解除所有结石宝宝词条屏蔽并道歉”这一项的已达到413人！ 

9:59 pm Damn! The Sina Poll has been completely deleted http://t.cn/Sa5Ar7. The last time I checked there were over 455 vote for "Sina Must Stop Blocking the Phrase Kidney Stone Babies and Apologize," and the number of voters was growing rapidly, with only one vote for "Support Sina's Censorship." Its really gratifying to see those supporters in just four hours. Censors - we will not forget!
他娘的！新浪那个投票还是被彻底删除了 http://t.cn/Sa5Ar7 ，最后我看到的投票数字是455投给“新浪必须解除所有结石宝宝词条屏蔽并道歉”这一项，并且投票速度逐渐在加快，只有1票投给“支持新浪屏蔽”。短短4个小时看到的支持让人欣慰！删吧，咱先记上！

These screenshots were taken on August 5, 2013, and show that Sina Weibo was not censoring search results for "Zhao Lianhai" or "Kidney Stone Babies.

These screenshots were taken the same day, and show that Baidu was still banning users from creating PostBar (Tieba 贴吧) forums about "Zhao Lianhai" and "Kidney Stone Babies."

When It Comes to Real Name Registration, State Media Editorial Says Readers Should Ignore South Korean Court's Declaration That Such Systems Violate Right to Free Speech

Beginning in late 2011, Beijing and other large municipalities in China began issuing regulations requiring micro-blogging platforms such as Sina's Weibo to verify users' identities. For example, on December 16, 2011 the Beijing Municipal Government Information Office, Public Security Bureau, Communications Administration, and Internet Information Office jointly issued the "Certain Provisions on the Administration of Micro-Blog Development" stating:

Any organization or individual that registers a micro-blog account and produces, reproduces, publishes, or disseminates information content shall use real identity information, and shall not carry out registration by falsifying or replicating a resident's identity information, business registration information, or organization code information. 

Websites that launch micro-blog services shall ensure that the authenticity of registered user information under the preceding paragraph.

According to an article entitled "Weibo Regulations a Step on the Right Path" published in the state-sponsored Global Times the day after Beijing issued the Provisions:

The new regulations, in theory, are pertinent to solving weibo's urgent problems without harming its good effects. South Korea has already ordered real-name registration for the Internet.

On December 22, the state-sponsored China Daily also sought to reassure readers that this was "Common Practice":

China is not the only country to resort to real-name registration to monitor the Internet. The government of the Republic of Korea started to implement a real-name authentication system on its major websites in 2007 to prevent Internet violence, fraud or malicious information spreading.

In 2009, the system was expanded to cover all websites with daily visits of over 100,000.

On August 23, 2012, the Constitutional Court of South Korea issued its decision in the application of Sohn et. al. unanimously holding that Korea's Internet real name systems were unconstitutional because "they infringe upon freedom of expression and autonomous control of personal data."

On August 24, 2012, the official state news agency Xinhua and the state-sponsored China Daily  published an editorial entitled "No Need to Be Overly Concerned About Korea Abolishing Its Real Name System" (不必对韩国取消实名制过分惊诧) by Wu Dingping (吴定平). An excerpt:

Korea's Constitutional Court recently officially declared that the Internet real name law that had been in effect since 2007 was henceforth abolished. Korea was one of the first countries to promote an Internet real name system, so does abolishing it after five years of implementation indicate that problems exist with the Internet real name systems? Should China continue with its implementation?
. . . .
On the one hand, at the time Korea originally implemented its Internet real name system, it did in fact provide a positive example for China to learn from, and even acted as our reference model. On the other hand, China's implementation of an Internet real name system was not mechanical mimicry, nor was it simply "copying." Therefore, the fact that today Korea has eliminated its Internet real name system does not mean that China should do so tomorrow. These two have no definite logical relationship. 

Why did Korea's love affair with its real name system come to an end? Fundamentally, there were no actual problems with the real name system, rather the main issue was that Korea had insufficient protections for personal privacy, and this led to significant pressure on, and resistance to, the real name system, and led ultimately to a fatal attack on it. Comparatively speaking, China has done a better job in this area. 

韩国宪法法院近日正式宣布，废除2007年生效的网络实名制法案。韩国是世界上较早推行网络实名制的国家，在实行五年之后宣布废除，这是否代表网络实名制存在问题？我国还要不要继续推行？广大网民对此比较关心。
. . . .
对于这个问题，应本着实事求是的原则。一方面韩国当初推行网络实名制，的确为我国提供了有益的借鉴，甚至还是我们参照的一个样本；但另一方面我国推行实名制不是对韩国的机械效仿，更不是简单“拷贝复制”。因此，韩国取消实名制的今天并不就是我国实名制的明天，两者之间不存在必然的逻辑关系。 

韩国实名制为何“始乱终弃”、半途而废？本质而言不是实名制本身存在问题，而主要是缘于韩国在个人隐私保护方面做得不够到位，给实名制带来巨大的压力和阻力，最终产生致命性的打击。相比较而言，我国在这方面做得相对较好。

The editorial went on to discuss what the author says are China's extensive legislative protections for user privacy which "serve as 'escort vessels' for the smooth implementation of the real name system." (为实名制的顺利推行起到“保驾护航”的作用)

Whether or not China's real name system will avoid the security concerns that plagued Korea's implementation, the fact is the editorial's premise is false: the South Korean Constitutional Court explicitly said it was NOT going to rule on the privacy issue. The Court's decision stated:

Applicant Sohn et al. further assert that the mandatory verification of user identity restricts bulletin board user’s right to privacy as it obliges the user to disclose the personal data such as name,resident’s registration number, etc. However, we have already explained that the mandatory verification of user identity restricts user’s right to autonomous control of personal data, which is a concrete manifestation of the right to privacy. As we shall decide whether the restriction of user’s right to autonomous control of personal data amounts to infringement, there is no need for us to rule upon the alleged infringement of the right to privacy.

Instead, the Court said that "the focal issues of this case are whether the restrictions imposed by the mandatory verification of user identity are disproportionate and excessive."

Ultimately, the Court found as follows:

We find that the mandatory verification of user identity stipulated in the provisions under review operates as prior restriction of freedom of expression. It discourages expression in general and thus restrains constitutionally protected speech and it hampers free formation of public opinion which is at the heart of democracy. The provisions under review impose excessive restrictions and infringe upon freedom of expression and autonomous control of personal data of Applicant Sohn et al. and upon freedom of press, etc. of Applicant Company.

An English translation of the Korean Court's decision by Professor Keechang Kim, Korea University Law School is available here: http://openweb.or.kr/wp-content/uploads/2012/09/Korean-Constitutional-Court-declares-real-name-verification-unconstitutional.pdf