Tencent's Weixin Censors 1980's People's Daily Article on Cult of Personality

On September 3, 2023, an article titled "People's Daily: Exaggerating the Personal Role of Leaders to an Extreme Level will Lead to Superstitious Belief in the Individual" (人民日报：把领袖个人的作用夸大到极端的程度，就会出现对个人的迷信) was posted on the "The Reading Drawer" (抽屉读书) public Weixin account. It was censored within 24 hours and replaced with a notice saying: "This content cannot be viewed due to violations. Complaints were made by users and audited by the platform. This involves the use of words, pictures, videos, etc. that exaggerated, seduced and violated objective facts to maliciously incite, confuse and mislead users. Check the corresponding rules."

• Original URL: https://mp.weixin.qq.com/s/bS50iboCf-nLMkbZ8AmHPA
• Archives: https://archive.li/https://mp.weixin.qq.com/s/bS50iboCf-nLMkbZ8AmHPA

I checked, and the Weixin article is a word-for-word copy paste of the referenced People's Daily article, which was published on Page 2 of the July 4, 1980 edition, according to the copy I found here: https://cn.govopendata.com/renminribao/1980/7/4/2/#542014 - with one exception, which I don't this is material:

• Weixin Article: 马克思主义者要承认个人权威，重视个人权威的，但是，我们首先要强调的还是集体的权威。
• govopendata: 马克思主义者是承认个人权威，重视个人权威的，但是，我们首先要强调的还是集体的权威。

The only other difference is the addition of the photo at the top of the Weixin article. Based on some online research, this is a photo of Nikita Khrushchev during his trip to the United States in 1959. 

Below are selected translations from the article (emphasis added by me).

Deification of, and superstitious belief in, the individual begins with exaggerating the role of the individual. Lin Biao and the "Gang of Four" engaged in modern superstition, not only taking advantage of people's simple feelings, but also taking advantage of these loopholes in people's understanding.

A Profound Lesson in Personal Deification

The communist movement and our own experience show that when the role of individual leaders is exaggerated to an extreme level, superstitious belief in individuals will emerge.

For many years, we have been accustomed to using superstition to explain the history of our struggles. Now, as Marx said, we should "use history to explain superstition." (The Complete Works of Marx and Engels, Vol. 1, p. 425) That is to say, we should take a look at history, how did a man become a "god"? How did people come to deify and superstitiously believe in individuals? In this way, the necessary lessons can be drawn. This is a rather complex and difficult task. Here are just a few examples, briefly.

. . . .

Our Party is organized according to the principle of democratic centralism. According to this principle, the Party line must be discussed and formulated by the Party's national congress or central authority. Although the Party's line is sometimes put forward by a certain person, once it is decided, it becomes the Party's line and cannot be attributed to an individual, it is called the line of so-and-so. Of course, when summing up historical experience, calling the opposing lines the lines of a certain person, and comparing and analyzing them will help distinguish right from wrong and educate the entire Party. But this is a special situation. From the perspective of organizational principles, within the Party, all Party members must implement the Party's line, rather than the entire Party following the line of a certain individual.

However, for a period of time, people have often attributed the Party's line to individuals, and also promoted all the opinions and propositions of individual leaders as lines, or believed that they have the same authority as the Party's line, and the whole Party must unconditionally implement it. In this way, in the life of the Party, in fact, some abnormal practices gradually took shape: obeying the Party's leadership means listening to a certain person, implementing the Party's line means doing what a certain person says, and thinking that as long as you act "in accordance with every sentence," you will be invincible. This actually regards the individual as a sacred authority over the entire Party.

. . . .

We must be highly conscious and take various measures to prevent the situation where the top leaders look down at the masses from above, while the masses can only squint and look up at the leader from below, so as to prevent the leader from becoming a figure that ordinary people cannot approach. The guidelines for political life within the Party passed by the Fifth Plenum of the Party Central Committee have made a series of specific regulations to prevent leaders from becoming special in their political life and from praising leaders without principle. This is undoubtedly necessary. However, in order to achieve what Lenin said, to make the leaders and the class, and the leaders and the masses form a whole, we still need to make efforts in many aspects and have a series of effective methods. For example, restore the system that our Party advocates that senior leading cadres must spend a certain amount of time at the grassroots level in a year; establish a system for leaders to communicate directly with the people; put senior leaders in fixed electoral districts to maintain regular contact with voters and accept voter supervision; cancel all kinds of unreasonable regulations that completely separate senior leaders from ordinary cadres and the masses in daily life (such as housing, transportation, shopping, entertainment, etc.); and we must use newspapers and radio to exert the supervisory power of public opinion, etc. In short, we should continue to adhere to the methods that have worked well in the past, and at the same time, we should continue to adopt some new methods based on new situations. 

. . . .

To gather the experience and opinions of the broad masses and the entire Party and form correct leadership ideas and opinions, it is necessary to adopt democratic centralism and collective research and discussion. The view that "the first secretary has absolute truth, the second secretary has relative truth, and the others have no truth" is not in line with the facts.

. . . .

Second, we must treat the right of one vote correctly. In the leadership team, the top leader has more responsibilities but no greater power. He has only one vote in deciding major issues, while other members have the same vote. Why do some leadership groups form a "one-man-talk" situation? The first is that the top leader lacks a democratic style and engages in personal arbitrariness. At the same time, it is also an important reason why each leading member cannot exercise his right to vote seriously and responsibly. If every leading member can responsibly exercise his right to one vote, especially when some people put forward wrong propositions, everyone can stick to the principles and not support or veto them, then can "one word" be achieved? Can personal arbitrariness prevail unimpeded? Can those wrong and confusing decisions be made easily? Therefore, every leading member must exercise his right to vote with the utmost solemnity when deciding major issues.

. . . .

Marxists must recognize and value individual authority, but the first thing we must emphasize is collective authority. Only when personal authority is combined with collective authority can it play its role better.

神化个人、迷信个人，是从夸大个人的作用开始的。林彪、“四人帮”大搞现代迷信，除了利用人们的朴素感情外，也钻了人们在认识上的这些空子。

神化个人的深刻教训

共产主义运动和我们自己的经验说明，把领袖个人的作用夸大到极端的程度，就会出现对个人的迷信。

多年来，习惯于用迷信来说明我们的斗争历史，现在，应该象马克思说的那样，“用历史来说明迷信”。（《马克思恩格斯全集》第１卷第４２５页）这就是说，应当从历史上看一看，人是怎样成为“神”的？人们是怎样神化个人、迷信个人的？这样，才能得出必要的经验教训。这是一项相当复杂而艰巨的任务。这里仅举几个例子，简略地说一下。
. . . .
我们的党是按照民主集中制的原则组织起来的。根据这个原则，党的路线必须由党的全国代表大会或中央权力机构讨论制定。党的路线尽管有时是由某个人提出来的，但一经作出决定，就成了党的路线，而不能归之于个人，称为某某人的路线了。当然，在总结历史经验时，把对立的路线分别称之为某某人的路线，加以对比分析，这样做，有利于分清是非，教育全党。但这是一种特殊的情况，从组织原则说，在党内，所有党员必须执行党的路线，而不是全党执行某一个人的路线。

但是，一个时期以来，人们却常常把党的路线归之于个人，而且，又把领袖个人的一切意见主张都上升为路线，或认为具有党的路线那样的权威性，全党必须无条件地执行。这样，在党的生活中，实际上就逐渐形成了某些不正常的准则：服从党的领导就是听某一个人的话，执行党的路线就是照某一个人说的去干，而且认为，只要“句句照办”，就能无往而不胜。这实际上是把个人看成为凌驾于全党之上的神圣权威了。
. . . .
我们要以高度的自觉，采取各种措施，防止出现领导上层从上面向下看群众，而人民群众只能眯着眼睛从下面向上望领袖的状况，防止领袖成为普通群众无法接近的人物。党的五中全会通过的党内政治生活准则，对防止领导人政治上生活上的特殊化，防止对领导人无原则的歌功颂德，已经作了一系列具体的规定。这无疑是很必要的。但是，要做到列宁讲的，使领袖与阶级、领袖与群众结成一个整体，则还要作多方面的努力，还要有一系列有效的办法。比如，恢复我们党提倡的高级领导干部一年要有一定时间下基层的制度；建立领导者与人民群众直接对话的制度；把高级领导人放到固定选区保持与选民的经常联系并接受选民监督；取消在日常生活中（如住房、坐车、购物、娱乐等）把高级领导人与一般干部和群众完全分开的种种不合理规定；各种代表大会作为权力机构，要切实加强对领导工作人员的监督，并要利用报纸、广播，发挥舆论的监督力量，等等。总之，凡是过去行之有效的办法应当继续坚持，同时，要根据新的情况，不断采取一些新的办法。
. . . .
要把广大群众和全党的经验、意见集中起来，形成正确的领导思想和领导意见，就必须通过民主集中制，通过集体研究讨论。那种“第一书记有绝对真理，第二书记有相对真理，其他人没有真理”的看法，是不符合事实的。
. . . .
第二，要正确对待一票的权利。在领导班子中，第一把手负有更多的责任，但并没有更大的权力，在决定重大问题时，他只有一票的权利，而其他成员也有同样一票的权利。为什么有的领导班子形成“一言堂”的局面呢？首先是第一把手缺乏民主作风，搞个人专断。同时，各个领导成员不能严肃负责地行使自己一票的权利，也是一个重要原因。如果每一个领导成员都能负责地行使自己一票的权利，特别是在某些人提出错误的主张时，大家都能坚持原则，不予支持，或给以否决，“一言堂”能搞得起来吗？个人专断能畅行无阻吗？那些错误的、颠倒是非的决定，能够轻而易举地作出来吗？因此，每一个领导成员，在决定重大问题时，一定要以极其郑重的态度行使自己一票的权利。
. . . .

马克思主义者要承认个人权威，重视个人权威的，但是，我们首先要强调的还是集体的权威。个人权威只有与集体权威相结合，才能更好地发挥其作用。

Translation: Court Judgment in Wang Aizhong Political Tweeting Case

Translator's Notes:

• I have translated the crime that Wang Aizhong was convicted of (寻衅滋事罪) as "disturbing the peace." Other translators use "picking quarrels and provoking trouble."
• The court did not specify what Wang Aizhong shared on social media that disturbed the peace.  Here are his last three tweets that he posted prior to his detention on May 28:
• On May 26, Wang retweeted a post by the New York Times linking to the Chinese language version of an article titled "Biden Orders Intelligence Inquiry Into Origins of Virus."
• On May 26, Wang posted "Someone logged into my telegram account. Their attacks on private communication software and surveillance is getting more and more insane.
• On May 24, Wang quote tweeted a post by the Wall Street Journal to the Chinese language version of an article titled "Belarus Faces EU Flight Ban for Grounding Ryanair Plane With Dissident." Wang added "Some folks really have guts. Certain other countries could stand to learn something from them."
  

People's Court of Tianhe District, Guangzhou, Guangdong

Criminal Judgment

(2022) Yue 0106 Criminal First Instance No. 377

The public prosecution agency was the People's Procuratorate of Tianhe District

Defendant Wang Aizhong, male, born on December 13, 1976, Han nationality, university degree, household registration in Guangzhou City. On May 28, 2021, he was taken into custody in connection with this case. He was taken into criminal detention the following day, and he was formally arrested on July 6 of the same year. He is currently being held in custody at the Tianhe District Detention Center in Guangzhou.

Defense counsel Ge Wenxiu is a lawyer at the Guangdong Lucheng Dingbang Law Firm.

Defense counsel He Weimin is a lawyer of Guangdong Jingguo Law Firm.

In the Sui Tian Procuratorate Criminal Prosecution (2022) No. Z10 Indictment the People's Procuratorate of Tianhe District, Guangzhou, Guangdong, charged defendant Wang Aizhong with committing the crime of disturbing the peace, and on January 27, 2022 it filed a public prosecution with this Court. This Court accepted the case and formed a collegial panel in accordance with the law, convened pretrial conferences, and tried this case with hearing in open court. The People's Procuratorate of Tianhe District, Guangzhou, Guangdong assigned procurators Huang Haifeng, Liu Qiwei, He Qian to appear in court in support of the indictment. Defendant Wang Aizhong and his defense counsel He Wenxiu were in court to participate in the proceedings. Hearings in this case have now concluded.

The public prosecution agency charged: Since January 2019, defendant Wang Aizhong did, in the eastern part of the Tianhe District in the city where he lives, repeatedly use "wall-climbing" methods on the Internet to repost false reports from foreign media, and added his own statements with fake information, and distributed them on his WeChat official account and on foreign social software, thereby causing a disturbance and misleading the public. On May 28, 2021, defendant Wang Aizhong was apprehended by investigators at his residence and brought to justice.

In order to prove the aforementioned facts, the public prosecution agency produced or read in court the Decision to Establish a Case, search and seizure materials, remote network inspection work records, screenshots of social software content, the testimony of witness Wang Mounan and others, the statement of the defendant, and other evidence. The public prosecution agency believed that defendant Wang Aizhong fabricated and disseminated fake information, creating a disturbance and causing severe chaos in public venue order, and he should bear criminal liability for the offense of disturbing the peace. It requested this Court pass sentence in accordance with the law.

Defendant Wang Aizhong's defense counsel proffered: Wang Aizhong's statements on overseas online platforms did not exceed the boundaries stipulated by law. The public prosecution agency failed to prove that Wang Aizhong's actions caused severe chaos in the cyberspace, and Wang Aizhong did not constitute the crime of disturbing the peace.

It was ascertained at trial: Since January 2019, defendant Wang Aizhong did on several occasions post and repost a large volume of fake information on domestic and foreign Internet platforms, creating an offensive social influence and severe chaos in public order.

The aforementioned facts have been confirmed by the following evidence presented and examined in court during the trial, and are determined by this Court:

1. The Police Report Acceptance Registration Form, the Decision to Establish a Case, and the apprehension process confirmed the circumstances of the case establishment and apprehension of defendant Wang Aizhong.

The search and seizure materials confirmed: When the police apprehended defendant Wang Aizhong, they seized an Apple mobile phone from him; in the search of Wang Aizhong's residence [OBSCURED IN ORIGINAL], they found an ASUS laptop, a Microsoft tablet, and an Apple mobile phone. All of the above items were seized.

3. Screenshots of defendant Wang Aizhong’s Twitter and WeChat account interfaces, and WeChat information provided by Tencent confirmed: Wang Aizhong’s Twitter account is “王爱忠@wangaizhong”; the name of the WeChat account is "A Wang Aizhong", the nickname is "Wang Aizhong D", and the username is WeChat is "wangaizhong2023".

Defendant Wang Aizhong signed and affirmed this.

4. The remote network inspection work records confirmed: The investigative agency remotely fixed and extracted the content of the tweets posted by the Twitter account "王爱忠@wangaizhong."

5. The screenshots of Twitter and Wechat Moments confirmed that defendant Wang Aizhong posted a large amount of fake information on social software, causing severe chaos in public order.

Defendant Wang Aizhong carried out signing and affirming some of the screenshots.

6. Defendant Wang Aizhong's household registration information and criminal record investigation materials confirmed the identity of defendant Wang Aizhong. On February 23, 2013, he was sentenced to administrative detention for participating in an illegal assembly; on May 28, 2014, he was criminally detained for publishing rumors on the Internet, and was later released on bail.

7. The testimonies of witnesses Wang Doenan, Chen Doeyun, and Wan Doeming confirmed: Wang Aizhong's WeChat account is "wangaizhong2023" and his Twitter account is "王aizhong@wangaizhong."

Witness Chen Doeyun carried out signing and affirming Wang Aizhong's WeChat account, Twitter account, and screenshots of his WeChat Moments interface. Witness Wan Doeming identified Wang Aizhong and carried out signing and affirming the relevant screenshots of his Moments content.

8. The statement of defendant Wang Aizhong: I posted about some high profile social incidents on WeChat Moments and Twitter, which came from self-media such as Weibo. The WeChat account I use is qingshan1995, and I have also used wangaizhong2023 and wangaizhong, and the associated mobile phone number is [INTENTIONALLY OMITTED]. My Twitter account is @wangaizhong, and my nickname is "王爱中." I have posted relevant information on WeChat Moments and Twitter, and the account is only used by myself, and others do not know my account and password. I am posting relevant information using my mobile phone.

Regarding the opinion proffered by defendant Wang Aizhong and the defense counsel that he is not guilty, based on an investigation, Wang Aizhong used the aforementioned WeChat and Twitter accounts to disseminate fake information relating to State policies and major domestic events on the Internet, creating a disturbance and misleading the public, and the relevant information was widely read And reposted, with dangerous consequences that created severe chaos in public order.

The opinion proffered by Wang Aizhong and his defense counsel that he is not guilty is not established and is not adopted by this Court.

This Court finds that defendant Wang Aizhong intentionally fabricated fake information, or knowingly disseminated fake information on the Internet, causing disturbances, and creating severe chaos in public order. His actions constitute the crime of disturbing the peace. With respect to the public prosecution agency's charge, the facts were clear and the evidence was reliable and copious, and the charged offense is established and is adopted by this Court. After Wang Aizhong was brought to justice he made truthful statements regarding the primary criminal facts, and may be given a lighter punishment in accordance with the law. In accordance with Articles 293(1)(iv), 67(3), and 64 of the "Criminal Law of the People's Republic of China" and Article 5 of the "Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Law in the Handling of Defamation Through Information Networks and Other Criminal Cases," the judgment is as follows:

1. Defendant Wang Aizhong committed the crime of disturbing the peace, and is sentenced to a fixed term imprisonment of three years (The prison term is to be calculated starting on the day the judgment is executed, and each day in custody prior to the execution of the judgment shall count as one day of the prison term, that is, from May 28, 2021 to May 27, 2024).

2. The seized mobile phones used as tools in the crime shall be confiscated (the aforementioned items are currently seized by the Tianhe District Branch of the Public Security Bureau of Guangzhou, and the bureau will carry this out).

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

Chief Adjudicator Liang Xiaowen
Adjudicator Zhang Kai
Adjudicator Zhu Lu

May 18, 2023

Clerks Chen Min and Mai Yingjie

 

广东省广州市天河区人民法院

刑事判决书

(2022)粤0106刑初377号

公诉机关广东省广州市天河区人民检察院。

被告人王爱忠,男,1976年12月13日出生,汉族,大学文化程度,户籍地广州市天。因本案于2021年5月28日被ustory,次日被刑事拘留,同年7月6日被逮捕。现羁押于广州市天河区看守所。 

辩护人葛文秀,广东律成定邦律师事务所律师。

辩护人何伟民,广东经国律师事务所律师。

广东省广州市天河区人民检察院以穗天检刑诉[2022]Z10号起诉书指控被告人王爱忠犯寻衅滋事罪,于2022年1月27日向本院提起公诉。本院受理后依法组成合议庭,召开了庭前会议,公开开庭审理了本案。广东省广州市天河区人民检察院指派检察员黄海锋、刘其维、何倩出庭支持公诉。被告人王爱忠及辩护人葛文秀到庭参加诉讼。现已审理终结。

公诉机关指控,被告人王爱忠自2019年1月起,在其居住的本市天河区东,多次通过网络“翻墙”手段,将境外媒体的不实报道转载并配上其添加虚假信息的言论,发表在其微信公众号、境外社交软件上,起哄闹事,混淆视听。2021年5月28日,被告人王爱忠在其住所附近被侦查人员抓获归案。

为证明上述事实,公诉机关当庭出示或宣读了立案决定书、搜查及扣押材料、网络远程勘验工作记录、社交软件内容截图、证人王某楠等人的证言,被告人的供述等证据。公诉机关认为,被告人王爱忠编造、散布虚假信息,起哄闹事,造成公共场所秩序严重混乱,应以寻衅滋事罪追究其刑事责任。提请本院依法判处。

被告人王爱忠及辩护人提出:王爱忠在境外网络平台发表言论没有超过法律规定的边界,公诉机关未能证实王爱忠的行为造成网络空间严重混乱,王爱忠不构成寻衅滋事罪。

经审理查明:自2019年1月起,被告人王爱忠多次在境内外网络平台上发布、转载大量虚假信息,造成恶劣社会影响和公共秩序严重混乱。

上述事实,有经庭审举证、质证的下列证据证实,本院予以认定:

1.受理报警登记表、立案决定书、抓获经过证实本案立案及抓获被告人王爱忠的情况。

2.搜查及扣押材料证实:民警抓获被告人王爱忠时从其身上查获1部苹果手机;在王爱忠住处[OBSCURED IN ORIGINAL]房搜查发现1部华硕笔记本电脑、1台微软平板电脑和1部苹果手机。上述物品均予以扣押。

3.被告人王爱忠的推特及微信账号界面截图、腾讯公司提供的微信资料证实:王爱忠的推特账号为“王爱忠@wangaizhong";微信账号名称为“A王爱忠”,昵称“王爱忠D”,微信号"wangaizhong2023".

被告人王爱忠已签认。

4.网络远程勘验工作记录证实:侦查机关对推特账号“王爱忠@wangaizhong”发文内容进行远程固定和提取。

5.推特及微信朋友圈截图证实:被告人王爱忠在社交软件发布大量虚假信息,造成公共秩序严重混乱。

被告人王爱忠对其中部分截图进行签认。

6.被告人王爱忠的户籍资料及前科协查材料证实被告人王爱忠的身份情况。其于2013年2月23日因参与非法集会被处以行政拘留;2014年5月28日在网络发布谣言信息被刑事拘留,后取保候审。

7.证人王某楠、陈某云、万某明的证言证实:王爱忠的微信号是“wangaizhong2023”,推特账号是“王爱忠@wangaizhong”。

证人陈某云对王爱忠的微信，推特账号及微信朋友圈界面截图进行签认;证人万某明辨认出王爱忠,并对相关朋友圈内容截图进行签认。

8.被告人王爱忠的供述:我在微信朋友圈、推特发了一些社会热点事件,来自微博等自媒体上自称是当事人或家属的“爆料”。我使用的微信账号是qingshan1995,还用过wangaizhong2023、wangaizhong,关联的手机号码为[INTENTIONALLY OMITTED]。我的推特账号是@wangaizhong,昵称是“王爱忠”。我曾在微信朋友圈及推特发表过相关的信息,账号只有我自己在使用,其他人不知道我的账号和密码。我是使用手机发布相关信息。

关于被告人王爱忠、辩护人所提无罪意见,经查,王爱忠使用上述微信及推特账号在信息网络上散布涉及国家政策、国内重大事件的虚假信息,起哄闹事,混淆视听,相关信息被大量阅读和转发,已造成公共秩序严重混乱的危害后果。王爱忠及辩护人所提无罪意见不成立,本院不予采纳。

本院认为,被告人王爱忠故意编造虚假信息,或者明知是虚假信息而在信息网络上散布,起哄闹事,造成公共秩序严重混乱,其行为已构成寻衅滋事罪。公诉机关指控的事实清楚、证据确实、充分,指控的罪名成立,本院予以采纳。王爱忠归案后如实供述主要犯罪事实,可依法从轻处罚。依照《中华人民共和国刑法》第二百九十三条第一款第(四)项、第六十七条第三款、第六十四条以及《最高人民法院、最高人民检察院关于办理利用信息网络实施诽谤等刑事案件适用法律若干问题的解释》第五条的规定,判决如下:

一、被告人王爱忠犯寻衅滋事罪,判处有期徒刑三年(刑期从判决执行之日起计算,判决执行以前先行羁押的,羁押一日折抵刑期一日,即从2021年5月28日起至2024年5月27日止)。

二、扣押的作案工具手机二部予以没收(上述物品现扣押干广州市公安局天河区分局,由该局执行)。

如不服本判决,可在接到判决书的第二日起十日内,通过本院或者直接向广东省广州市中级人民法院提出上诉。书面上诉的,应当提交上诉状正本一份,副本二份.

审判长 梁晓文
审判员 张凯
审判员 朱璐

二〇二三年五月十八日

书记员 陈敏 麦英杰

Censorship on the 33rd Anniversary of June 4, 1989

After 33 years PRC websites continue to censor information about what happened in Beijing on June 4, 1989. Let's start with some obvious examples – censorship of the date. In English Baidu web search returns 2 results, in Chinese 6 results, all from PRC state-sponsored media.

Baidu's main social media product - "PostBar" (贴吧) has forums dedicated to "1988" and "1990," but searching for "1989" just yields a censorship notice "In accordance with relevant laws, regulations, and policies, relevant results have not been displayed."

Baidu's Q&A product (知道) finds tens of thousands of results for "Tiananmen 1988" and "Tiananmen 1990," but zero results for "Tiananmen 1989."

Tencent-owned Sogou web search also censors information relating to what happened in Beijing in June, 1989. A search for "Tiananmen 1989" returns no results, but the same search for "Tiananmen 1988" and "Tiananmen 1990" returns thousands of results.

The same thing happens with Sogou's image search - Sogou has no trouble finding images for "Tiananmen 1988" and "Tiananmen 1990," but is unable to locate a single image for "Tiananmen 1989."

And again, the same thing happens with Sogou's WeChat search engine - plenty of results for "Tiananmen 1988" and "Tiananmen 1990," but a search for "Tiananmen 1989" yields no results.

The same kind of censorship occurs on PRC social media sites. For example, these screenshots show that Sina Weibo has no problem finding results for "32nd Anniversary" and "34th Anniversary," but finds none for "33rd Anniversary."

Now for a look at PRC censorship of the iconic "Tank Man" images. This screenshot shows a Baidu search for "Tank Man" in English returns no results.

While a search for "Tiananmen 1989 Block Tanks" in Chinese returns no results, Baidu says its has found 22,070 "relevant images"! Not surprisingly, however, clicking that Baidu Image link lands users on a page telling them that, in fact, Baidu cannot find any relevant images.

Other PRC-based image search engines, such those of Qihoo and Tencent-owned Sogou, are unable to find any image results for searches for "Block Tanks."

Even terms with no obvious connection to what occurred in Beijing in June 1989-like "Tiananmen Mothers"-are censored. In addition to a screenshot showing Baidu finds no results for that query, I've included a screenshot of a Yahoo SERP for the same query to show what Baidu is censoring.

The Wikis operated by PRC Internet companies take different approaches to censoring the history of what happened in Beijing in June 1989. Today, the "This Day In History" sections show:

• Baidu: Khamenei elected supreme leader
• Qihoo: Nothing for 1989
• Sogou: Nothing for 1989

The top search results for "1988 year" and "1990 year" on Tencent-owned Sogou are Sogou's own Wiki articles about those years. The top result for "1989 year" is an article on Taylor Swift's album by that name. It appears Sogou simply has no article about the year 1989.

Sogou does have a Wiki article about "Tiananmen Square," but according to their article, nothing worth mentioning happened in Tiananmen Square between 1976 and 1997.

Qihoo does have a Wiki article about 1989, but unlike its Wiki articles about 1988 and 1990, Qihoo's article on 1989 has no section on "Major Events." So there's nothing to indicate anything noteworthy happened in/around Tiananmen Square (or anywhere else) that year.

Baidu has articles on 1989 and Tiananmen Square. But according to Baidu nothing happened in Tiananmen Square in 1989, and the only noteworthy events on June 4 were:

• Walesa elected prime minister of Poland
• Khamenei elected supreme leader of Iran

Here's another stark example of how PRC Internet companies treat modern Chinese history - this screenshot shows a search for "64 Remembrance" (六四 纪念) on Baidu returns ZERO results. Someone in the PRC would be better off using a Korean search engine like Naver. . .

Finally, it should be noted that people in the PRC haven't forgotten, and still get punished for peaceful attempts to commemorate, what happened in Beijing in June 1989. For example,  Jie Ruixue was jailed for wearing a t-shirt  in Tiananmen Square in 2019. According to the court judgment, the t-shirt Jie was jailed for wearing in Tiananmen Square in 2019 read "Freedom of Speech, Vindicate June Fourth, Oppose Repeating the Tragedy." The court judgment claimed this "caused severe chaos," but cited no evidence to support that claim.

There's an entire section of my casebook "State Prosecutions of Speech in the PRC" devoted to PRC government documents showing people getting punished for commemorating and discussing what happened in Beijing on June 4, 1989.

You can download the casebook free at my website: https://feichangdao.com/publications/.

Covid-19 Series: Censored Essay on Covid Strategies for China

Between April 9 and 11, 2022, an article titled "Epidemic Prevention Strategies to Minimize Loss of Life"  (生命损失最小化的防疫策略) by Liang Jianzhang (梁建章) was deleted from the following PRC-based news outlets: Caixin, Phoenix, and Sina:

 Caixin: https://web.archive.org/web/20220408071721/https://opinion.caixin.com/2022-04-08/101867209.html

 Phoenix: https://web.archive.org/web/20220409165217/https://news.ifeng.com/c/8F45EVlqK1j

Sina: https://k.sina.com.cn/article_1946109133_73ff44cd01900xqcp.html

Liang originally posted the article on his Tencent Weixin account on April 8, 2022 at https://mp.weixin.qq.com/s/LdaMgSMrY2YcqZ5w3jaIhA. As of April 11, however, that essay had been replaced with a notice reading: "Upon Receipt of Relevant Complaints, This Content Violates the 'Administrative Provisions on Internet User Public Account Information Services'" (接相关投诉，此内容违反《互联网用户公众账号信息服务管理规定》). The original post is archived at https://web.archive.org/web/20220409095426/https://mp.weixin.qq.com/s/LdaMgSMrY2YcqZ5w3jaIhA 

According to Wikipedia, Liang earned his bachelor's and a master's degree in computer science from the Georgia Institute of Technology. In 2011, he earned a PhD in Economics from Stanford University. He is a co-author of the book "Too Many People in China?," which analyzed the impact of the one-child policy and the adverse effects of demographic changes on China's economy, and a 2018 book, "The Demographics of Innovation."

Below is a machine translation of Liang's censored essay.

Epidemic Prevention Strategies to Minimize Loss of Life

2022-04-08 10:36

It has been more than two years in the fight against the epidemic. Under the guidance of the concept of life comes first, the government resolutely implemented policies such as the lockdown of Wuhan in the early stages of the epidemic, which reduced the number of infections and deaths to a minimum in a short period of time, and achieved world-renowned epidemic prevention achievements. But two years later, the virus has evolved from Alpha to Omicron. Compared with the previous strains, on the one hand, the virus has reduced toxicity and the mortality rate has dropped significantly; on the other hand, the transmissibility has been greatly enhanced, which makes our "anti-infection strategy" more expensive. This essay analyzes how to balance the benefits and costs through the impact of different epidemic prevention strategies on life expectancy, and then chooses the strategy with the least loss of life.

Two Anti-Epidemic Strategies

Infection prevention strategy: Quarantine policies are the mainstay, which includes a large number of nucleic acid tests and epidemiological investigations, as well as the closure and control of localities or even entire municipalities. The purpose is to block the infection chain and eliminate the infection to the greatest extent possible.

Death prevention strategy: Focus medical resources on treating seriously ill patients. For high mortality groups such as the elderly, vaccination is strengthened, and effective specific drugs are introduced to minimize the number of deaths.

Model diagram of epidemic prevention strategy:



The above diagram shows the logic of the model. For strains with high mortality and strong transmissibility, the anti-infection strategy is better, because the cost of infection prevention is low and the benefits are high. Conversely. For strains with low mortality and weak infectivity, the strategy of preventing death is better.

From the above model, it can be seen that the key to the selection of the best strategy is to quantitatively analyze and compare the extra cost and life loss of the "anti-infection strategy" relative to the "anti-death strategy."

1) Life loss due to infection prevention strategy = loss of life expectancy due to economic loss of isolation and containment.

This loss rises with the spread of the virus.

2) Life loss from death prevention strategies = loss of life expectancy due to death from infection.

This gain decreases as the virulence of the virus decreases.

The relationship between GDP per capita and average life expectancy

We can analyze the relationship between average life expectancy and per capita GDP by studying the historical data of various countries. It is an obvious fact: the higher the per capita income of a country, the longer its life expectancy. Because rich countries are more able and willing to invest in health care, infrastructure and environmental governance, thereby reducing mortality and increasing life expectancy.

Figure 1 Relationship between per capita GDP (USD) and average life expectancy in some countries in 2019

Source: World Bank

Note: The abscissa has been logged, and the actual per capita GDP value is marked after the name of some countries

It can be seen that the per capita income is halved, and the average life expectancy is reduced by 1-3 years; China's per capita GDP in 2010 was about 45% of that in 2020, and the life expectancy was reduced by 2.5 years.

Figure 2 The relationship between per capita GDP and average life expectancy in China's provinces

 

Source: World Bank, National Bureau of Statistics

Note: The abscissa has been processed by log, and the graph also shows the historical data of China and the corresponding per capita GDP

From the above figure, we can also see the relationship between per capita GDP and average life expectancy in various regions of China. The richer the province, the longer the life expectancy. In modern peacetime, there have indeed been periods (if infrequently) of sharp declines in per capita income, such as when the Soviet Union collapsed, during 1991-1993, per capita income fell by 20% and life expectancy fell by four years. So in the face of a 50% change in income, even a very conservative estimate will lead to a one-year reduction in per capita income. To put it into perspective, for every 1% decrease in per capita GDP, life expectancy will decrease by about 5 days.

Statistical Life Value

We can also test this hypothesis through the theory of Value of Statistical life in economics. In the field of economics, "statistical life value" is a relatively mature concept, which refers to how much a society is willing to spend to reduce mortality. Some people may be disgusted by this concept, thinking that there is no need to calculate the value of life, because life is supposed to be priceless. From an ethical standpoint alone, the above point of view is certainly not wrong. However, in the actual operation process, regardless of work life, business operation or social management, a balance must be pursued between reducing the risk of death and input cost. As for how to find this balance, it is necessary to calculate the "statistical life value" scientifically and rationally.

For example, companies and governments also need to balance risk and cost when providing various means of transportation and transportation infrastructure. For example, when the government designs a road, if it builds more lanes, or sets up special non-motorized lanes, or wider sidewalks, etc., it is possible to reduce the fatality rate of traffic accidents. But obviously not all roads have such a setup. Does this mean that the designer disregarded the safety of life? it's not true. As a designer, if a seemingly absolutely safe road costs 10 billion to build regardless of the cost, it is very likely that this road cannot be built at all, leaving ordinary people with nowhere to go. So for such a construction project, how much is it worth to spend to reduce the mortality rate? Here, there is also an implicit calculation of the balance of life value. In fact, economists have already calculated the value of life in an economic sense based on data from various countries. Chinese scholars have also done some research on this [1] [2], and concluded that the value of China's vital statistics is generally in the range of 1 million to 7.2 million, and we will temporarily take the value of 5 million.

The Cost of Infection Prevention Strategies

Assuming that the economic loss of 1% of GDP due to large-scale isolation and control, then it is one trillion. According to the calculation of "statistical life value" of 5 million, it may increase the risk of accidental death by 200,000 (persons). If the average life expectancy is reduced by 20,000 days per accidental death, 200,000 people will be 4 billion days, and overall, the average life expectancy in China will be reduced by about 3 days. The calculation of this loss of life expectancy does not take into account the impact of secondary deaths on life expectancy caused by the lack of timely treatment of other diseases due to the occupation of a large number of medical resources by tasks such as nucleic acid testing.

Therefore, combining the previous two methods of calculating the cost of life, a loss of 1% of GDP will reduce the average life expectancy by 3-5 days, which is the cost of isolation and containment required by the infection prevention strategy.

The next question is, how much GDP will Omicron cause? This is of course difficult to calculate, but we have a preliminary analysis, that is, the stronger the transmissibility, the stricter the closure and control measures will inevitably be, and the greater the loss of GDP will be. The strength of transmissibility can be expressed by R0 (basic infection number), and the value of R0 is simply understood as "one person gets sick, how many other people he can infect". The initial Alpha is R0=2-4 (the R0 of influenza is also around 2), the R0 of Delta is about 4, the transmissibility of Omicron is very strong, and the R0 is about 10, which is much stronger than any previous strains, so yes The GDP cost of its anti-infection strategy is also much higher.

In the past two years, we have adopted an anti-infection policy, which has successfully blocked Alpha and Delta, and only paid a relatively small loss of GDP as the price. However, the transmissibility of Omicron is several times that of Alpha and Delta, and a large-scale isolation is often required, so the economic loss of preventing and controlling Omicron may be far greater than 1% of GDP. For example, not long ago, Shenzhen was only closed and controlled for a week, causing a loss of 60-70 billion. According to a study by Professor Song Zheng of the Chinese University of Hong Kong [3], the closure of first-tier cities like Shanghai for one month will reduce the real GDP of the whole of China by 4%. In fact, with the increasing spread of the virus, precise epidemic prevention has become almost impossible, and the frequency of city closures has to be greatly increased. According to statistics, in the first quarter alone, Shanghai, Changchun, Harbin, Xi'an, Shenzhen, etc. have implemented or are undergoing city-wide lockdowns, and more than a dozen first- and second-tier cities have had large-scale partial lockdowns. The closure and control of these cities alone will cause a loss of more than 4% of China's GDP in the first quarter. Moreover, the overall economy is already under great downward pressure. If a large-scale lockdown is imposed for a long time, it will cause negative effects such as rising unemployment and an increase in the number of people returning to poverty. Not to mention the secondary loss of life caused by the occupation of medical resources.

After calculating the cost of the anti-infection strategy, let's calculate the relative benefit of the anti-infection strategy, that is, how many deaths and life expectancy are avoided, and then we need to estimate the fatality rate of different variants. According to a study conducted by British scholars on confirmed cases of different variants in the second half of 2021, the case fatality rate of Alpha is about 1.1% [4]; according to a study of patients infected with Omicron and Delta variant viruses in Ontario, Canada. A retrospective whole population matched cohort study [5], the Delta case fatality rate was 0.3%; according to the statistics of the 2018 influenza season published by the US CDC [6], the case fatality rate of influenza is about 0.1%. The main preliminary research and data show that Omicron is different from previous strains and generally does not invade the lungs. Therefore, the fatality rate of Omicron is much lower than that of previous strains, and may even be lower than that of influenza. We will analyze Omicron in detail later. of the fatality rate.

Influenza Prevention Strategies

We use this model to calculate epidemic prevention strategies against influenza. Since the fatality rate of influenza is about 0.1%, if it is very pessimistically estimated that 50% of the population will be infected (the actual infection rate will be much lower than 50%), it will cause a mortality rate of 5/10,000. Assuming that the average life expectancy of patients who die is 70 years (assuming that the average life expectancy of patients is 80 years), then each patient who dies will be shortened by an average of 10 years of life. Then in terms of mortality rate of 5 in 10,000, life expectancy is reduced by almost 1.8 days (10 years x 5 in 10,000). Therefore, on average, a large-scale influenza outbreak has an impact on the entire human society, equivalent to a reduction in life expectancy of about 1.8 days. For the infection prevention strategy, the gain is only 1.8 days of life lost. However, as we calculated earlier, if we adopt a large-scale infection prevention strategy, only the loss of 1% of GDP will reduce the average life expectancy by 3-5 days. Because of this, we cannot use large-scale isolation and sealing to prevent infection. control strategies to prevent influenza.

The Best Strategy for Dealing with Initial Strains of Covid-19

We can calculate the earliest mutant virus Alpha in the early stage of the epidemic. If Alpha's case fatality rate is 1%, which is about 20 times that of influenza, then the loss of life expectancy is not 1.8 days but 40 days. Then the relative benefit of the infection prevention strategy of large-scale isolation is 40 days. Far greater than the 3-5 day life cost of 1% of GDP. Therefore, for the Alpha virus, the strategy of preventing infection is better than the strategy of preventing death, and it was the right choice to decisively shut down Wuhan at the beginning.

Best Strategy Against Omicron

Let's analyze how to deal with Omicron. First of all, logically, if the fatality rate of Omicron is higher than that of Alpha, and the transmissibility is weaker than that of Alpha, then an infection prevention strategy should be adopted. Adopt a death-prevention strategy. In detail, if a large area is isolated, the resulting loss of life expectancy is: the percentage loss of GDP * (3-5) days (for simplicity, it will be calculated as 4 days later); infection prevention can avoid death and thus obtain The benefit of life expectancy is: (case fatality rate) S*10 years*50% (assuming that 50% of the whole population will eventually be infected), that is, S*3652*50% days.

Compare the life loss caused by the two strategies, that is, when the percentage loss of GDP * 4 days < S * 3652 days * 50%, the anti-infection strategy should be adopted, otherwise the anti-death strategy should be adopted.

From this, it is possible to calculate the threshold value of the fatality rate S of the death prevention strategy under the assumption of different GDP losses: when the GDP loss is 0.5%, the threshold value of S = 0.12%, that is, when the case fatality rate is less than 0.12%, the death prevention strategy should be adopted. Strategy; when GDP loses 1%, S's threshold = 0.22%; when GDP loses 2%, S's threshold = 0.44%, when GDP loses 4%, S's threshold = 0.88%. According to the current level of closure and control required for Omicron, the loss to GDP is at least 4%. It can be seen that even if the fatality rate of Omicron is slightly higher than that of influenza, because of the strong transmissibility of Omicron, the cost of preventing infection may be much higher than that of influenza, and a strategy of preventing death should be adopted. We can be sure that Omicron is much more transmissible than the flu. So what is the fatality rate of Omicron?

Omicron's Case Fatality Rate

According to research data released by Ontario, Canada, the case fatality rate of Omicron is about 0.03%. However, since European and American countries no longer require nucleic acid tests and no longer accurately count the number of infected people, the calculation of the fatality rate is not accurate. However, Asian countries are still counting the number of infected people more accurately, so we can look at the case fatality rate statistics of some Asian countries that are closer to ours.

According to reports, based on the cumulative number of deaths and positive cases from January to February 21, 2022 by the Japanese Ministry of Health and Welfare, the confirmed case fatality rate of Omicron is estimated to be 0.13% [7]. According to the Korea Centers for Disease Control and Prevention (KDCA), since December last year, the case fatality rate of the Korean Omicron variant is about 0.18% [8]. Through the data of the past two weeks, we found that the recent confirmed case fatality rate has been reduced to 0.1% [9]. According to the statistics of the case fatality rate in the past 28 days by the Ministry of Health of Singapore, this value is only 0.05% [10]. Through the data of the past two weeks, we found that the confirmed case fatality rate in Singapore in the past two weeks was only 0.03%. Similarly, according to the analysis of confirmed and fatal cases in Vietnam in the past 28 days, the case fatality rate is about 0.03% [11].

Look at Hong Kong, China. According to the epidemic data released by the Hong Kong government [12], there were 7,732 deaths in the fifth wave of the epidemic, and the cumulative number of confirmed and reported cases was 1,150,607 (2021.12.31-2022.4.1), and the calculated case fatality rate was 0.67%. However, since Hong Kong has never had a complete national nucleic acid, it is likely that there are many confirmed cases that are not included in the statistics. The Faculty of Medicine of the University of Hong Kong has calculated through a mathematical model that the actual number of infections far exceeds the official reports or statistics. This estimate has reached 4 million [13]. According to this estimate, the actual fatality rate is below 0.2%, but it is still relatively high.

Case fatality rate in some Asian countries, vaccination status of elderly people and proportion of deaths, proportion of population over 80 years old



Remarks: The vaccination rate and the proportion of deaths in the elderly are from the government websites or public information of each country/region, and the population proportion is from the United Nations database

Explanation of confirmed case fatality rate: South Korea: data from the national statistical database, data time is 2022.3.17-3.31; Singapore: data source Singapore Ministry of Health, data calculation time is 2022.3.17-3.31; Japan: data source Japan Daily News, calculation Time January-February 2022; Hong Kong, China: Data from Hong Kong Department of Health and University of Hong Kong, calculated from December 2021 to April 4, 2022; Vietnam: Data from Johns Hopkins University, calculated from March 2022 .8-4.6; Mainland China data is from the National Health Commission, and the calculation time is from January to March 2022.

It can be seen that the general mortality rate of Omicron is close to or even much lower than that of influenza, with the exception of Hong Kong, China.

Why is the Fatality Rate in Hong Kong so High?

To explain the high death rate in Hong Kong, we need to look at the age distribution of those who died. According to the figures in the third column of the above table, it is not difficult to see that the elderly are the main group of deaths. In Hong Kong, the vaccination rate of the elderly over the age of 80 is only 43%, while the vaccination rate of the elderly in other countries exceeds 90%. According to the data, both domestic vaccines and MRNA vaccines are highly effective in preventing severe illness and death. Therefore, it is not difficult to conclude that the vaccination rate of the elderly in Hong Kong is much lower than that of Singapore, which is the main reason for the high mortality rate in Hong Kong. If Hong Kong, China, can increase the vaccination rate of the elderly to the level of other countries, the case fatality rate can also be reduced to about 0.1%, which is similar to the level of influenza.

The overall vaccination rate in China is relatively high, and the full-course vaccination rate for people over 60 years old has reached 80%. China's overall proportion of 80-year-olds in the total population is only half that of Hong Kong, but the vaccination rate of the elderly over 80 is still relatively low, not reaching the level of Singapore and Japan. The case fatality rate of Omicron in China that we recently observed is already very low. In the first quarter of this year, the case fatality rate of the new coronavirus in mainland China was only 0.004%, which was an order of magnitude lower than that of Singapore. The case fatality rate in Jilin, where the epidemic was more severe, was 0.007% in the same period. Shanghai is 0 [14]. If we continue to increase the vaccination rate of the elderly, we can maintain the fatality rate of Omicron at the level of Vietnam and Singapore, which is 5/10,000, then the reduction of the cost of life expectancy from the death prevention strategy will be less than 1 day, and now it is estimated that the prevention of infection The loss of GDP caused by the strategy will exceed 4%, and the reduction in life expectancy is 16 days, which is much higher than the impact of the death prevention strategy. If the case fatality rate is maintained at 5 per 10,000 (50% infection rate), the number of deaths per year is more than 300,000. More than 3 million people die of cancer in China every year, and the five-year survival rate of cancer in China is 20% lower than that in Japan and South Korea. If we use 1% of GDP to improve the overall medical level, then cancer alone may save a lot. 600,000 people have room for improvement.

Let's review the epidemic prevention model diagram again:

Conclusion

For the current variant of the new coronavirus with high transmission rates but relatively low infection mortality rates, if a mortality prevention strategy is to be adopted, the focus should be on increasing the vaccination rate of high mortality risk groups such as the elderly over 80 years old. The domestic vaccine is also effective in preventing death. Therefore, we must increase the vaccination rate of the elderly as soon as possible. If the mortality rate continues to remain at a very low level, we should actively switch to the death prevention strategy. The anti-death strategy is not a "flattening" policy that is completely ignored, but to allow people with cold symptoms to self-isolate and test, freeing up valuable medical resources for the rescue and observation of critically ill and elderly people, so as to reduce the mortality rate. drop to lowest. Adopting different anti-epidemic strategies in the future does not mean that China's previous prevention and control was in vain. On the contrary, according to our model, the previous anti-infection and containment strategies were very correct, and they won more than two years of precious time. In the stage when the vaccination rate is still relatively low and the virus toxicity is relatively high, a large number of deaths can be avoided at a relatively small cost.

Summary

This essay established a model to analyze and compare the impact of different epidemic prevention strategies against different viruses on life expectancy. It concludes that the best strategy for epidemics such as Alpha and Delta is the anti-infection strategy. Omicron, however, is completely different from those previous strains. The mortality rate of Omicron is much lower and the transmissibility is much stronger, resulting in a substantial increase in the cost of the anti-infection strategy. According to the Omicron case fatality rate statistics in most countries and regions, if the Omicron case fatality rate is close to that of influenza, the life cost of the death prevention strategy is lower. The high mortality rate in Hong Kong is likely due to the low vaccine penetration rate among the elderly. Whether the strategy of the future is to prevent infection or prevent death depends on when we can achieve universal vaccination rates for the elderly.

We believe that as long as we adhere to the concept of people first and life comes first, take into account the life and work order of the people, adopt optimal epidemic prevention strategies scientifically and rationally, and efficiently allocate medical resources and social resources to deal with various diseases including Omicron , the overall loss of life can be minimized.

[1]曾贤刚、蒋妍,2010：空气污染健康损失中统计生命价值评估研究，中国环境科学

[2] ZhaoYang,PanLiu,XinXu: Estimation of social value of statistical life using willingness-to-pay method in Nanjing, China

[3] Jingjing Chen, Wei Chen, Ernest Liu, Jie Luo, and Zheng (Michael) Song:The Economic Cost of Lockdown in China: Evidence from City-to-City Truck Flows.

https://www.econ.cuhk.edu.hk/econ/images/Documents/Truck_Flow_and_COVID19_220315.pdf

[4]medRxiv:

https://www.medrxiv.org/content/10.1101/2022.03.05.22271084v1.full#F1

[5]The Journal of the American Medical Association:

https://jamanetwork.com/journals/jama/fullarticle/2789408#:~:text=There%20were%2053%20hospitalizations%20(0.6,%25)%20among%20matched%20Delta%20cases

[6]Centers for Disease Control and Prevention:

https://www.cdc.gov/flu/about/burden/2018-2019.html

[7]日本厚生劳动省：https://covid19.mhlw.go.jp/en/

[8]https://www.reuters.com/world/asia-pacific/skorea-says-omicron-covid-variant-75-less-likely-kill-than-delta-strain-2022-02-22/

[9]韩国统计厅：https://kosis.kr/covid_eng/covid_index.do

[10]新加坡卫生部：https://www.moh.gov.sg/covid-19/statistics

[11]约翰霍普金斯大学:

[12]衞生署衞生防護中心和醫院管理局：

https://www.coronavirus.gov.hk/pdf/5th_wave_statistics/5th_wave_statistics_20220401.pdf

[13]香港大学医学院孔繁毅等:

http://www.med.hku.hk/en/news/press//-/media/HKU-Med-Fac/News/slides/20220314-sims_wave_5_omicron_2022_03_14_final.ashx

[14]国家卫生健康委员会：http://www.nhc.gov.cn/

 

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