The following is a guest post by Allen Clayton-Greene of the US-Asia Law Institute at NYU Law School.
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“Truth” Online and Policing Online Consumer Reviews in China — the Case of Mr. Zhang
Research Scholar, US-Asia Law Institute, NYU*
Source/Copyright: She County TV WeChat Public Account 涉县广播电视台微信公众号微观涉县
Pictured: Mr. Zhang is interrogated by Public Security officials
Amidst the many reports on Chinese government attempts to control the internet and online speech, the crackdown on VPNs this summer was one issue that received widespread coverage in Western media outlets: see, e.g., here, here, here and here.
But the tools to control online content in China operate at multiple levels. Not content simply with technological barriers to content, the Chinese government is also reaching far into ordinary citizens lives to police the “truth” online.
In a translation at the end of this post is a media story that provoked some discussion in Chinese media, but garnered little attention outside of China: the sorry fate of Mr. Zhang, a man who was given administrative detention by police for an unspecified period of time. Under Chinese law, administrative detention is able to be issued by police alone, without the need for a sentence or indictment from a court or prosecutor.
Mr Zhang’s offense? He had posted comments criticizing the poor quality food and stingy portions at a hospital in Hebei.
Online opinion in China was sympathetic to Mr. Zhang — his case, and that of a Mr. Wang who also appears to have been administratively detained for similar reasons (see here) were cited in media commentary as examples of police overreach.
Unfortunately, while civil litigation around online reviews is not new to China (popular review websites like Dianping.com (大众点评) have already been sued to compel the deletion of negative reviews for a number of years now (see, e.g., here and here)), administrative detention for such reviews is a cause for serious concern.
In Mr. Zhang’s case, it appears that internet censorship was taken to a level that has surprised even China’s beleaguered online community. Ludicrously, as the article translated below explains, police assembled a team, conducted an investigation, tracked Mr. Zhang down online as the author of the critical reviews, and then detained him. All for what was essentially a one star Yelp review.
While the police may have been overly zealous in this case, their actions appear to be fully within the bounds of the law. China’s Public Security Administration Punishments Law (中华人民共和国治安管理处罚法) contains provisions that allow for the administrative detention of citizens for a broad swathe of public order offenses. A likely candidate in Mr. Zhang’s case could have been Article 23, which provides:
|Article 23 Where a person commits any of the following acts, he shall be given a warning or a pecuniary penalty. If the circumstances are serious, he (she) shall be detained for not less than 5 days but not more than 10 days and may be fined 500 yuan:||第二十三条 有下列行为之一的，处警告或者二百元以下罚款；情节较重的，处五日以上十日以下拘留，可以并处五百元以下罚款：|
|(1) He (she) disturbs the order of any organ, social organization, enterprise or public institution and makes it impossible for the work, production, business, medical services, teaching or scientific research to proceed normally, but has not caused any serious loss;||（一）扰乱机关、团体、企业、事业单位秩序，致使工作、生产、营业、医疗、教学、科研不能正常进行，尚未造成严重损失的；|
Unfortunately, Chinese law is only expanding such over-broad and vague forms of liability. Even in the media response to Mr. Zhang’s case translated below, the overriding imperative of public or social order “公共秩序” is held up as a legitimate counter to freedom of speech. In the newly introduced Article 185 of China’s Civil Code, ordinary citizens may now sue in the event that someone “infringe[s] upon the name, likeness, reputation, or honor of a hero, martyr, and so forth, harming the societal public interest” (translation courtesy of https://www.chinalawtranslate.com).
New offences for online conduct in China’s Criminal Law make matters worse, specifically targeting “spreading rumors on the internet” for punishments of between 3 and 7 years imprisonment.
At heart, the problems presented by Mr. Zhang’s case aren’t simply about the excessive powers the police have been granted and are encouraged to use in relation to the maintenance of social order. It is also about the use of such powers to police a particular version of “truth” online.
Even if Mr. Zhang had grossly distorted his impressions of the hospital’s food; the use of police, state power and administrative detention to censor that opinion is worrying. Perhaps, too, it should be a sobering reminder of the dangers that surround, for instance, the current U.S. President’s threats to use state power to “shut down” news networks whom he says peddle “fake news.” A blogpost from David Kaye, UN Special Rapporteur on Freedom of Expression, written in 2016, is scarily apt:
These are real problems that get elided in the hysteria over fake news. But there is another problem that progressives especially should consider, particularly in the face of a president-elect deeply hostile to the accountability function of the media.
What if, instead of asking social media sites to restrict fake news, the government were to propose taking on that role? You say, that’ll never happen. But you didn’t believe Donald Trump would be president, either.
Governments seeking to restrict expression and criticism typically adopt laws to criminalize the “spreading of false news.” Consider Alhagie Abdoulie Ceesay, who escaped from a prison “hospital” after being detained and later convicted in The Gambia on charges of “publishing false news with intent to alarm and fear the public.”* Or the Al Jazeera journalists held for over a year in Egypt on charges of broadcasting false news. Or the free speech activist detained in Bahrain on grounds of “inciting hatred against the regime” and spreading false news.
I could go on. Iran, China, Vietnam and a lengthy list of other countries harshly punish propaganda against the state.
The case of Mr. Zhang might easily be added to the lengthy list of the dangers of policing “truth” online that China offers.
*The views in this post are the author’s own and do not necessarily reflect the views of NYU School of Law or the US-Asia Law Institute. Any translation or other errors are the author’s own.
|网友差评医院餐厅被拘留 媒体:简直荒唐至极||Netizen detained for adverse criticism of hospital cafeteria, Media: Simply put, this is absurd in the extreme|
|2017年08月21日01:26 中国新闻网||August 21, 2017|
|近日，河北涉县城关派出所接到报警，有人在百度涉县贴吧、搜狐网、微信群等网络传播以“涉县新医院餐厅质差、价贵、量少，还是人民的医院吗？”为标题的帖子，对医院工作造成恶劣影响。接警后，该所立即组织民警展开调查，于8月16日查明，信息发布者叫张某，6月初在医院就诊期间，因觉得饭菜一般，于是就在网上发布了这篇帖子。报道称，通过多方调查取证，警方查实张某涉嫌虚构事实，扰乱公共秩序，目前被依法处以行政拘留处罚。||Recently, Hebei’s She County Chengguan police station received a police report, that a person had been posting online on Baidu’s She County bbs, Sohu, WeChat groups etc. with the heading “the new She County hospital’s cafeteria is sub-par, overpriced and stingy, can it really be that this is the people’s hospital?” and this had been causing a negative impact on the work of the hospital. After receiving the alert, this police station immediately organized for police to open an investigation, and on August 16, they discovered that the person who had posted the messages was named a Mr. Zhang X, and, at the beginning of June, when seeking medical treatment, he had issued the relevant posts online because he felt that the food was so-so. The report said, that having obtained evidence from various sources, the police had ascertained that Mr. Zhang X was suspected of fabricating facts, disturbing social order, and that at present he was being detained and administratively punished according to law.|
|法治社会中，没有任何绝对的权利，所有权利都须止步于他人权利与社会秩序。言论自由权也是如此，一方面，我们不能对他人进行侮辱、谩骂，侵犯他人私权利；另一方面，我们也不能造谣生事，引起社会恐慌，扰乱公共秩序。言论若是超出法律边界，则需要根据其危害性大小，承担民事、行政、刑事等不同程度的法律责任。||In a rule-of-law society, there are no such things as absolute rights, all rights must be limited by the rights of others and by social order. Free speech is also like this. On the one hand, we cannot humiliate or deride others, and thereby violate their personal rights and interests; on the other hand, we can also not start rumors and create trouble, arousing social panic, and disturbing social order. If someone’s speech oversteps the boundaries of the law, then according to the gravity of the harm, they need to be held legally responsible, be it to a civil, administrative, or criminal standard.|
|而当我们正当行使言论权时，就不应该受到任何法律追责。或许对于某个餐厅服务到底好不好，价格贵不贵，菜量少不少，每个人有着不同的评价标准，但作为消费者，我们只要并非恶意虚构事实，就有权利自由自在地表达自身主观感受，而不受任何法律追究，这不仅是消费者合法合理范围内的言论自由权，也是消费者在行使法定监督权，更是在满足其他消费者的知情权。||However in the ordinary exercise of our speech rights, we ought not to be subject to just any old legal responsibility. Perhaps whether or not the service at a restaurant is good or bad, or the price is too high or the quantity of the dishes is too small, different people will have different evaluations, but as consumers, so long as we do not maliciously fabricate facts, we have the right to freely as ourselves express our personal subjective reactions, and to not be subjected to any legal responsibility for doing so. This isn’t simply within the scope of a consumer’s lawful and reasonable right to free speech, it is also a consumer’s right in the exercise of their lawfully established right of supervision, and meets the needs of other consumers’ rights to know.|
|事实上，法律不仅不禁止差评，反而鼓励我们积极揭发商家的不端行为，对消费者的言论赋予了更大容忍的自由。《消费者权益保护法》规定，国家鼓励、支持一切组织和个人对损害消费者合法权益的行为进行社会监督。||In fact, the law does not only not prohibit adverse criticism, in fact so as to encourage us to positively exposes businesses’ improper conduct, it bestows greater tolerance for freedom of consumers’ speech. The Law on the Protection of the Rights and Interests of Consumers stipulates that the State encourages and supports all organizations and individuals to undertake social supervision with respect to actions that harm the lawful rights and interests of consumers.|
|消费者享有对商品和服务以及保护消费者权益工作进行监督的权利。消费者有权检举、控告侵害消费者权益的行为和国家机关及其工作人员在保护消费者权益工作中的违法失职行为，有权对保护消费者权益工作提出批评、建议。||Consumers enjoy rights of supervision over goods and services as well as the work of protecting consumers’ rights and interests. Consumers have the right to report violations of the law to authorities and to report acts that harm the rights and interests of consumers and unlawful acts or abdications of responsibility by State organs or their staff in the course of undertaking the work of protecting the rights and interests of consumers. They also have the right to put forward criticism and suggestions with respect to the work of protecting the rights and interests of consumers.|
|在各地司法实践中，已经发生过不少案例，商家因买家差评起诉买家，最终被判败诉。可见，对商家进行差评，一般连民事责任都够不上，更何况行政责任。然而，却有网友因为对医院餐厅进行了差评，被警方以“扰乱公共秩序”为由行政拘留处罚，这简直是匪夷所思。我们不禁要问，就餐群众怎么就不能对餐厅的服务质量进行差评了？医院餐厅的服务质量与一个地方的公共秩序究竟存在哪门子关系？医院餐厅怎么就成了摸不得的老虎屁股？||In the course of carrying out the administration of justice around the country, there have already occurred many cases, in which a business sues a customer who has given it adverse criticism, and in the end it is adjudged to have lost the lawsuit. Thus it is clear that adversely criticizing a business, ordinarily attracts no civil liability, let alone any administrative liability. Therefore for a netizen to be administratively detained for adversely criticizing a hospital cafeteria is just plain outrageous. Surely we must ask, how is it that the masses when dining cannot criticize the quality of the service? What possible relationship can there be between the quality of service in a hospital cafeteria and the public order of a region? How can a hospital cafeteria become such a taboo topic?|
|当地警方的处理方式，着实让人瞠目结舌，这不仅和法律规定相左，更和常理明显相悖。在执法过程，“远离常理必有妖”。执法者做出如此荒唐、荒谬的处罚，背后或有蹊跷。当下当地公安市局法制部门已责令涉县公安局对该事件重新审核。积极改正错误执法，撤销处罚决定，并依据法定标准对发帖网友予以国家赔偿，显然是当地执法部门需要做的第一步。||The local police’s way of handling this has truly left people flabbergasted, and it is not only at odds with the law, but is also manifestly contrary to common sense. In the process of enforcing the law, “when matters are outside the bounds of the ordinary, there must be some mischief.” For those who enforce the law to have issued such a preposterous and absurd penalty like this, perhaps there was something fishy going on in the background. The local public security bureau has already quickly ordered the She County public security bureau to undertake a second review of this affair. But positively correcting their mistakes in law enforcement, cancelling the penalty decision, and issuing state compensation to the netizen who made the posts according to legally prescribed standards are only just the first steps that the relevant law enforcement department should be taking.|
|而更重要的是，该事件的处理不能止于撤销处罚并赔偿，还有必要深挖下去，举报者到底是谁？和执法者是否存在利益瓜葛？执法者何以做出如此荒唐至极的处罚？具体执法人究竟是法盲还是帮人打击报复？对于这些问题，当地政府及上级公安有必要深入调查，为这个着实荒唐的处罚，给出一个能有说服力的解释。（舒锐）||More importantly, the handling of this matter must not stop at simply cancelling the penalty and doling out some compensation: it is also necessary that we dig deeper, and find out: who was it who reported the online posts? Was there some interconnected interest between them and the enforcers of the law? On what basis did the enforcers of the law issue such a preposterous penalty? Were the specific people who enforced the law ignorant or were they helping others to engage in retaliation? The local government and superior public security authorities must fully investigate these questions, and they must offer a persuasive explanation for such a truly preposterous penalty.|
|来源：北京青年报||Source: Beijing Youth Daily|