CAMBRIDGE, England — China is in the process of establishing the rule of law. Not common law as in England or civil law as in most other countries, but socialist law. The basic difference between socialist law and other forms of law, it seems from recent practice, is that only the Chinese Communist Party can set the law and decide whether or not the courts and other enforcement agencies are correctly interpreting it.
There is no scope for judicial review of whether or not the party or government is acting in accordance with the law. Even to mount a challenge can be regarded as a criminal act, as the two men who challenged the right of the party to persecute the Falan Gong found out last week when after issuing the writ against Chinese President Jiang Zemin they were arrested and thrown in jail (including a Hong Kong citizen). In this situation amendments and additions to the still very rudimentary legal framework are carefully scrutinized to see if they are adding or cutting back on the freedoms of Chinese citizens.
The new Measures for Managing Internet Information Services issued Oct. 1 have been the subject of detailed examination by those concerned about basic civil rights in China. It is not just the market that punished Chinese Internet stocks on Wall Street when the measures were published, but more generally the Western media has found them wanting.
However, China isn’t on its own in this; all governments are still coming to terms with the Internet and working out ways to ensure that it is not used for criminal activity. The problem is how to do this in a way that does not prevent the public from taking advantage of the tremendous opportunities that the Internet offers, and which all governments recognize. Doubts have been raised that the new measures do this.
Most of the provisions of the new measures are very sensible and necessary regulations governing the establishment and incorporation of Internet information services. In addition there is a list of illegal forms of content that IIS and Internet service providers are prohibited from producing, reproducing, releasing or disseminating. No new crimes are specified in the measures. Providing such information in any form would in any case be illegal in China.
Nine categories of information are prohibited. The usual suspects of state secrets, ethnic discrimination, pornography and violence, rumor mongering and insults and slander are all there, as are the usual bans on anything not mentioned that is otherwise prohibited in any case and anything that “goes against the basic principles set in the constitution.” Nor can anyone be too surprised that the measures also prohibit “Information that is detrimental to the honor and interests of the state” and “Information that undermines the state’s policy toward religions, or that preaches the teachings of evil cults or that promotes feudalistic and superstitious beliefs.” Nothing is prohibited in the measures that was not already prohibited in China. So why the negative reaction in the markets and world press?
In part, the answer is that whenever the world is reminded that China is still a Communist Party-led authoritarian dictatorship, the usual expressions of concern and outrage have to be articulated. This is especially so in the case of the Internet, which people for some reason have been assuming is in some way above the law. It is not. It is just that in many countries, not just China, the law has still to catch up with it.
In part, the reaction is to the fact that the measures hold the providers of Internet information and Internet service responsible for and required to report on the Internet activities of their customers. This too is not new: Universities and other work units are held responsible for the activities of the students and workers, for example if they support the Falun Gong. The regulations did not have to be specified in a legal form for the firms running IIS and ISP companies to know that in China today the activities specified in the new measures were already unacceptable. They were for the most part self-regulating themselves,
So will the measures have any serious impact? They will certainly bring some order into the industry, which most people would welcome anyway. But will it reduce the flow of information to and within China? I don’t think so. The state already has the ability to censor and control the use of the Internet. All traffic to and from and within China that uses China-based ISPs goes through eight servers that are controlled by the government. They have the software to check that material going through those servers is not in the categories listed. Anyone who sends an e-mail message saying “Meet me in Tiananmen Square for a Falun Gong demonstration” is going to be caught whatever form of communication is used (except, so far it seems, digital mobile phones).
The sort of people who can use the Internet and want to have access to the sort of information that is prohibited will finds ways of obtaining that access, from the use of ISPs outside of China with word of mouth dissemination within China (including by mobile phone) to the use of simple ever-changing code language.
So it’s business as usual, with China critics finding something else to wail about harmlessly (unless you are a shareholder in a Chinese company, but in that case you deserve all the volatility you get). The Chinese people do not need to be reminded of the nature of the regime they live under and how life in China differs from life in other countries. They are well aware of it. However, while their civil liberties are still circumscribed in ways that Westerners would find unacceptable, those liberties have been increasing bit by bit over the last 20 years. There may be periods when it seems as though it is two steps forward and one step back, and sometimes the step back is a big one, but on balance most, certainly not all, Chinese feel that the quality of their lives is improving.
They will go on benefiting enormously from the Internet, from the incredible improvement in their ability to communicate with their family and friends throughout the world and in the ability to access personally and professionally valuable information globally. These benefits are obvious to all, including the government and party officials responsible for the new measures. In some ways the new measures protect those benefits because if the party did not feel it could regulate the Internet it could well prohibit its use entirely. The measures can be taken as a sign that it knows, in fact, that it cannot do that.
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