The Issue
The 2008 Beijing Olympics recently brought to light again the issues between the two diametrically opposing interests of the police power of the State and individual freedom. In particular, the legality of China’s Internet Censorship program, a.k.a. the Golden Shield Project, is being questioned in the light of the universally recognized human right of freedom of expression. The issue arose when China’s Ministry of Industry and Information Technology ordered Internet Service Providers in the country to lock down data centers from August 1 to 25, 2008. Consequently, websites with illegal content as per China’s laws are automatically blocked. The blockage limited press access to online information, a limitation, which, citizens of the democratic world view as an affront to freedom of expression. The issue, however, is not limited to the international press but to press members and citizens of China who have dealt with this type of censorship long before the 2008 Olympics started and who will deal with the same even after the 2008 Olympics is over. The issue, then, is whether or not censorship of certain Internet content is legal. Corollarily, if it is legal, to what extent may Internet Censorship be exercised? At this point, it is apt to examine the source and nature of censorship and of the freedom of expression it purports to curtail.
The Legal Concepts
Freedom of expression guarantees the right to communicate freely, unhampered by any legal or physical obstacle. Under the umbrella of freedom of expression is freedom of speech and freedom of the press. Freedom of speech specifically and narrowly refers to freedom to communicate verbally. Freedom of the press, on the other hand, refers to the freedom to communicate opinions and creative outputs through any medium. It usually refers to the freedom of expression guaranteed to members of the media such as reporters, journalists, writers, etc. Freedom of expression is recognized as a basic right under many Constitutions. It is likewise recognized as a fundamental human right under the Universal Declaration of Human Rights (UDHR). Article 19 of the UDHR states that “everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”. Under the Declaration, freedom of expression does not only cover the freedom to impart information or opinion but likewise protects the right to seek and receive information, the so-called, right to information.
Censorship, on the other hand, is the process of examining communicative material and deleting the whole or parts of which that are undesirable, harmful or sensitive to the public interest as determined by standards set by law. Censorship, as State practice, stems from the police power inherent in States as a regulative body. It is commonly exercised to regulate media content. The process of censorship ranges from limiting viewership (through ratings) to total banning of the material from public viewing. To some extent, it undoubtedly restrains the twin elements of freedom of expression – the right to express and the right to information. Yet at the same time, censorship unarguably promotes a public interest of social importance.
There is then an obvious inconsistency between the concepts of freedom of expression and censorship as an exercise of police power. The former completely rejects the notion of the latter and the latter curtails the ideals of the former. Herein enters the concept of the balancing of interests – the interest of the individual on one hand and the interest the public on the other. Between these two opposing interests which should be upheld and which should be curtailed? Local and foreign jurisprudence has consistently upheld the interests of the public over that of the individual’s. However, this preference is not without limitation. The curtailment of the individual’s rights under the mantle of police power should be justified by reasons connected with public interest such as protecting public safety, security or morals and promoting public welfare. Censorship, therefore, is a legal means of regulating acts of expression. However, legislation involving some form of censorship and the mechanisms for its implementation must be narrow and specific enough to only cover those expressions which injure and endanger the public interest or national security. Otherwise, i.e. if it is too broad, it would create a “chilling effect” (self-censorship) unduly hampering freedom of expression.
The Verdict in General: Application to Internet as Media
Internet as a medium of mass communication is a combination of radio, newspaper and television. Unregulated, it recognizes no border or limit either as to audience or to content. Anyone can have access to the internet. It is as public as a generally circulated newspaper or magazine, or television or radio broadcast. It is as candid and open as any personal diary narrating facts ranging from the mundane to the controversial. It is this very public and unrestricted character of internet content that makes it as susceptible to the same evils sought to be prevented by censorship of contents of other forms of media such as the television. Some sort of content censorship, therefore, is warranted if the same social aims sought by censorship of other forms of media is to be achieved, e.g. protecting public morals, promoting public safety, etc. The next question is what form should this censorship take and to what extent? Is it proper and legal to impose a national censorship scheme limiting access and contribution to internet information for everyone? What types of information should be filtered? The answer would lie in the policy sought to be adopted - the evils sought to be proscribed and the good sought to be achieved. The legislation, likewise, should be weighed against constitutionally recognized rights such as freedom of expression, equal protection of laws and due process. If for example, the policy is to protect public morals, then filtering should extend only to content which offends the moral norms of a community like explicit sexual depictions with no social or cultural value. As to who should be covered by the law, an examination of whether there are significant differences in susceptibility to moral corruption among persons of varying age groups could determine whether the censorship should include everyone or should be limited to minors. An examination of the Internet Censorship scheme in China vis-a-vis the constitutionally guaranteed right to freedom of expression will illustrate the propriety, legality and the limits of internet content censorship.
Analysis: The Legality of Internet Censorship in the People’s Republic of China: A Question of Law and A Question of Fact
The Universal Declaration of Human Rights guarantees freedom of expression and opinion. It can be argued that the Declaration is not a treaty or conventional law and, therefore, is not binding on the members of the United Nations and that includes Chine. However, it can be argued that the UDHR embodies fundamental principles of customary law and therefore binding on all states. Regardless of whether the UDHR is binding on China or not, the Constitution of the People’s Republic of China nevertheless recognizes the right to freedom of expression and of the press of its citizens under Article 35, Chapter II. It also provides that the state respects the lawful rights and interests of foreigners within its territory under Article 32, Chapter I. Under its laws, therefore, China recognizes that both citizens and foreigners enjoy freedom of expression and of the press.
On the other hand, the Constitution likewise imposes certain duties on the citizens and prohibits certain acts which could be the basis of the government’s exercise of police power to regulate freedom of expression and of the press. Under Article 1, Chapter I, for example, sabotage of the socialist system is prohibited. Under Chapter 2, Article 51 states the exercise of individual freedoms should not infringe on the interest of the state, the society, the collective and of individuals; Article 52 makes it a duty of the citizens to safeguard national unity; Article 53 imposes a duty upon the citizens to observe public order; Article 54 proscribes acts detrimental to the honor, security and interest of the motherland.
In effect, while the citizens of China have the right to freedom of expression and of the press, they also have duties to the state as embodied in their constitution which may curtail their freedom. The exercise of the freedom, therefore, should be consistent with the duties required of them of the state. Some form of regulation, therefore, is inevitable if all the provisions of their constitution should be given effect.
Internet censorship in China is a complicated machinery involving regulation of Internet Service Providers, Internet Content Providers, Subscribers and even Cybercafes. Regulation ranges from licensing to registration to data retention requirements to content filtering. The filtering of content which could be uploaded and accessed through the internet in China is probably the most important determining factor of whether the government does indeed infringe on individual freedom of expression when it censors information that passes through its virtual highway.
The law that outlines which contents are prohibited for access and upload in China is the Computer Information Network and Internet Security, Protection and Management Regulations. The underlying policy behind censorship of internet content is the preservation of social order and stability. Article 4 of the Regulation prohibits use that harms national security, discloses state secrets, harms the interests of the State, of society or of a group, the legal rights of citizens and also prohibits use of the internet to participate in criminal activities. Article 5 prohibits citizens from using the internet to create, replicate, retrieve or transmit certain kinds of information which can be summarized as follows: (1) information inciting lawlessness or crime, rebellion and sedition, national division, discrimination and hatred, and terrorism; (2) false or distorted information and rumors which destroy the order of society; (3) information that promotes feudal superstition, immorality, violence and crime; (4) information that is insulting and slanderous to others; (5) information that injures the reputation of state organs; and, (6) activities contrary to the constitution, laws and regulations of the country. An analysis of the prohibited contents as espoused by the Regulation will show that some of the items like item 4 and 5 as enumerated above, can pertain to personal opinions which do not necessarily result in social disorder or instability. The enumeration could be criticized as being overbroad as to extend to information that is not harmful to social order and stability.
Even assuming, that the law is specific and narrow enough, there is still the question of whether reality or practice reflects the ideals of the law. One, the technology used for Internet Censorship in China has been criticized for the lack of specificity in filtering prohibited contents. For example, if a blocked web site is hosted by a shared hosting server, all the websites hosted by the latter will also be blocked regardless of whether or not they contain prohibited material. Incidents where certain web sites which do not contain legally prohibited material but are nevertheless blocked because of technical glitches is an undesirable consequence that undeniably suppresses freedom of expression. Two, the Chinese government also regulates the posting of news in the internet by requiring entities who post such news to be licensed first. To be licensed, the approval of state information offices and State Council Information Agency must be acquired. Web sites who are not licensed can only post news published by licensed entities. Unbiased and straightforward reporting does not come within the purview of any of the prohibited content enumerated under the aforementioned regulation. Ideally, the purpose of news reporting is not to incite, to distort or to malign but to relate facts as they happen for the information of the public. Why must entities and individuals, therefore, subject their news reports first to State scrutiny, a burdensome requirement that causes restraint on freedom of the press? In other words, the State gains control of what news becomes available to the public, a control that goes way beyond the limits of police power. Three, actual filtered contents include articles on the Tiananmen protests of 1989, freedom of speech, democracy, police brutality, the Dalai Lama and the International Tibet Independence Movement. These articles, per se, are not legally prohibited by the Regulation. An article on democracy does not necessarily cause social disorder or instability. A Chinese citizen, for example, reading an informative and not persuasive article on democracy, may form his own opinion of whether or not he approves of its ideals or not. Some of the filtered contents are actually educational and academic materials not intended to incite lawlessness, crime, etc. but merely to inform the reader that such realities exist. The government, then, in its implementation of its Internet Censorship Program, censors materials not contemplated under the prohibitions in the law. Clearly, this violates freedom of expression.
In sum, while the Government of China may legally censor certain internet contents and may justify such censorship with social policies embodied in its own constitution, the mechanisms it uses, however, in the implementation of such program allows for suppression of information that is not contemplated as prohibited content under their law. On paper, internet content censorship my be legally justified by the exercise of police power. In practice, however, the exercise of this police power is arbitrary and despotic because the actual content censorship goes beyond what the law proscribes. In effect, China seems to be hiding under the guise of valid regulation in order to control the dissemination of information that is critical of or detrimental to the image of the government. Clearly, this is a blatant suppression of freedom of expression.
http://english.peopledaily.com.cn/constitution/constitution.html
http://newmedia.cityu.edu.hk/cyberlaw/gp3/pdf/law_security.pdf
http://opennet.net/studies/china#toc2b
http://en.wikipedia.org/wiki/Censorship
http://en.wikipedia.org/wiki/Universal_declaration_of_human_rights#Legal_Effect
http://en.wikipedia.org/wiki/Freedom_of_expression
http://en.wikipedia.org/wiki/Free_speech
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