10/3/2017

From vagueness to clarity: Articulating legal criteria of digital content regulation in China

 

China’s regulation of digital media content, including news and social media postings, has always faced criticisms from the West. Chinese laws that draw lines in cyberspace have been called vague, repressive, and conducive to arbitrary censorship.

These understandings, however, do not provide much insight into Chinese law and the Internet. The problem is not whether these claims are true or false. It is the unspoken premise that sees China as the “other,” as “objects” to be measured by parameters familiar to critics based in the West. 

It makes more sense to understand Chinese Internet and law in a historical perspective. It helps to first understand the specific contexts that Chinese media and media governance have developed in, and then assess the law in a way that relates to Chinese history and society.  

Two things need to be taken into account. First, the law has not played a significant role in China’s media governance until recently. Second, digital media law is a large area, and content regulation is not just confined to political speech.

It is in this sense that: 1) digital media law in China has had impressive growth, especially in the regulation of “non-political” content; 2) Chinese law’s provisions on political speech are part and parcel of China’s social and political history, and cannot be assessed through de-contextualized comparison.

My research documents the historical process in which China slowly came up with the legal criteria for media regulation over the past few decades. Before China’s Market Reform, media institutions were part of the party state. There were rules on what could be uttered and what not, but they did not take the form of law.

However, the ascending role of transnational and private capital in media sectors and the development of the Internet have introduced new dynamics. In response, the Chinese state attempts to enunciate the criteria of desirable/undesirable media content publicly and in details, serving both as a warning and a guidance to anonymous Internet users and to private businesses entrusted with content control duties.
     
The earliest attempt took place in 1982, when the Ministry of Radio, Film and Television (MRFT) issued the Provisional Audiovisual Products Management Rules. Its prohibited ‘anti-China, anti-Communist, anti-socialism, obscene, indecent, and religious propagandist’ materials. In 1990, the Provisional Cable Television Management Measures (also by the MRFT) stipulated that ‘reactionary’, ‘obscene’ or ‘detrimental to national security and social stability’ programming was ‘strictly prohibited (yanjin)’ from cable television.

In 1996, the framework of media content regulation formally took shape in the Film Management Regulations. The law formally recognized the legitimacy of private and transnational capital in China’s film industry and for the first time listed seven categories of undesirable media content. Based on them, the Internet Information Services Management Measures (IISMM) of 2000 listed nine categories of prohibited content on the Internet, including those that:

1) oppose basic principles of the Constitution;
2) jeopardize national security, divulge state secrets, subvert the government, disrupt national unity;
3) harm national honor and interests;
4) instigate ethnical hatred and discrimination, disrupt ethnical unity;
5) disrupt national religious policy and promote evil cult and feudal superstition;
6) disseminate rumors, disturb social order, and disrupt social stability;
7) disseminate obscenity, indecency, gambling, violence, homicide and terror, or abet crimes;
8) libel or insult people, and infringe on people’s legal rights and interests;
9) are otherwise banned by other laws and regulations.

These nine categories have apparent problems, but as a whole they function as the umbrella provision for digital content regulation in China. Later on, digital content regulation in China made significant progress.

Some areas of the law have grown quickly with elaborated rules, while some others remain ‘under-developed’. The former includes laws of libel, privacy, intellectual property and obscenity. In these areas of digital content regulation, the Chinese state has been actively producing legal rules and provisions. Their growth is a sharp contrast to Chinese law’s ambiguous restraints on political speech.

However, the ambiguity of the law is only limited to lower-level statutes. The higher the statute is, the more explicit the provisions are. Lower-level statutes simply do not incorporate and confirm (let along to elaborate) stipulations from higher-level laws and the Constitution and choose to be vague. The political/ideological vagueness of the law is in line with the political vagueness of China in the past two decades. China’s ‘no debate’ policy has resulted in an amorphous outlook of China’s economic growth and social transformation. The law is only part of this ambiguity.   
     
To document the transformation of media law overtime is to better understand China’s Internet governance. This is, of course, not to blindly endorse the law. Instead, my research argues that China’s digital content regulations must be treated critically (in social and historical contexts) but not dismissively (say, by comparing against an idealized Western model). The political and ideological conundrums behind China’s struggles to enunciate an alternative model of media and Internet governance are real and are historical. Law is but a small window to peek into them.

Read the full research paper here.

Image: thepismire.

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