At a glance:  Panelists described the gradual evolution of defamation law in China, saying that it needed to move away from criminalizing defamation toward greater use of civil law and self-regulation.  One panelist called for an independent body to deal with Internet issues in order to limit direct government control.  “China doesn’t have enough experience in this area, which inhibits China’s communications with the world,” said one expert.  Another speaker said that, “criminal defamation was the biggest threat to freedom of speech and democratic progress in China.

Panel E: China and the Internet: Legal Issues and Developments (60 min, 15 min Q&A)
Moderator: Prof. Fu Hualing (Faculty of Law, HKU)
Speakers: Ms. Xu Xun (Executive Director, Research Centre for Media Law, China University of Political Science and Law)
Prof. Chen Xinxin (Director of the Research Centre on Media Law and Information Law at the Chinese Academy of Social Sciences)
Prof. Wang Sixin (Beijing Foreign Studies University)
Zheng Wenming (Associate Professor, Capital University of Economics and Business, Beijing)
Zhu Wei (Lecturer at the China University of Political Science and Law, Beijing)

Moderated by Professor Fu Hualing, Panel E was dedicated to exploring the growing body of defamation laws and cyberlaws in China and their implications for free speech.  Professor Xu Xun outlined the three stages in the development of defamation law in China.  In the period 1979 to 2001, the basic forms of defamation law were established.  The beginning of this century has seen limited developments in the definition of civil defamation, such that the lack of development in civil defamation law has left a gap for criminal defamation to step in.  The current state of legislation is far from being ideal for the media sector as it is prone to being sued by government officials. The third stage in the development of defamation law came after the Joint Interpretation promulgated by the Supreme Court and People’s Procuratorate on Internet rumors, under which Internet users who fabricate defamatory online rumors can be held accountable on charges of libel.

Professor Chen Xinxin focused his presentation on the classification of information management on the Internet.  Taking into account factors such as national security, social values and ethics, rights of legal entities, Professor Chen classified information into two broad categories, namely government data and public information.  With regard to information the subject of which harms private rights, Professor Chen was of the view that civil means are sufficient in allowing the person harmed to settle the matter via mediation or litigation.  The state should not play an active role in these cases, to do otherwise would be a waste of public resources.

Professor Wang Sixin criticized the Joint Interpretation mentioned above as lacking the basic considerations of free speech and insufficient judicial experience in this regard.  He also implored the vague terminology used therein, such as “tarnishing the image of the country”.  Importantly, although the Chinese Constitution provides for basic rights including the freedom of speech, its protection is severely limited as the Chinese Constitution cannot be used as a legal basis in criminal proceedings.

Highlighting the potential dangers of criminal defamation and its abuse by government officials, citing a number of cases from 2006 to 2010, Zheng Wenming condemned criminal defamation as the largest threat to the freedom of speech and democratic politics. To reform defamation law in China, he stressed that reformers should firstly recognize the balance to be struck between protecting free speech and the reputation of natural persons should be more inclined towards the former.  Secondly, reforms must be considered in the context of China and its history of repressive government policies.  While the decriminalization of defamation in China at present is unrealistic, gradual reforms should be combined with the reform of civil defamation.

In promoting a self regulatory model in Internet governance, Zhu Wei cited two cases to illustrate the futility of using the Chinese Constitution to make a legal claim, particularly in infringement of free speech claims in relation to the Internet.  He and a group of experts have produced comprehensive comparative research on guidelines on judicial awards, under which 22 defences in favour of press freedom were outlined and analyzed, taking into account the unique context of the use of the Internet in China.  According to Zhu, online platforms such as Sina Weibo are commercial organizations and should not be burdened with judicial responsibilities of determining and taking down infringing content.

Presentation by Zheng Wenming (in Chinese)

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