Below I’ve translate a fuller version of Prof. Hu’s piece that appears on his blog.

Hu Yong

In fact, just as the debate over the “surrogate theory” was at its most intense, a netizen on the Tianya forum worried over whether the theory’s originator would wind up being “extradited” for defamation. The charge against Xiong Zhongjun isn’t defamation, perhaps because this charge has recently become rather notorious after being used indiscriminately. But the actions taken by the relevant authorities really are no different this time, placing him under criminal detention for fabricating and disseminating rumors to disrupt public order. The rate at which this vague crime has been trotted out in a series of past Internet cases is extremely high.

If we look back a bit we see that a legal trick frequently used by the relevant authorities in major public safety incidents in recent years has been to treat statements that have a certain factual basis but are not entirely accurate as rumors and crack down with force. The result is that during major social and safety incidents, statements made by Chinese citizens can carry great legal risk.

Articles 105(2), 181, 221, and 291(a) of China’s criminal code have provisions criminalizing the use of rumors and other means to incite subversion of state power, the fabrication and spread of false information to adversely affect securities trading, the fabrication and spread of false stories to damage the commercial reputation of an individual or the reputation of a commercial product, and the intentional dissemination of alarmist information known to be fabricated. Article 25(1) of the Public Order Administration Punishment Law states that “those who disseminate rumors, falsely report danger, epidemic, or alarm or intentionally disrupt public order through other means” are subject to administrative fine or detention.

With respect to the publication and dissemination of rumors via new media, the PRC Telecommunications Regulations enacted on 25 September 2000 state that no organization or individual shall use telecommunications networks to produce, reproduce, publish, or disseminate information that “spreads rumors, disrupts social order, or undermines social stability.” In the National People’s Congress Standing Committee’s 28 December 2000 “Decision on Safeguarding Internet Security,” it says that acts such as “use of the Internet to spread rumors, slander, or express or disseminate other harmful information, incite subversion of state power or the overthrow of the socialist system, or incite splitting the nation or undermining national unity,” “use of the Internet to fabricate and disseminate the trading of securities or futures or any other false information that disrupts financial order,” or “use of the Internet to defame others or fabricate facts to slander others” should be punished according to the provisions of the criminal law. The “Regulations for the Administration of Internet News Information Services” issued by the State Council Information Office and the Ministry of Information Industry on 25 September 2005 require that Internet news information services contain nothing that “spreads rumors, disturbs social order, or undermines social stability.”

These provisions appear vague because they lack concrete determinative criteria. For example, in order to hand down an administrative punishment there must be consequences that “disrupts public order,” but precisely what constitutes “disruption of public order” in such cases is subject to debate. Moreover, the law treats spreading rumors and making false reports of danger, epidemic, or alarm as the same, and the requirement of the subjective element of “intention” creates a problem: if an individual unintentionally publishes or disseminates information that is not entirely factual, should he or she bear the corresponding legal responsibility?

From the “Zhang Zhijian affair” in 2006 to [the cases of] “Red Diamond Empire” in 2007 and “SS Mountain Division” in 2008, there has been a series of cases in which netizens have been arrested or detained by law enforcement agencies throughout [China] for “re-posting” or “commenting” online. In other instances, individuals have been charged with crime for text messages. For example, in January 2007 Beijing police stated that individuals could be sentenced to five years or more for sending text messages with rumors about “tainted pork.” During the Lake Tai blue-green algae contamination, police in Wuxi placed a local resident surnamed Ding under public order detention for sending a text message by mobile phone to more than 130 people, saying that the “carcinogen level in Lake Tai water was 200 times above [the acceptable level].”

If one carefully differentiates between these cases according to the laws and regulations, it is not difficult to discover clear abuse of the law by the government. First, the government has a tendency to treat any hearsay that is not entirely factual as a rumor in the legal sense of the word. At the time when “SS Mountain Division” reposted [information about casualties in a major railroad accident], the relevant agencies were in the process of investigating and handling the train collision on the Ji’nan-Qingdao railway line and information was confusing. Even though the post inaccurately reported the number of casualties, it still confirmed that the accident resulted in a large number of casualties. In fact, in the relatively short period immediately after a major disaster or accident occurs, even the government has difficulty immediately judging whether statements are true or false. The authorities confuse the difference between disseminating rumors to disrupt public order and spreading gossip out of concern for one’s personal safety—the latter simply cannot be characterized as an illegal act. Following major disasters, many people have spread gossip without knowing whether it is true or false. Warn your friends and relatives to take care—given the current legal system, nearly every one of them could wind up arrested!

Second, the point of departure for handling rumor cases should be [consideration of] whether or not the rumor “intentionally disrupts public order” or is enough to “seriously disrupt social order” and not whether the information spread is true or false. The posts by “Red Diamond Empire” and “SS Mountain Division” reposted and quoted [other information]. The [author's] tone may be extreme, but whether a post constitutes “disruption of public order” depends on the extent of its impact and the objective consequences to which it leads—for instance, the scope of a post’s circulation, whether it resulted in public fear or had an affect on the normal order of production, work, education, or daily life.

In this case, Xiong Zhongjun simply questioned whether judicial authorities fairly enforced the law. This will not cause public fear or lead to great chaos in the city’s public order. Moreover, the authorities claim that Xiong fabricated and spread the rumor about “Hu Bin’s surrogate,” causing netizens to be suspicious and misleading public opinion. They seem to want to prove the rumor-monger’s subjective intent, but how can one determine whether Xiong’s judgment about a “surrogate” was not made out of the spirit of citizenship and the rational desire to encourage the judicial authorities to accept public oversight? The so-called dissemination of the “Hu Bin surrogate” rumor is nothing more than an individual’s analysis and suspicion based on a news photo—how can this be called a “rumor”? Those who claimed that Zhou Zhenglong faked his photograph of a tiger must be breaking out in a cold sweat—if Zhou truly photographed a tiger, all those who claimed otherwise could face extradition!

It’s especially important to emphasize that the public has the right to question or refute the veracity of any report, even government announcements. If a member of the public sends a text message or reposts relevant posts, even if they contain some untruths they should be seen as [an effort to] protect onself or exercise the right to monitor [public affairs]. To soothe people’s worries and eliminate inaccurate speech, the government must release more public, transparent information. Countries with rule of law have long held the view that one should use the criterion of “clear and present danger” to judge whether speech is a threat to public order, For example, one important reason to be tolerant of reports by the media and public concern following a disaster is that these can prevent further danger and save more lives. By comparison, the possible fear and chaos [these reports might create] is a lesser evil that must be tolerated. Rather than concocting ways to crack down on criticism, as a remedy for the biases that might be created by those expressing [mistaken information], the government can reduce the impact by releasing the truth as a means of clarification and exposing the false information that has been disseminated.

After Xiong Zhongjun was detained, one point of view held that many netizens haven’t yet grasped the difference between questioning and spreading rumors and thus abuse their “right to question.” Pray tell: Can we not question court judgments? Can we not question the state’s public authority? Is a citizen’s right to question really something that needs to be officially granted? Some say that netizens have “overstepped their oversight” [rights] in the Hangzhou drag-racing case, but everyone knows that citizens have only just begun [to exercise] their right to oversight—how can we possibly have overstepped our rights after taking a single step?

In the face of questioning and oversight from the public, the relevant authorities should reflect on why their credibility with the public is the way it is. It’s not that the Chinese public is too suspicious, but rather that they have just started to learn to be suspicious. As Li Chengpeng says: “Suspicion is a progressive force in society and is the least tolerance our country can show the public. If someday our laws were to say ’suspicion is forbidden,’ then everyone can only obey mother and go home for dinner.”