The Shifting Legal Boundaries Of Online Speech In China

New combinations of technologies promise to challenge the way the media are regulated. As the Internet become available not only on computers, but also hand-held devices, distinction between broadcasting and cyberspace has blurred. At a time when more than half of the population is interacting through the information networks, understanding the legal boundaries of allowable speech in these spaces is becoming increasingly essential.The recent development in Internet related legislation in China is worth noting. After a national movement of "Combat Internet Rumors" initiated by the Ministry of Public Security in2013, the People’s Supreme Court and People’s Supreme Procuratorate had jointly promulgated a judicial interpretation that expanded the application of criminal law to the Internet space. This change of law has raised controversies on many aspects. The theoretical feasibility of extending traditional criminal law into the cyberspace is questioned. Whether the newly defined legal boundaries of online speech would suppress free speech is debated in both law academia and media scholarship.This thesis examines the newly established Internet related legislation in China and explores the legal boundaries of online speech in a new media age. By studying recent legal cases involving Internet speech before and after the2013SPC&SPP Interpretation, this study details the shift in application of criminal law in cyberspace and analyzes the message behind this change of law through comparative study of relative cases in the U.S. and the U.K. Through the examination of domestic and international trend in Internet speech related legislation, this study seeks to offer an insight on major principles of Internet regulation as references for Chinese legislators.This thesis proceeds in five parts. Part I sets the theoretical framework and methodology of this study. Reviewing of literatures on public sphere and the Internet, marketplace of ideas, and legal boundaries of online speech shows that, by further blurring the distinction between vocal speech and publishing, the Internet may have dismantled the meaning of free expression by creating a nongeographic environment where no rules can be applied.This thesis is a media law study concerning the legal and regulatory issues in mass communication. Significance of the study lies in its insights on changes of legislation regarding Internet speech, as well as its detailed analysis of the reasoning behind court decisions in legal cases from the last two years, in a context that is inline with current social background of China. In a time when the conundrum in communication regulation brought by the digital revolution is testing different social systems worldwide, interpretation of the shifting boundaries of Internet speech in China and exploration of the common ground in major principles of Internet regulation is of great significance.Case study and legal study, as methodological approaches to media law and regulation study, is the dominating researching method in this thesis. Judgment paper and relative information on legal cases derive from three major sources:legal database, media report, and defense attorney.Part Ⅱ gives an overview of the new media regulation background in China regarding its history and recent development. Thirty years of market reform has changed the management philosophy and communication models of China’s media and altered the interaction between the government and the media. The rise of Weibo as an online public forum has sparked discussions about the possibility of Internet revitalizing the public sphere in China. The chaotic situation in new media regulation is problematic while the "Real Name" policy attempts to deter Internet users from posting unwelcome opinion about the system for fear of retribution.Part Ⅲ examines the2013CPC&CPP Interpretation and controversies about this legislation. Following the "Combat Internet Rumor" movement that aimed at bringing to justice those who fabricate and spread defamatory information on Weibo, the2013CPC&CPP Interpretation expanded the application of crime of defamation and picking fights and troubles to Internet public space and caused controversies over free speech issues and its legislative procedure. Part IV analyzes three most recent cases sentenced in accordance to the Criminal Law and the2013CPC&CPP Interpretation, with particular attention being paid to the reasoning of the court behind the decision of Beijing v. Qin Huohuo, the first case of online defamation in China. In all the three cases discussed in this chapter, the accused are active Weibo writers who fought for public attention and made a career as the so-called Internet marketers. They were sentenced to three to six years of imprisonment for defamation, picking fights and troubles and illegal business operations through information networks.Part V places the analytical findings of Part III and Part IV in a larger context, showing that although the extended application of law in China has become a significant tool by which to control online speech, the shifted boundaries of online speech in China cannot be understood solely in terms of free speech restraints. Relative case such as Reno v. ACLU and "twitter joke" case from the U.S. and the U.K. show that potential harm on civil liberty brought by the digital revolution is a shared international concern.From the observations in this thesis, in the last part, conclusion is draw that major principles of Internet speech related legislation and regulation should include:(1) Free speech must be held high;(2) Constitutional position of communication regulations must be specified;(3) Legislation should find the good balance between openness and restriction and give room for self-adjustment of communication technologies.This thesis further concludes that at a time when the Internet is playing an increasingly important role in restructuring social and cultural landscape, it is not surprising that the existing power seeks to maintain their advantages. Freedom of expression, in this milieu, is still of major concern in social discourse. One thing that should raise the alarm is, as technological barriers stop individual defamation victims from obtaining evidence, public prosecution of defamation may experience another comeback. Meanwhile, as broader freedom to disseminate information and ideas has led to the use of the online public forums to spread messages of menacing character and seek personal gain in fame and money by exploiting public discontent, merely address free speech on the Internet risks missing much of the complexity that explains institutional development in China today. Detailed case studies should be encouraged to reach new depth on media law studies in China. As China’s court decisions in legal cases becomes available on the Internet and legal databases, studies on the reasoning behind court decisions is possible and most valuable.