[Joint House and Senate Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
FREEDOM OF EXPRESSION
=======================================================================
REPRINTED
from the
2007 ANNUAL REPORT
of the
CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
OCTOBER 10, 2007
__________
Printed for the use of the Congressional-Executive Commission on China
Available via the World Wide Web: http://www.cecc.gov
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CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
LEGISLATIVE BRANCH COMMISSIONERS
House Senate
SANDER LEVIN, Michigan, Chairman BYRON DORGAN, North Dakota, Co-Chairman
MARCY KAPTUR, Ohio MAX BAUCUS, Montana
MICHAEL M. HONDA, California CARL LEVIN, Michigan
TOM UDALL, New Mexico DIANNE FEINSTEIN, California
TIMOTHY J. WALZ, Minnesota SHERROD BROWN, Ohio
DONALD A. MANZULLO, Illinois SAM BROWNBACK, Kansas
JOSEPH R. PITTS, Pennsylvania CHUCK HAGEL, Nebraska
EDWARD R. ROYCE, California GORDON H. SMITH, Oregon
CHRISTOPHER H. SMITH, New Jersey MEL MARTINEZ, Florida
EXECUTIVE BRANCH COMMISSIONERS
PAULA DOBRIANSKY, Department of State
CHRISTOPHER R. HILL, Department of State
HOWARD M. RADZELY, Department of Labor
Douglas Grob, Staff Director
Murray Scot Tanner, Deputy Staff Director
(ii)
Freedom of Expression
INTRODUCTION
The Commission's previous recommendations addressed three
areas where China's citizens do not enjoy the right to free
expression. First, the Commission has noted that restrictions
on the free flow of information threaten the well-being of
Chinese citizens and, increasingly, citizens around the world.
In its 2003 Annual Report, the Commission noted that China's
news media restrictions prevented citizens from being fully
informed during the 2003 SARS crisis. After China began
considering a proposal in 2006 to further limit media coverage
during public emergencies, the Commission recommended in its
2006 Annual Report that the President and Congress urge China's
leaders to recognize the importance of complete transparency in
the administration of public health, and the importance of an
unimpeded press in providing critical information to the public
in a timely manner. Recent international concern over the
global health impacts of food, drugs, consumer products,
disease outbreaks, and pollution originating from China
underscore the importance of the free flow of information.
Over the last five years, public access to government
information, at least on paper, has improved, but major
obstacles to government transparency remain, reflecting the
Communist Party's overarching concern that it maintain control
over the flow of information. In 2007, the government passed
China's first national ``freedom of information'' regulation,
but it remains subject to a ``state secrets''
exception that gives the government broad latitude to withhold
information. The Party and government continue to maintain
tight control over the press, and the prospects for a free
press remain dim. While foreign reporters in theory were
granted some increased press freedom in accordance with
promises China made in 2001 as part of its successful bid to
host the 2008 Summer Olympic Games, China continues to use
upcoming important events such as the Party's 17th Congress in
October 2007, and corruption among Chinese reporters, as a
pretext for increased restrictions on domestic media. The lack
of a free press to monitor the government leaves citizens
poorly informed about major problems and unable to fully
investigate the root causes of such problems and the extent to
which the Party or the government should be held accountable.
Second, previous Commission reports highlighted China's
pervasive censorship of the Internet and other electronic
media. In its Annual Reports from 2002 to 2006, the Commission
recommended that the President and Congress urge the Chinese
government to stop blocking access to foreign news broadcasts
and Web sites, and allow its citizens freer access to
information on the Internet, particularly information
concerning the rights of Chinese citizens to free speech and a
free press. The Commission has also recommended that the
President and Congress urge China to cease detaining
journalists and writers, many of whom are punished for posting
essays critical of the Chinese government on the Internet.
Over the last five years, the Party and government have
continued to emphasize management and control over the
Internet. They have done so by requiring Web sites to be
licensed, blocking access to politically sensitive information
on the Internet, and detaining citizens who criticize the
government online. In 2007, Hu Jintao called for ``purifying''
the Internet, saying ``the stability of the state'' depended on
the Party taking full advantage of and successfully controlling
the Internet. The Internet poses a daunting challenge for the
Party. In 2007, citizen activists used the Internet and cell
phones to raise public awareness about cases involving slave
labor and the construction of a hazardous chemical plant,
driving the reporting agendas of the state-controlled press and
forcing the government to address these problems. Their
success, however, reflects the creativity of China's citizenry
in evading censors and the difficulty in trying to monitor
China's growing online environment, rather than any government
policy of liberalization. Furthermore, journalists and writers
who criticize the government online continue to face
imprisonment for such crimes as ``inciting subversion.''
Third, the Commission's previous reports have noted China's
prior restraints on publishing, which prevent citizens from
freely expressing ideas and opinions. In its Annual Reports
from 2003 to 2006, the Commission recommended that the
President and Congress urge the Chinese government to eliminate
prior restraints on publishing. Over the last five years,
public officials in China have maintained prior restraints on
publishing and continue to ban and confiscate books and
magazines that do not conform to the Party's political
requirements. This past year, publication and propaganda
officials stepped up their efforts to clean up the publishing
industry in preparation for the Party's 17th Congress to be
held in October 2007.
FREE FLOW OF INFORMATION
Improvements and Obstacles to Government Transparency
The Commission notes that over the last five years, the
Chinese government has made progress in increasing public
access to government sources of information. The Communist
Party and State Council have directed all levels of government
to increase transparency.\1\ In its 2003 Annual Report, the
Commission noted that most provinces and major cities had set
up detailed government Web sites.\2\ By March 2007, 86 percent
of all government agencies had official Web sites.\3\ Many of
the Web sites provide detailed and substantive information.\4\
In addition, by the end of 2006, most central government
institutions and all provinces, autonomous regions, centrally
administered municipalities, and top-level courts had
established public spokesperson systems.\5\
Over the last five years, the government has also sought to
improve its ability to respond to public emergencies and make
information available to the public more quickly. The
government's slow response to the SARS disease outbreak in 2003
and to the Songhua River chemical spill in 2005 led to passage
of measures to prevent provincial and local officials from
covering up such incidents.\6\ The Regulation on the Handling
of Public Health Emergencies, for example, requires provincial
governments to report a public health emergency to central
officials within one hour and requires central officials, or
provincial governments who have received approval from central
officials, to release information in a timely manner.\7\
However, as the Commission noted in its 2003 and 2006 Annual
Reports, these reforms were not intended to relax the
government's control over the media or the free flow of
information to the general public.\8\ Rather, the goal was to
increase the flow of information to central authorities in
Beijing, control how the press reported on the matter, and
prevent private citizens from publishing opinions regarding the
government's handling of the crisis.
In April 2007, the State Council issued the Regulation on
the Public Disclosure of Government Information (Public
Disclosure Regulation), the first national ``freedom of
information'' regulation requiring all government agencies to
release important information to the public in a timely
manner.\9\ The new regulation, which takes effect on May 1,
2008, requires government agencies to timely disclose vital
information regarding the government's handling of issues that
have been at the forefront of controversy in recent years, such
as food, drug, and product safety, public health emergencies,
environmental protection, land expropriation, the sale of
state-owned property, and population planning.\10\ The
regulation also provides citizens, legal persons, and other
organizations with the right to request information from a
government agency and to file an administrative lawsuit to
appeal an agency's decision not to provide information.\11\ The
State Environmental Protection Administration subsequently
issued implementing measures in April mandating public
disclosure of information on China's environment.\12\ [See
Section II--Environment.]
The impact of these freedom of information regulations is
limited, however, by the presence of a ``state secrets''
exception that gives the government broad latitude to withhold
information from the public.\13\ This policy reflects the
continuing perception by the Party that relinquishing too much
control over the flow of information will cause ``social
instability'' and challenge the Party's supremacy. Chinese laws
and regulations provide lists of what may be deemed a state
secret, but these lists are broad and vague, encompassing
essentially all matters of public concern.\14\ For example,
information about China's environmental pollution that would
``reflect negatively on China's foreign affairs work'' is
considered a state secret.\15\ Legal scholars in China have
noted that the inclusion of a ``state secrets'' exception in
the Public Disclosure Regulation gives officials too much
discretion to withhold information.\16\ In addition, the Public
Disclosure Regulation's heavy penalties for officials who fail
to protect state secrets may encourage even less
transparency.\17\ Moreover, citizens and journalists have
encountered resistance from local officials when requesting
information under similar administrative rules already in place
in some Chinese cities. In June 2006, a Shanghai journalist
sued the Shanghai Municipal Planning Bureau under a similar
freedom of information regulation, but lost the case and was
fired from his job as a result.\18\ Some legal experts in China
have also questioned whether provisions in such regulations,
granting citizens the right to request information, would apply
to citizens acting in their role as journalists, an
interpretation that would severely limit the law's impact.\19\
The National People's Congress recently issued the
Emergency Response Law, which requires people's governments to
publicly disclose accurate and timely information regarding
emergencies.\20\ The law was issued in August 2007 and will
take effect on November 1, 2007. The Commission noted in its
2006 Annual Report that a draft of this law contained a
provision that would have imposed a heavy fine on domestic or
foreign media who reported on a public emergency without
government approval.\21\ The Commission noted that the
provision would have impeded the efficiency of the Global
Public Health Intelligence Network, an electronic surveillance
system used by the World Health Organization to monitor the
Internet for reports of communicable diseases and communicable
disease syndromes. In a positive step, the provision was
removed from the final version of the law.\22\ The law,
however, now contains a provision prohibiting the fabrication
and spread of ``false information.'' \23\ Media who violate
this provision may be shut down.\24\ This provision could have
a chilling effect on journalists who worry that the government
retains too much discretion to determine whether information is
false or not.\25\ In January 2006, for example, public
officials sentenced journalist Li Changqing to three years in
prison for violating a Criminal Law provision that prohibits
the ``intentional dissemination of terrorist information that
is knowingly fabricated to disturb public order,'' even though
Li's reporting on a dengue fever outbreak turned out to be
materially similar to the government's own accounts.\26\
Public officials have punished citizens for sharing second-
hand information over the Internet or cell phones, threatening
the free flow of information and forcing citizens to wait for
the government's official version of the ``truth'' before
discussing important public events. Commentators in China have
expressed concern over the government's liberal application of
Article 25 of the Public Security Administration Punishment
Law, which provides for the detention of citizens who spread
rumors with the intent to disturb public order.\27\ [See
Section II--Rights of Criminal Suspects and Defendants for more
information about this law.] For example, in July 2007,
officials in Jinan city, Shandong province, detained a resident
for noting in an online discussion that she had heard that
citizens had perished in heavy flooding that hit the city.\28\
The Supreme People's Court (SPC) has continued its campaign
to increase public access to court proceedings. As the
Commission noted in its 2003 Annual Report, the SPC has taken
steps to improve the quality and availability of judicial
decisions.\29\ In June 2007, the SPC issued several opinions
calling on courts to provide public access to all stages of the
trial process,\30\ and to make more judgments available in
publications and over the Internet.\31\ The opinions, however,
contain the ``state secrets'' exception, which courts have
commonly used to conduct politically charged trials behind
closed doors.\32\ [See Section II--Rights of Criminal Suspects
and Defendants for more information about these opinions.] In
addition, court officials concerned about media threats to
judicial independence have sought to limit media reporting of
court activities. In September 2006, top officials at the SPC
announced a policy prohibiting news media from interviewing
judges or court officials without government permission and
directing the media not to issue commentary on pending court
cases.\33\
NO FREE PRESS
China's restrictions on the press violate the right to
freedom of expression as provided for under international human
rights standards and China's Constitution. Both the
International Covenant on Civil and Political Rights\34\
(ICCPR) and the Universal Declaration on Human Rights\35\
(UDHR) guarantee the freedom to seek, receive, and impart
information, through any media, regardless of frontiers.
Article 35 of China's Constitution provides China's citizens
freedom of speech and the press.\36\ While this freedom is not
absolute, the ICCPR and UDHR provide that restrictions may be
imposed only to protect the following interests: national
security or public order, public health or morals, or the
rights or reputations of others. Furthermore, the restriction
must be prescribed by law and must not exceed the scope
necessary to protect a compelling interest.\37\ China restricts
the press for political and ideological reasons. Restrictions
such as directives from propaganda officials are not prescribed
by law because they are issued by a Communist Party entity,
rather than one of the parties authorized to pass legislation
under China's Legislation Law.
Party and Government Control Over Media
China's media could play an important role in helping
inform the public about important events but, as noted above,
recent laws and regulations dealing with government disclosure
and public emergencies limit this potential. A more fundamental
limitation, however, is the Party's continued control over all
media in China,
either directly or through its control over the government
agencies that regulate China's media. The Party exercises
direct control over the media through the Central Propaganda
Department (CPD). The CPD issues directives informing
publishers and editors what stories can and cannot be covered.
It works together with lower-level propaganda departments to
deliver these directives to all media and to appoint media
managers to monitor each publication.\38\ The CPD also requires
editors and publishers to attend
indoctrination sessions. In addition, government agencies
heavily regulate the media. News publishers must be licensed by
the General Administration of Press and Publication (GAPP) and
have a government sponsor.\39\ GAPP requires all journalists to
be licensed.\40\ The State Administration of Radio, Film, and
Television (SARFT) controls the content of radio, television,
satellite, and Internet broadcasts.
Major media, such as the People's Daily and Xinhua, remain
closely affiliated with a Party or government entity.\41\
Central Party and government officials use journalists to
gather information so that they can monitor provincial and
local officials, under a policy called ``public opinion
supervision.'' \42\ Stories they deem too critical or
politically sensitive to be published in the media are instead
forwarded as intelligence reports to relevant officials through
classified channels.\43\ Commercialization of the industry in
the 1990s and the ``public opinion supervision'' policy has led
to the development of media with a reputation for more hard-
hitting journalism, including Southern Metropolitan Daily and
Caijing.\44\ Yet, even these more independent media remain
subject to control by propaganda officials and have been
singled out for punishment in the past.\45\
Roles the Media Is Expected to Play
The media in China is expected to act as the Party's
mouthpiece.\46\ Just before becoming President and Party
General Secretary, Hu Jintao, in 2002, reiterated this
longstanding policy, which has remained firmly in place during
Hu's first five years in power.\47\ For example, the Party's
Central Committee issued a resolution at the end of its sixth
plenum meeting in October 2006, calling on the news media to
promote Hu's ``harmonious society'' policy.\48\ To create a
``positive public opinion atmosphere'' for the Party's 17th
Congress in October 2007, propaganda officials issued
guidelines restricting media coverage of 20 topics, including
the 50th anniversary of the anti-Rightist campaign, judicial
corruption, and campaigns by legal rights defenders.\49\ SARFT
ordered television stations to air only ``ethically inspired TV
series'' during prime time in the months leading up to the
Party Congress.\50\
The Party also expects the media to paint central Party and
government officials in a positive light. While media may
report critically on the activities of provincial and local
officials, their criticisms must remain at that level and may
not threaten Party supremacy. The media must emphasize efforts
by central Party and government officials to remedy the
situation. For example, after news media and Internet activists
exposed the widespread use of forced labor in brick kilns in
May and June 2007, authorities chided local officials for
trying to hide information from the media, but then instructed
journalists to limit their coverage and to applaud the rescue
efforts of central Party and government officials.\51\
Media that disobey propaganda directives or publish content
unacceptable to censors continue to risk being disciplined or
censored by the Party. In November 2006, the CPD ordered senior
executives at the Beijing-based weekly magazine, Lifeweek, to
engage in self-criticism and required its journalists to
undergo political training after the magazine violated a Party
directive not to highlight politically sensitive events.\52\
Staff at a newspaper in Sichuan province were suspended for
inadvertently running an
advertisement that included a veiled reference to the Chinese
government's June 4, 1989 crackdown on the Tiananmen Square
democracy protests.\53\ In March 2007, Caijing was reportedly
ordered to withdraw an issue containing an article about a
contentious draft of the Property Law then under
consideration.\54\
Consequences of the Lack of a Free Press
Over the last five years, events such as the SARS crisis in
2003 and more recent government scandals show that the Party's
control over the press denies citizens critical information at
important times. Chinese citizens and citizens around the world
cannot effectively monitor the Chinese government because they
remain dependent on the willingness of one unsupervised source,
the Party, to provide accurate, timely, and unbiased
information. Some recent examples include:
Even after measures implemented following the
SARS crisis in 2003 discouraged local officials from
hiding information, local officials in the provinces of
Jilin and Heilongjiang delayed notifying relevant
officials and the general public about a chemical plant
explosion in 2005 that released chemicals into the
Songhua River, the main water source for the
Heilongjiang capital of Harbin.\55\ They imposed a two-
week press blackout, and the incident led to panic
among citizens and a diplomatic incident with Russia.
When the top Party official in Shanghai was
forced to step down in September 2006 amid allegations
that he had mismanaged the city's nine billion yuan
(US$1.2 billion) pension fund,\56\ propaganda officials
ordered local media to publish only official news
reports from Xinhua.\57\ During this time, Shanghai's
municipal government reportedly did not hold a press
conference for almost four months.\58\
In May 2007, international and Hong Kong
officials complained that Chinese officials were tight-
lipped about a rumored epidemic affecting pigs in a
province near Hong Kong, and about contaminated pet
food that had reportedly caused large numbers of cats
and dogs in the United States to become ill.\59\
China's media had reportedly issued few reports on the
incidents.\60\
In July 2007, the Financial Times reported
that officials at the State Environmental Protection
Administration and Ministry of Health asked the World
Bank to remove from a joint report the figure of
750,000 premature deaths every year in China, caused
mainly by air pollution.\61\ Officials reportedly said
the information was ``too sensitive'' and could cause
``social unrest.'' \62\ A foreign ministry official
denied the charge that any information had been
censored.\63\
In July 2007, propaganda officials ordered
restrictions on food safety reports after a Beijing
reporter issued a false news report alleging that food
vendors were filling steamed buns with pieces of
cardboard.\64\
Limited Prospects for a Free Press
Central government officials have urged local officials to
cooperate more with the media, but this development should not
be interpreted as a shift in government policy to allow for a
freer press.\65\ For example, in July 2007, a State Council
Information Office official criticized local officials for
blocking media coverage of the forced labor scandal at brick
factories in central China.\66\ This criticism is consistent
with the central government's ``public opinion supervision''
policy of relying on journalists to gather information so that
they can monitor provincial and local officials. The central
government's support of this policy has, however, given
commentators in China justification for calling for broader
press freedom,
although they have been careful to do so in the context of
local initiatives to restrict press freedom and to fashion
arguments consistent with ``public opinion supervision.'' \67\
For example, a deputy editor at Southern Weekend argued in an
editorial that the purpose of news is not to serve as a
propaganda tool, and that the central government's ``public
opinion supervision'' policy is intended for the press to be a
check on public power.\68\ The editorial was in response to the
Anhui provincial government's issuance in October 2006 of rules
requiring journalists to write a minimum number of ``positive''
stories about Anhui in order to receive a promotion.\69\
The Chinese government also allowed foreign journalists
greater freedom in 2007. To fulfill China's commitment to give
journalists ``complete freedom'' to report on China when it bid
for the 2008 Summer Olympic Games in 2001,\70\ Premier Wen
Jiabao signed into law new regulations in December 2006, which
eliminate the requirement that foreign journalists must obtain
government permission before conducting interviews.\71\ The new
rules, which went into effect on January 1, 2007 and expire on
October 17, 2008,\72\ have had mixed results. The Foreign
Correspondents Club of China, an association of Beijing-based
foreign journalists, and Human Rights Watch both issued reports
noting that while some journalists have said that China's
reporting environment has improved, harassment, intimidation,
and detention of foreign journalists and the Chinese citizens
they interact with remains commonplace.\73\ Problems have
included intimidation of citizens who speak to foreign
journalists,\74\ harassment of journalists in politically
sensitive areas such as the Tibet Autonomous Region,\75\
harassment of citizens who work with foreign journalists,\76\
and the refusal of local officials to recognize that the new
rules extend to non-Olympics related coverage.\77\ It remains
to be seen whether the rules will be extended beyond the
Olympics and what effect they will have on domestic
journalists. For a more detailed and updated analysis on the
impact of these regulations on freedom of expression in China,
see the Commission's Web site at www.cecc.gov.
One obstacle to press freedom in China is that the state's
control over the media contributes to corruption in the media.
According to David Bandurski, a research associate at the China
Media Project at the University of Hong Kong: ``Media
corruption is facilitated by the quasi-official status of
reporters, who are seen by many Chinese as government
functionaries with special authority. This combination of power
and profit motive is a key ingredient in many extortion
attempts.'' \78\ In May 2007, the People's Daily reported that
a person who had posed as a reporter and top editor at the
paper had collected 3.79 million yuan (US$500,000) in bribes
before being caught and sentenced to life in prison.\79\
Problems of journalists asking for bribes in return for not
publishing negative news or writing a positive story are
reportedly widespread.\80\
This corruption has provided the state with a pretext to
restrict China's media even more.\81\ In March 2007, for
example, the GAPP issued a notice requiring media to take
greater measures to purge their local offices of unlicensed
journalists after one was beaten to death by the owner of an
illegal coal mine who thought the journalist was seeking a
bribe.\82\ Later in 2007, a Beijing journalist falsified a
report on food vendors filling steamed buns with cardboard.
Amid rising international concern over China's food exports,
China responded with a crackdown on false news and illegal
publications, including ``illegal political newspapers and
magazines that fabricate political rumors.'' \83\
INTERNET CENSORSHIP
China's Internet Policy
Since the Internet first became popular in the late 1990s,
China's policy has emphasized management and control over this
medium. In a January 2007 speech to Politburo officials,
Communist Party General Secretary Hu Jintao called for
``purifying'' the Internet environment, saying that ``the
stability of the state'' depended on the Party taking full
advantage of and successfully controlling the Internet.\84\
China has controlled the Internet through licensing
requirements for Web sites, shutting down and blocking access
to Web sites that post political content, and detaining
citizens who criticize the government online or post
politically sensitive content. Its efforts have been relatively
successful. Despite heavy censorship, many citizens consider
the Internet in China to be quite free, with unprecedented
access to information about sports, entertainment, and
business, and in some cases, political content that China fails
to block. According to a recent survey, more than 80 percent of
Internet users in China are satisfied with the diversity of
content.\85\
Far from simply limiting online information that runs
counter to the Party's ideology, the Party has sought to use
the Internet to bolster its monopoly on political power and to
drive China's economy. According to the World Bank, information
and communication technologies have led China's economic
ascent, growing two to three times faster than China's overall
GDP over the last 10 years.\86\ Internet use has skyrocketed
from 59 million users in 2002 to 162 million in June 2007.\87\
According to Tim Wu, an expert on China and a professor at
Columbia Law School, ``the Chinese government has seen the
Internet as an enormous opportunity at igniting public opinion
in its favor.'' \88\ During his January 2007 speech to
Politburo officials, President Hu emphasized the central role
the Internet plays in the Party's efforts to shape public
opinion.\89\ China views the Internet as a battleground for
public opinion that is currently monopolized by the West,\90\
and has sought to overcome this perceived monopoly by
increasing Chinese sources for online information. The fact
that it is easy to communicate with large numbers of people
over the Internet, and that users rely heavily on the Internet
for news and information, make the Internet a powerful platform
for promoting the Party's ideology and policies.
Measures To Control the Internet
China's measures to control the Internet do not conform to
international standards for freedom of expression. Under the
ICCPR and UDHR, such restrictions may be imposed only if they
are provided by law and are necessary to protect national
security or public order, public health or morals, or the
rights or reputations of others.\91\ In some cases, China has
imposed restrictions to address issues of public concern, such
as privacy protection, false advertisements, spam, online
pornography, and youth addiction to the Internet.\92\ But
public officials in China also prohibit citizens from
accessing or posting online content if they find such content
to be politically unacceptable without any formal determination
of necessity based on ICCPR and UDHR standards.
Licensing System
As noted in the Commission's 2006 Annual Report, the
government requires all Web sites in China to be either
licensed by, or registered with, the Ministry of Information
Industry (MII).\93\ Web sites that fail to register or obtain a
license may be shut down and their operators fined.\94\
Authorities appear to be shutting down more Web sites in
preparation for the 17th Party Congress, many for being
unregistered.\95\ Anyone wishing to post or transmit news
reports or commentary relating to politics and economics, or
military, foreign, and public affairs, must also have a
government license.\96\ According to the OpenNet Initiative,
``In large measure, the registration regulation is designed to
induce Web site owners to forego potentially sensitive or
prohibited content, such as political criticism, by linking
their identities to that content. The regulation operates
through a chilling effect.'' \97\ China continues to draft
regulations to bring new forms of online media into the
registration system. In April 2007, for example, Xinhua
reported that the General Administration of Press and
Publication (GAPP) had drafted the Regulation on the
Supervision of Internet Publishing, which would require online
magazines to be examined and approved by GAPP prior to
publication.\98\
Monitoring, Blocking Access, and Filtering Content
China has continued to block access to foreign Web sites,
which it is able to do because it controls access at the
gateway connection between China and the global Internet.\99\
Over the past five years, the Commission has noted that at
various times China has blocked the Web sites of AltaVista,
Google, and foreign news providers such as the Voice of
America, Radio Free Asia, and the BBC, and human rights
advocacy groups such as Human Rights Watch, Human Rights in
China, Reporters Without Borders, and the Committee to Protect
Journalists. The Commission has noted in its recommendations on
the Internet that China's censorship system prevents its
citizens from accessing information about their rights and
China's violations of them. Since May 2005, the Chinese
government has prevented its citizens from accessing the
Commission's Web site. In June 2007, China reportedly unblocked
access to the English Wikipedia Web site after it had been
blocked for most of the last 18 months, but the version of
Wikipedia designed for Chinese users remained blocked. Bloggers
reported that certain pages on the English site remained
blocked as well, such as those relating to Tibet or Tiananmen
Square.\100\ In July, Yahoo!'s photo sharing Web site, Flickr,
reported that China had blocked its site, after ruling out the
possibility of a technical problem.\101\
China employs a large number of public security officials
to monitor the Internet and is improving its monitoring
capabilities as Internet usage grows. In April 2007, Xinhua
reported that by the end of June, all major portals and online
forums would be monitored by ``virtual cops'' of the Ministry
of Public Security.\102\ In May, the MII announced that by
October the ministry would complete a database of registered
Web sites that would make it easier for law enforcement
officials to keep track of the rapidly growing number of Web
sites.\103\ Xinhua reported that more than 2,000 Web sites are
registered each day.\104\
China compels Internet companies to assist in censorship by
requiring them to filter search results and to monitor the
Internet activities of its customers to ensure that ``harmful
information'' does not come online. Chinese search engines such
as Baidu, and the China-based search engines of Yahoo!, MSN,
and Google filter search results, including those relating to
the Voice of America, Radio Free Asia, and human rights.\105\
Providers of Internet access and services must monitor
customers' online activity, maintain records of such activity,
provide such information to officials as part of a ``legal
investigation,'' and remove any ``harmful'' information.\106\
In February 2007, Radio Free Asia reported that Sohu.com, a
major Chinese Internet portal, had shut down two of the blogs
of Pu Zhiqiang, a prominent lawyer who has promoted citizens'
legal rights.\107\ Internet cafes, where many Chinese access
the Internet, are also required to record the identities of
their customers, monitor their online activity, and maintain
records of both for not less than 60 days.\108\
Internet companies have also repeatedly pledged publicly to
support China's censorship policies over the last five years,
although they have shown a willingness to resist some
proposals. This past year, the Internet Society of China (ISC),
a think tank affiliated with the MII, sought to implement a
policy requiring all bloggers to register under their real
names. Real name systems may be useful for encouraging civil
discourse and accountability, but in the context of China's
tightly censored Internet it threatens what has become a haven
for expression, as bloggers had come to rely on a veneer of
anonymity\109\ that had emboldened many to publicly express
opinions they otherwise would not have. Real name systems that
have already been implemented have reportedly led to dramatic
drops in participation.\110\ In May 2007, the ISC decided
against making the proposal mandatory following industry
resistance.\111\ Instead, major Internet companies such as Sina
Corporation, NetEase.com, Inc., TOM Online, Inc., Yahoo! China,
which Yahoo! retains a minority stake in but reportedly does
not have day-to-day operational control over,\112\ and MSN's
China service, signed a self-discipline pledge in August to
encourage Internet users to use their real name when posting
blogs or essays online.\113\ Yahoo! and MSN, however, both
indicated that there were no current plans to require customers
to use their real names to register for blogging services.\114\
Imprisoning Online Critics
Over the last five years, public officials in China have
frequently used Article 105 of the Criminal Law to detain
citizens for criticizing the government and the Party online,
especially on Web sites outside of China.\115\ Article 105
outlaws ``subversion'' or ``incitement of subversion.'' The UN
Working Group on Arbitrary Detention has criticized China's use
of such ``vague, imprecise, and sweeping'' provisions to punish
peaceful expression of rights guaranteed in the UDHR and
ICCPR.\116\
Over the past year, public officials in China have punished
numerous online critics in the run-up to the 17th Party
Congress and the 2008 Beijing Summer Olympic Games.
In October 2006, a court in Hebei province
sentenced Internet essayist Guo Qizhen to four years in
prison for inciting subversion in connection with 30
essays he posted on a U.S.-based Web site.\117\
In October 2006, a court in Shandong province
sentenced Internet essayist Li Jianping to two years in
prison for inciting subversion in connection with
essays he posted on foreign Web sites.\118\
In March 2007, a court in Zhejiang province
sentenced writer Zhang Jianhong (whose pen name is Li
Hong) to six years in prison for inciting subversion by
``slandering'' the government and China's social system
in 60 essays he posted on foreign Web sites.\119\
In April 2007, a Zhejiang court sentenced
painter and writer Yan Zhengxue to three years in
prison for inciting subversion by ``attacking the
Party's leaders'' on foreign Web sites.\120\
In August 2007, a Zhejiang court sentenced
writer Chen Shuqing to four years in prison for
inciting subversion after he criticized the government
online.\121\
The above individuals in Zhejiang were reportedly members
of the China Democracy Party (CDP) or charged with being a CDP
member,\122\ and joined other reported CDP members in Zhejiang
who were punished this past year, including Chi Jianwei and Lu
Gengsong. Chi was sentenced to three years in prison in March
for ``using a cult to undermine implementation of the law''
\123\ and Lu was detained in August on charges of inciting
subversion.\124\ [See Section III--Civil Society for more
information on the CDP.]
Authorities also refused to renew the license of Li Jianqiang,
the lawyer who represented Chen, Zhang, Yan, and Guo.\125\ Li
has represented numerous writers and activists, including
freelance writer Yang Tongyan (whose pen name is Yang
Tianshui), sentenced in May 2006 to 12 years in prison on
``subversion'' charges for criticizing the government online
and attempting to form a branch of the CDP.\126\
Public officials in China have also used Article 105 to
punish citizens who criticize China's human rights record in
the context of the 2008 Olympic Games. In August 2007, public
security officials in Jiamusi city, Heilongjiang province,
arrested Yang Chunlin and charged him with inciting subversion
after he organized an open letter titled ``We Want Human
Rights, Not the Olympics,'' and gathered more than 10,000
signatures from farmers who had reportedly lost their
land.\127\
Additional information on these cases and others is
available on the Commission's Political Prisoner Database [See
Section I--Political Prisoner Database].
Both the UDHR and ICCPR allow for restrictions on free
speech only to the extent necessary to protect national
security. Available opinions from these cases, however, provide
no examples of any subversive language and make no attempt to
show that the actions in question caused or were likely to
cause a threat to China's national security.\128\ Moreover, the
courts did not place any constitutional limitations on the
authority of the government to criminalize certain types of
speech, or balance the need to protect national security with
the right to freedom of expression. Chinese officials have also
begun to punish citizens for simply looking up and viewing Web
sites deemed to be reactionary or a threat to its power. Zhang
Jianping was barred from using the Internet for six months
after he allegedly accessed the Web site for the Epoch Times, a
New York-based newspaper linked to Falun Gong and known for its
critical coverage of China.\129\
Challenges to Control
The Internet presents a daunting challenge for the Party.
Its decentralized nature and the ability to send information to
large numbers of people quickly makes it increasingly difficult
to control.\130\ This challenge is expected to increase over
time as more people use the Internet and rely on it for
information. With a penetration rate of only 12.3 percent of
China's population, below the world average of 17.6 percent,
there is plenty of room to grow.\131\ The average number of
hours per week spent online rose from 11.5 in 2002 to 18.6 in
June 2007. Almost all Internet users in China look to the
Internet first for information and more than three-fourths said
that they first found out about a major news event from the
Internet.
Commentators have noted recently that the Internet and
blogs in particular are becoming a powerful vehicle for
citizens to provide one another information that contrasts with
information in the state-controlled press and Party propaganda.
The number of blogs, personalized Web pages that citizens use
to provide running commentary on all kinds of topics, has grown
to an estimated 20 million in China.\132\ Xiao Qiang, Director
of the China Internet Project at the University of California
at Berkeley, testified at the Commission's hearing in September
2006 that ``[o]nline discussions of current events, especially
through Internet bulletin board systems (BBS) and Weblogs, or
`blogs,' are having real agenda-setting power.'' According to
Ashley Esarey, a Middlebury College professor and expert on
China's media controls, China's blogs exhibit much higher
freedom and pluralism than the state-controlled press.\133\ The
Internet has provided a platform for ``citizen journalists''
who operate largely outside of the censorship system for
traditional media\134\ and citizens are using less regulated
blogs to break news stories. ``[E]very blogger is a potential
source of news. The Internet has the power to take any local
news story and make it national news overnight,'' said Li
Datong, the ousted former editor of Freezing Point, a weekly
published by the China Youth Daily, who now writes for the
current affairs Web site openDemocracy.\135\
Other information sharing technologies, especially cell
phones, are posing similar challenges to China's information
control. Cell phone use is ubiquitous in China and popular
among broad segments of the population. By July 2007, cell
phone usage had grown to 500 million, almost 40 percent of the
population.\136\ Rural residents made up nearly half of China
Mobile's 53 million new cell phone subscribers in 2006.\137\
While cell phones are a less conducive platform for exchanging
large amounts of information, in China they are a popular tool
for sending short text messages. Chinese of all ages use the
``text messaging'' function much more often than in the United
States, where it has remained largely the province of the
young.\138\ China also employs censorship technology to filter
out politically sensitive text messages.\139\
Citizens have been using the Internet and cell phones with
increasing success to shape and even drive the reporting
agendas of mainstream news outlets, and to force governments to
address problems. Censors have not been able to stop an initial
tide of information and instead have been left to contain the
situation after the fact. Several high-profile instances over
the last year include:
Officials in the southeastern port city of
Xiamen, home to more than 2 million people, planned to
build a 300-acre, 10.5 billion yuan (US$1.4 billion)
hazardous chemical plant in a heavily populated
neighborhood.\140\ In March 2007, central government
officials criticized the project's safety,\141\ but
officials in Xiamen kept local residents in the dark
about the concerns and made sure local media touted the
project's economic benefits.\142\ A local resident who
became aware of the concerns began to use his blog to
organize opposition to the plant, telling readers the
plant would hurt the local property market and tourism
industry.\143\ Word quickly spread over the Internet.
Meanwhile, residents began to circulate cell phone text
messages comparing the plant to an ``atomic bomb.''
\144\ Xinhua
reported that citizens sent nearly one million text
messages opposing the project, leading local officials
to suspend construction in May 2007.\145\ Despite local
officials' efforts to censor the Internet and cell
phones, area residents used both to organize and
document protest marches in early June that attracted
thousands.\146\
The Internet also helped bring nationwide and
international attention to the kidnapping of migrant
workers forced into labor in brick factories in central
China. In early June 2007, the relative of a rescued
child posted a plea on the Internet on behalf of
hundreds of parents still looking for missing
children.\147\ The post was rejected by a Xinhua forum
for containing ``sensitive content,'' but was
successfully posted on
another forum. Her original post and a re-posting were
each viewed hundreds of thousands of times. Following
the postings, China's traditional media outlets gave
the story extensive coverage, exposing in graphic
detail the large numbers of migrant workers, including
many children and mentally ill, who were forced under
heavy guard to work for no pay and little food.\148\ In
response, the government launched raids involving a
reported 35,000 policemen, ordered media to highlight
the Party's rescue efforts, sought to discredit the
Internet activist who helped uncover the scandal, and
warned parents and lawyers for victims not to speak to
journalists.\149\ [See Section II--Worker Rights for
more information on the labor issues relating to this
case.]
In March 2007, Chinese bloggers made a
national news sensation of a couple in Chongqing city
in western China who resisted pressure to sell their
home to developers, leaving their house protruding in
the air like a nail after the land around it had been
excavated.\150\ Bloggers posted photos of the ``awesome
nail house'' and traveled to the scene to conduct their
own reporting of the story, which hit the headlines
shortly after the landmark Property Law had been
passed.\151\
While these technological tools have offered citizens new
opportunities to express themselves and to elude censors, they
have not
increased citizens' freedom of expression per se, as the
Chinese government has consistently responded to these
outpourings of discontent with increased restrictions.
Officials imposed restrictions on media coverage, blocked
access to or removed offending blogs and cell phone text
messages, and in some cases warned citizens not to speak with
the media.\152\ After the Xiamen chemical plant protests, for
example, local officials drafted legislation that would
prohibit area Internet users from commenting on blogs and
discussion forums anonymously and require local Internet
service providers to improve their capability to filter out
``harmful and unhealthy'' information.\153\
FREEDOM TO PUBLISH IDEAS AND OPINIONS
Government Policy Toward Publishing
The Chinese government's licensing scheme for print
media\154\ that has remained in place over the last five years
does not conform to international standards for freedom of the
press.\155\ An individual who wishes to publish a book,
newspaper, or magazine may not do so on their own, but must do
so through a publisher that has been licensed by the General
Administration of Press and Publication (GAPP).\156\ The GAPP
requires that to obtain a license, publishers must have a
government sponsor and meet minimum financial
requirements.\157\ Every book, newspaper, and magazine must
have a unique serial number, and the GAPP maintains exclusive
control over the distribution of these numbers.\158\ GAPP
officials have explicitly linked the allotment of book numbers
to the political orientation of publishers.\159\
While not speaking specifically about this licensing
scheme, Premier Wen Jiabao acknowledged in March that
government agencies with too much licensing authority, and
little restraint or oversight, had bred corruption among
officials.\160\ In July, popular writer Wang Shuo accused
television censors of abusing their authority and collecting
bribes in exchange for a television show's approval, a
situation that one official acknowledged, but denied being
widespread.\161\ Concern over corruption has not stopped
officials from continuing to expand their licensing authority
over free expression. In April 2007, the Ministry of Culture
announced that it would begin to require actors, singers,
directors, and other artists to receive certification in order
to be hired.\162\
Publishers and writers must serve the Communist Party's
interests. Long Xinmin said in October 2006 while he was
director of GAPP that press and publishing departments must
``insist on the unwavering guiding position'' of Marxism and
the Party.\163\ In November, President Hu Jintao told writers
that the Party hoped that ``each would make their own
contribution to building a harmonious society.'' \164\ In March
2007, Long Xinmin said that press and publishing industries
must ``firmly grasp the correct guidance of public opinion and
create a good public opinion environment'' for the Party's 17th
Congress and ``harmonious society'' policy.\165\
Banning and Confiscating Illegal Publications
The government continues to target publications that
contain
political and religious information and opinions with which the
government disagrees or for simply not having a license to
publish. Between 2002 and 2006, public security officials in
China confiscated 590 million ``illegal publications.'' \166\
Many of the publications are targeted for violating
intellectual property rights or containing pornographic
content, but in 2004, for example, public officials confiscated
hundreds of thousands of copies of publications solely
because of their political content. In 2005, officials seized
996,000 copies of ``illegal political publications.'' During a
two-month period in 2006, officials seized 303,000 copies of
``illegal publications'' deemed to have harmed social
stability, endangered state security, or incited ethnic
separatism.\167\ During that same period, officials confiscated
616,000 unauthorized newspapers and periodicals.\168\ In
February 2007, a GAPP official explained that a crackdown on
``illegal political publications,'' including those that
``attacked the Party's leaders,'' ``slandered the socialist
system,'' or concerned Falun Gong, would be a major focus of
the ongoing Sweep Away Pornography and Strike Down Illegal
Publications campaign in preparation for the Party's 17th
Congress.\169\ [See Section II--Freedom of Religion--Religious
Speech for more information on restrictions on religious
publications.] In the first three months of 2007 alone,
authorities confiscated 357,000 copies of publications deemed
to have harmed social stability, endangered state security, or
incited ethnic separatism.\170\
China's onerous licensing requirements encourage citizens
to publish illegally, eroding the rule of law, and subjecting
them to the risk that they will be caught and their publication
shut down. One editor of a college magazine in China said in
June 2007 that he had set up his own campus magazine because he
had been disappointed with other magazines in China, which he
described as ``homogeneous, very contrived, and lacking in
energetic content.'' \171\ A professor commenting on the
publications, however, said that without a publication number
the students were engaged in illegal publishing. The professor
said the licensing system was intended to ensure that
publications were not ``abused by certain groups.'' \172\
Censoring Publications
Authors who have published through a licensed publisher
still risk being censored. Propaganda officials decide what to
censor behind closed doors, making verification difficult and a
legal challenge impossible. The Hong Kong-based South China
Morning Post reported that at a meeting in January 2007, GAPP
said it had banned eight books because propaganda officials
determined they had ``overstepped the line.'' \173\ The books
dealt with topics such as China's media, SARS, the Cultural
Revolution, the Great Leap Forward, and democracy. Officials
reportedly criticized one of the books for ``romanticizing''
Japan's occupation of China in the 1930s and 1940s and others
for revealing state secrets.\174\
In response to media attempts to confirm the ban, GAPP
officials denied its existence.\175\ Publishers, however,
confirmed the ban.\176\ As punishment, authorities reportedly
required the editors at one publisher to write self-criticisms
and forego bonuses, and reduced the publisher's allotment of
book numbers by 20 percent. Zhang Yihe, the daughter of a
prominent rightist figure from the 1950s and whose book on the
repression faced by classical opera stars in 1960s China was
banned, sought to have a Chinese court overturn the action, but
two courts in Beijing refused to accept her application.\177\
Preventing Writers From Traveling Freely
Chinese officials have also punished critics by restricting
their travel. In February 2007, local police officials
prevented 20 writers from attending an International PEN
conference in Hong Kong by refusing to approve their travel
documents or warning them not to go.\178\ The writers included
Zhang Yihe and Zan Aizong, a journalist who was detained in
2006 after he posted reports on
foreign Web sites about detentions of Protestants protesting
the destruction of a church in Zhejiang province.
POLITICAL PRISONER DEVELOPMENTS
The case of Shi Tao, a Chinese journalist currently serving
a 10-year sentence for ``illegally providing state secrets to a
foreign organization,'' \179\ gained greater attention outside
of China in 2007, as new information about his case became
public. In 2004, Shi Tao reportedly e-mailed notes to a New
York-based democracy Web site that were from a propaganda
document restricting media coverage during the 15th anniversary
of the 1989 Tiananmen democracy protests. Shi Tao's conviction
in 2005 was based in part on information provided by Yahoo!
China, then under the control of Yahoo!.\180\ In July 2007, the
Dui Hua Foundation and Boxun released a copy of the request
Chinese police made to Yahoo! China seeking information about
Shi Tao's e-mail account. The release of the request brought to
light new information about the basis of the request as
communicated to Yahoo! China because it indicates that the
request related specifically to a suspected ``illegal provision
of state secrets'' case.\181\ In addition, Shi Tao's case
remains significant because he exposed China's censorship of
its media. As the global impact of events within China has
grown, China's censorship of the media has become more
important because the rest of the world relies on China's media
to better understand such events. The Commission will continue
to monitor and note future actions by Chinese officials to
punish citizens for exposing censorship of China's media, in
violation of these citizens' internationally protected right to
freedom of expression.
Another journalist, Zhao Yan, completed his three-year
sentence for fraud and was released in September 2007.\182\
Authorities originally arrested Zhao, a Chinese researcher for
the New York Times (NYT), for providing state secrets to
foreigners.\183\ Sources said the ``state secret'' was
information that former President and Communist Party General
Secretary Jiang Zemin had offered to resign as Chairman of the
Central Military Commission. Jiang's resignation was later
reported in the official press. In August 2006, an intermediate
court in Beijing sentenced Zhao to three years in prison on an
unrelated fraud charge dating from 2001, but acquitted him of
disclosing state secrets. Jerome Cohen, an expert on Chinese
law and advisor to the NYT on Zhao's case, testified at a
Commission hearing in September 2006 that Zhao was ``sentenced
to three years in prison after another trial that can only be
regarded as a farce, and after highly illegal--according to
Chinese law--pre-trial detention, interrogation, et cetera.''
In a positive sign, one journalist was released early while
another received a sentence reduction. Local officials released
former Xinhua journalist Gao Qinrong from a prison in Shanxi
province in December 2006, 4 years before his 12-year sentence
was to expire.\184\ Gao was sentenced in 1999 after he exposed
corruption at an irrigation project in Yuncheng district,
Shanxi province, that implicated top provincial officials. Xu
Zerong received a nine-month sentence reduction on an unknown
date and is due for release in September 2012.\185\ Xu, a
senior research fellow at the Guangdong Academy of Social
Sciences in Guangzhou city and head of an independent
publishing company in Hong Kong, was sentenced to 13 years in
prison in 2001 for revealing state secrets by copying and
sending historical material dating from the 1950s about the
Korean War to researchers overseas, and illegally operating a
business by selling books and periodicals without officially
issued book numbers.
Additional information on these cases and others is
available on the Commission's Political Prisoner Database [see
Section I--Political Prisoner Database].
Endnotes
\1\ CECC, 2005 Annual Report, 11 October 05, 103. According to a
2005 State Council Information Office White Paper: ``The Chinese
government requires its subordinate departments at all levels to make
public their administrative affairs as far as possible, so as to
enhance the transparency of government work and guarantee the people's
right to know, participate in and supervise the work of the
government.'' State Council Information Office, White Paper on
Political Democracy, 19 October 05.
\2\ CECC, 2003 Annual Report, 2 October 03, 61-62.
\3\ ``China Effectively Promotes Administrative Transparency,''
People's Daily (Online), 23 March 07.
\4\ For example, the Web site for the State Environmental
Protection Administration contains links to relevant policies, laws,
and regulations, a daily report on air quality in major cities, and
news stories on the environment. State Environmental Protection
Administration of China (Online), visited on August 28, 2007.
\5\ ``China's Media Announcement Work and Construction of Media
Spokesperson System Makes New Progress'' [Zhongguo xinwen fabu gongzuo
he xinwen fayanren zhidu jianshe qude xin fazhan], China.com.cn
(Online), 22 January 07; ``Supreme People's Court and High Courts Have
Already All Established News Spokespersons'' [Zhongguo zuigaofayuan he
gaojifayuan yi quanbu jianli xinwen fayanren], Xinhua, reprinted in
People's Daily (Online), 12 September 06.
\6\ See, e.g., Regulation on the Handling of Public Health
Emergencies [Tufa gonggong weisheng shijian yingji tiaoli], issued 9
May 03, art. 45; Ching-Ching Ni, ``China Toughens Stance on
Environmental Protection,'' Los Angeles Times (Online), 22 February 06;
Elaine Kurtenbach, ``Environmental Agency Says Disasters Must Be
Reported Within One Hour,'' Associated Press, reprinted in South China
Morning Post (Online), 7 February 06.
\7\ Regulation on the Handling of Public Health Emergencies, arts.
19, 25.
\8\ CECC, 2003 Annual Report, 37; CECC, 2006 Annual Report, 20
September 06, 102.
\9\ Regulation of the People's Republic of China on the Public
Disclosure of Government Information [Zhonghua renmin gongheguo zhengfu
xinxi gongkai tiaoli], issued 5 April 07, art. 1.
\10\ Ibid., arts. 10, 11, 12.
\11\ Ibid., arts. 13, 20, 21, 22, 23, 24.
\12\ Measures on Environmental Information Disclosure (Trial)
[Huanjing xinxi gongkai banfa (shixing)], issued 11 April 07.
\13\ Regulation on Public Disclosure of Government Information,
art. 14; Measures on Environmental Information Disclosure (Trial), art.
12.
\14\ See, e.g., Provisions on the Protection of Secrets in News
Publishing [Xinwen chuban baomi guiding], issued 13 June 92, art. 14:
``Anyone wishing to provide a foreign news publishing organization a
report or publication with contents that relate to the nation's
government, economy, diplomacy, technology or military shall first
apply to this agency or their supervising organ or unit for examination
and approval.'' See also PRC Law on the Protection of State Secrets
[Zhonghua renmin gongheguo baoshou guojia mimi fa], issued 5 September
88, art. 8; Measures for the Implementation of the Law on the
Protection of State Secrets [Zhonghua renmin gongheguo baoshou guojia
mimi fa shishi banfa], issued 25 April 90, art. 4; and Article 1 of the
Explanation of Certain Issues Regarding the Specific Laws to be Used in
Adjudicating Cases of Stealing or Spying to Obtain, or Illegally
Supplying, State Secrets or Intelligence for Foreigners [Guanyu shenli
wei jingwai qiequ, citan, shoumai, feifa tigong guojia mimi, qingbao
anjian juti yingyong falu ruogan wenti de jieshi], issued 20 November
00, which states: ``The term `intelligence' in Article 111 of the
Criminal Law refers to items which involve the security and interests
of the nation, but which are not public or which, according to relevant
regulations, should not be made public.'' See also ``Secrets Protection
Knowledge'' [Baomi zhishi], posted on the Administration for the
Protection of State Secrets of Guangdong province Web site, which
states: `` `Relating to the security and interests of the nation,'
means that, if a secret matter were known by people who do not
currently know it, it would result in various kinds of harm to the
security and interests of the nation.'' In September 2003, the
Guangzhou Daily published a warning to readers that everyone from
Internet users to garbage collectors can run afoul of China's state
secrets legislation. ``If a Nanny Can Disclose State Secrets, Then
Average Citizens Should Raise Their Awareness of Preserving Secrets''
[Baomu jingran xielou guojia jimi baixing yexu tigao baomi yishi],
People's Daily (Online), 5 September 03.
\15\ Regulations on the Specific Scope of State Secrets in
Environmental Protection Work, issued 28 December 04, art. 2; Human
Rights in China (Online), ``State Secrets: China's Legal Labyrinth,''
June 2007, 174.
\16\ Ye Doudou and Duan Hongqing, ``How Wide Is the Door to Chinese
Governments' Information Disclosure,'' Caijing (Online), 2 May 07;
``China Issues Landmark Decree To Encourage Gov't Transparency,''
Xinhua (Online), 24 April 07.
\17\ Human Rights in China, ``State Secrets: China's Legal
Labyrinth,'' 51.
\18\ Committee to Protect Journalists (Online), ``Falling Short, As
the 2008 Olympics Approach, China Falters on Press Freedom,'' August
2007, 17; ``Shanghai Journalist Sues Municipal Authorities for Refusing
Interviews'' [Caifang zao jujue shanghai jizhe qisu shi guihua ju xinxi
bu gongkai], Xinhua (Online), 2 June 06.
\19\ Ibid.
\20\ PRC Emergency Response Law, enacted 30 August 07, art. 53.
\21\ CECC, 2006 Annual Report, 20.
\22\ ``China Adopts Emergency Response Law,'' People's Daily
(Online), 30 August 07.
\23\ PRC Emergency Response Law, art. 54.
\24\ Ibid., art. 65.
\25\ The South China Morning Post quoted one Shanghai journalist as
saying, ``Who gets to define what false information is? It's still up
to the government. They can still do whatever they want. As long as the
system stays the same, I can't imagine any major improvement.'' Ting
Shi, ``Journalists Welcome Revision of Rules on Reporting
Emergencies,'' South China Morning Post (Online), 26 June 07.
\26\ ``Li Changqing Gets Three Years Imprisonment for Reporting
Disease Outbreak,'' CECC Human Rights and Rule of Law Update, February
2006, 15-16.
\27\ PRC Public Security Administration Punishment Law, enacted 28
August 05, art. 25. See, e.g., Yan Lieshan, ``Xin Yanhua's Luck and the
Bad Fortune of the Three Xinyi Netizens'' [Xin Yanhua de jiaoxing he
xinyi sanwangmin de buxing], Southern Metropolitan Daily (Online), 12
July 07; and Zhan Jiang, ``Selectively Taking Citizens' Text Messages
Out of Context Violates Freedom of Communication'' [Suiyi jiequ gongmin
duanxin qinfan tongxin ziyou], Southern Daily (Online), 27 July 07.
\28\ Yu Wei, ``Accused of Spreading Rumors While Participating in
Discussion Over Rainstorm, 23 Year Old Female Jinan Internet User Who
Posted Is Detained'' [Canyu bayou taolun bei zhi sanbu yaoyan jinan 23
sui nuwangyou gentie bei ju], Southern Metropolitan Daily (Online), 25
July 07.
\29\ CECC, 2003 Annual Report, 64.
\30\ Supreme People's Court Several Opinions on Strengthening Open
Adjudication Work of the People's Courts [Zui gao renmin fayuan guanyu
jiaqiang renmin fayuan shenpan gongkai gongzuo de ruogan yijian],
issued 4 June 07, arts. 5, 15.
\31\ Ibid., art. 22.
\32\ Ibid., art. 3.
\33\ ``Supreme People's Court Clarifies `Restricted Area' for
People's Court News Publishing Work'' [Zuigaofayuan minque renminfayuan
xinwen fabu gongzuo ``jinqu''], Xinhua (Online), 13 September 06. For a
discussion of the competing roles that the media and the courts play
for the Party, and the media's influence over China's courts and legal
development, see Benjamin L. Liebman, ``Watchdog or Demagogue? The
Media in the Chinese Legal System,'' 105 Colum. L. Rev. 1, 7 (2005).
\34\ International Covenant on Civil and Political Rights, adopted
by General Assembly resolution 2200A(XXI) of 16 December 66, entry into
force 23 March 76 [hereinafter ICCPR]. China has signed, but has not
yet ratified, the ICCPR. The Chinese government has committed itself to
ratifying, and thus bringing its laws into conformity with, the ICCPR,
and reaffirmed its commitment as recently as April 13, 2006, in its
application for membership in the UN Human Rights Council. China's top
leaders have previously stated on three separate occasions that they
are preparing for ratification of the ICCPR, including in a September
6, 2005, statement by Politburo member and State Councilor Luo Gan at
the 22nd World Congress on Law, in statements by Chinese Premier Wen
Jiabao during his May 2005 Europe tour, and in a January 27, 2004,
speech by Chinese President Hu Jintao before the French National
Assembly.
Article 19 of the ICCPR states: ``1. Everyone shall have the right
to hold opinions without interference. 2. Everyone shall have the right
to freedom of expression; this right shall include freedom to seek,
receive and impart information and ideas of all kinds, regardless of
frontiers, either orally, in writing or in print, in the form of art,
or through any other media of his choice.''
\35\ Universal Declaration of Human Rights, adopted and proclaimed
by General Assembly resolution 217A(III) of 10 December 48 [hereinafter
UDHR]. Article 19 of the UDHR states: ``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.''
\36\ PRC Constitution, art. 35. Article 35 of China's Constitution
states: ``Citizens of the People's Republic of China enjoy freedom of
speech, of the press, of assembly, of association, of procession and of
demonstration.''
\37\ This language is found in Article 19 of the ICCPR. Article 29
of the UDHR states the following: ``everyone shall be subject only to
such limitations as are determined by law solely for the purpose of
securing due recognition and respect for the rights and freedoms of
others and of meeting the just requirements of morality, public order
and the general welfare in a democratic society.''
\38\ Ashley Esarey, ``Speak No Evil, Mass Media Controls in
Contemporary China,'' Freedom House, February 2006, 3-4.
\39\ Article 11(2) of the Regulations on the Administration of
Publishing states that publishing work units must have a sponsoring
work unit and a managing work unit recognized by the State Council's
publishing administration agency. The ``sponsoring work unit'' must be
a government agency of a relatively high level, and the publishing work
unit must answer to its sponsoring work unit and managing work unit.
Circular Regarding Issuance of the ``Temporary Provisions on the
Functions of the Sponsoring Work Unit and the Managing Work Unit for
Publishing Work Units'' [Guanyu fabu ``Guanyu chuban danwei de zhuban
danwei he zhuguan danwei zhize de zanxing guiding'' de tongzhi], issued
29 June 93, arts. 5-6; Regulations on the Administration of Publishing
[Chuban guanli tiaoli], issued 25 December 01, art. 11(2).
\40\ Measures for the Administration of Journalist Accreditation
Cards [Xinwen jizhezheng guanli banfa], issued 10 January 05; Measures
for the Administration of News Bureaus [Baoshejizhezhan guanli banfa],
issued 10 January 05; Interim Provisions for the Administration of
Those Employed as News Reporters and Editors [Guanyu xinwen caibian
renyuan congye guanli de guiding (shixing)], issued 22 March 05;
Interim Implementation Rules for the Administration of Those Employed
as Radio and Television News Reporters and Editors [Guangdianzongju
yinfa ``guangbo yingshi xinwen caipian renyuan congye guanli de shishi
fangan (shixing) de tongzhi''], issued 1 April 05. GAPP has used its
licensing authority to punish journalists for their reporting. In
September 2006, GAPP revoked the license of Zan Aizong, a journalist
who was detained for one week in August 2006 after he posted reports on
foreign Web sites about detentions of Protestants who were protesting
the destruction of a church in Xiaoshan city, Nanjing province.
``September 17-21, 2006'' [2006 nian 9 yue 17 ri -- 9 yue 21 ri],
Mediainchina.org.cn, 27 September 06. In March 2007, police in the city
of Nanjing reportedly harassed a reporter for the U.S.-based news Web
site Boxun, accusing him of working for an illegal news outlet and
failing to have a journalist license. Committee to Protect Journalists
(Online), ``China Reporter Arrested Following Months of Police
Harassment,'' 4 June 07.
\41\ Liebman, ``Watchdog or Demagogue?,'' 18-20.
\42\ CECC, 2004 Annual Report, 5 October 04, 47; CECC, 2005 Annual
Report, 56-57.
\43\ Provisions on the Protection of Secrets in News Publishing.
For example, in April 2003, two editors at the Xinhua news agency were
fired for publishing a news report about SARS that had been classified
as secret. ``Two Chinese Editors Sacked over Confidential SARS
Document,'' South China Morning Post, 29 April 2003.
\44\ Committee to Protect Journalists, ``Falling Short,'' 25.
\45\ See, e.g., CECC, 2004 Annual Report, 48; and Andrew Batson,
Geoffrey Fowler, and Juying Qin, ``China Magazine Is Pulled,'' Wall
Street Journal (Online), 9 March 07.
\46\ CECC, 2004 Annual Report, 47; CECC, 2005 Annual Report, 56-57.
\47\ ``Hu Jintao Delivers Important Remarks at National Meeting of
Propaganda Department Directors'' [Hu Jintao zai quanguo xuanchuan
buzhang huiyi shang fabiao zhongyao jianghua], Xinhua (Online), 12
January 01.
\48\ ``Party Uses Journalists, Artists, Academics To Promote
`Harmonious Society','' CECC China Human Rights and Rule of Law Update,
December 2006, 10. Following the plenum, top officials such as Li
Changchun, a Politburo member, and Liu Yunshan, a top Party official
and Director of the Central Propaganda Department, told journalists
that their ``foremost duty is to study, publicize, and carry out'' the
spirit of the sixth plenum and the important statements of President Hu
to unify the thoughts of the whole party and the whole nation, and to
be ``loyal to the Party's news work and protect the interests of the
Party and the people.'' The duty of journalists to be caretakers of the
Party's ideology is also embodied in formal regulations. See, e.g., the
Interim Provisions on the Administration of Those Employed as News
Reporters and Editors issued jointly by the General Administration of
Press and Publication, the Central Propaganda Department, and the State
Administration of Radio, Film and Television in 2005, which provides
that reporters and editors must be ``guided by Marxism, Leninism, Mao
Zedong Thought, Deng Xiaoping Theory, and the important ideology of the
`Three Represents', support the leadership of the Chinese Communist
Party, and support the socialist system'' and ``protect the interest of
the Party and the government.'' Interim Provisions on the
Administration of Those Employed as News Reporters and Editors, art. 1.
One Chinese court has recently held that for purposes of China's
criminal law, journalists at state-owned newspapers are state
functionaries. ``Former China Business Times Reporter Meng Huaihu Final
Sentence of 12 Years for Extortion'' [Zhonghua gongshang shibao jizhe
Meng Huaihu zhongshen yi shouhui zui panxing 12 nian], Xinhua (Online),
19 April 07.
\49\ ``Liu Yunshan: Begin Contruction of a Good Ideological and
Public Opinion Atmosphere for the 17th Party Congress'' [Liu Yunshan:
wei shiqi da yingzao lianghao sixiang yulun qifen], Xinhua (Online), 9
July 07; ``Perform Well News Publishing Work, To Create a Positive
Cultural Environment for the 17th Party Congress'' [Zuohao xinwen
chuban gongzuo wei shiqi da zhaokai yingzao lianghao wenhua huanjing],
Xinhua (Online), 16 July 07; Edward Cody, ``Broadcast Media in China
Put On Notice,'' Washington Post (Online), 27 February 07; Cary Huang,
``Party Introduces New Censorship Rule,'' South China Morning Post
(Online), 16 January 07.
\50\ ``China To Show Only `Ethically Inspiring TV Series' in Prime
Time From Next Month,'' People's Daily (Online), 22 January 07.
\51\ Gordon Fairclough, ``Finally Rescued, China's `Slaves' Detail
Their Plight,'' Wall Street Journal (Online), 19 June 07; ``1,340
Rescued from Forced Labor,'' Xinhua (Online), 13 August 07.
\52\ Cary Huang, ``Magazine Censured for Political `Defiance',''
South China Morning Post (Online), 30 November 06. After further
investigation, propaganda officials docked the magazine six points
under a 12-point punishment system imposed in January 2007 (12 points
meaning closure of the magazine) and issued a serious internal warning
to the executive editor. Cary Huang, ``Editor and Magazine Disciplined
by Party,'' South China Morning Post (Online), 26 April 07.
\53\ Kristine Kwok, ``Two Newspaper Staff Suspended for `June 4'
Advert,'' South China Morning Post (Online), 8 June 07.
\54\ Batson, Fowler, and Qin, ``China Magazine Is Pulled.''
\55\ CECC, 2006 Annual Report, 102.
\56\ ``Shanghai's Top Leader Removed Over Scandal Involving Alleged
Misuse of City Pension Funds,'' Associated Press (Online), 25 September
06; James T. Areddy, ``China Warns of Broader Corruption Probe,'' Wall
Street Journal (Online), 27 September 06.
\57\ ``Media Told To Downplay Demise of Party Boss,'' South China
Morning Post (Online), 27 September 06.
\58\ ``Shanghai City Government Press Conferences Come Back Online,
No Mention of Chen Liangyu'' [Shanghai shi zhengfu xinwen fabuhui
chongxin dengchang bu ti Chen Liangyu], Boxun (Online), 4 November 06.
\59\ Keith Bradsher, ``China Tells Little About Illness That Kills
Pigs, Officials Say,'' New York Times (Online), 8 May 07.
\60\ Ibid.
\61\ Richard McGregor, ``750,000 A Year Killed by Chinese
Pollution,'' Financial Times (Online), 2 July 07. The article also said
that the World Bank removed a map showing the areas with the most
deaths because it was too sensitive.
\62\ Ibid.
\63\ ``China Denies Requiring WB to Delete Environmental Data from
Report,'' Xinhua, reprinted in People's Daily (Online), 5 July 07.
\64\ ``Censors Clamp Down on Food Safety Reports,'' South China
Morning Post (Online), 31 July 07.
\65\ For example, in March 2007, State Council Information Office
(SCIO) Director Cai Wu said that ``leaders should not be afraid of
reporters.'' ``Cai Wu: Some Leaders Fear Facing Reporters Because They
Worry They Will Lose Their Official Posts'' [Cai Wu: moxie lingdao pa
jian jizhe shi danxin diudiao ziji de wushamao], Chinanews.com, 9 March
07. In January 2007, SCIO's vice-minister, speaking about foreign
journalists, said that the Chinese government was moving away from its
practice of ``managing the media'' and was preparing to ``serve'' and
not shy away from reporters. ``China Gov'ts `Serve Media, Not Manage
Them,' '' China Daily (Online), 4 January 07.
\66\ ``Official: Transparency Key to Public Faith,'' China Daily
(Online), 29 July 07.
\67\ ``Anhui Requires Journalists To Write `Positive' Reports for
Promotion,'' CECC China Human Rights and Rule of Law Update, December
2006, 18-19
\68\ ``Linking Professional Evaluations to Positive Reporting Is
Absurd'' [Zhicheng pingding yu zhengmian baodao guagou tai huangtang],
Southern Metropolitan Daily (Online), 27 October 06.
\69\ ``Anhui Requires Journalists To Write `Positive' Reports for
Promotion,'' CECC China Human Rights and Rule of Law Update, December
2006, 18-19
\70\ In 2001, when the Chinese government was bidding to host the
2008 Summer Olympic Games, Wang Wei, then the Secretary-General of the
Beijing Bid Committee, said that the government would give the news
media ``complete freedom'' to report on China and that the guarantee
had been made in China's bid documents. ``Journalists To Write Whatever
They Like if Beijing Holds 2008 Games,'' China Daily (Online), 12 July
01.
\71\ Regulations on Reporting Activities in China by Foreign
Journalists During the Beijing Olympic Games and the Preparatory Period
[Beijing auyunhui ji qi choubei qijian waiguo jizhe zai hua caifang
guiding], issued 1 December 06.
\72\ The regulations expire one month after Beijing hosts the 13th
Paralympic Games. The Paralympic Games follow the 2008 Summer Olympics
Games, which run from August 8 to August 24, 2008. ``Paralympic Games
Schedules Set,'' China Daily (Online), 22 May 06.
\73\ In a survey of 163 journalists conducted by the Foreign
Correspondents Club of China and released in August 2007, 43 percent of
the respondents said that China's reporting environment had improved,
although 95 percent said reporting conditions still did not meet what
they considered to be international standards. Respondents reported 157
incidents of interference, including 57 instances of intimidation of
local citizens who spoke with foreign reporters. Foreign Correspondents
Club of China, ``Foreign Correspondents: China Yet To Fulfill Olympic
Pledge of Free Media Coverage, Harassment Still Common,'' 1 August 07.
A report by Human Rights Watch also found that government and state
security officials, as well as unidentifiable thugs, were harassing,
intimidating, and detaining foreign journalists, but that some foreign
reporters also said that the new rules ``significantly widened access
to sources and topics previously taboo, such as access to certain
prominent political dissidents and to villages with public health
emergencies.'' Human Rights Watch (Online), ``Beijing 2008 China's
Olympian Human Rights Challenges,'' 10 August 07.
\74\ Foreign Correspondents Club of China, ``China Yet To Fulfill
Olympic Pledge of Free Media Coverage.''
\75\ Ibid. In May 2007, a foreign ministry official reportedly
summoned two foreign journalists to the ministry to reprimand them for
stories they had written about the TAR. Reporters Without Borders
(Online), ``Two Foreign Reporters Summoned and Warned About Tibet
Stories,'' 25 May 07. The new regulations do not contain any exception
or carve-out for Tibet or any other region of China. Foreign ministry
officials, however, have indicated orally that existing regulations
applicable to Tibet, such as special permit requirements, remain in
effect. In a February 13, 2007, press conference Foreign Ministry
Spokeswoman Jiang Yu said the following about the new rule's
applicability to Tibet: ``The new Regulations should be abided by
generally when foreign journalists conduct reporting activities in
Tibet and elsewhere. In the meantime, due to restraints in natural
conditions and reception capabilities, Tibetan local authorities have
some regulations for foreigners' access there, which should be abided
by. Please contact the local foreign affairs office for conducting
reporting activities in Tibet.'' Ministry of Foreign Affairs (Online),
``Foreign Ministry Spokeswoman Jiang Yu's Regular Press Conference on
13 February 2007,'' 14 February 07 (English translation); Ministry of
Foreign Affairs (Online), ``Foreign Ministry Spokeswoman Jiang Yu's
Regular Press Conference on 13 February 2007'' [2007 nian 2 yue 13 ri
waijiaobu fayanren Jiang Yu juxing liexing jizhehui], 13 February 07
(Chinese).
\76\ Human Rights Watch, ``Beijing 2008 China's Olympian Human
Rights Challenges.''
\77\ In March 2007, local officials in Hunan province detained two
BBC journalists covering a riot, telling them the rules apply only to
Olympics coverage. Reporters Without Borders (Online), ``Disturbing
Lapses in Application of New Rules for Foreign Media,'' 22 March 07.
Foreign ministry and State Council officials have publicly stated that
the rules cover not only the Olympics but also politics, economy,
society, and culture in China. ``Journalists Promised Wide Access in
2008,'' China Daily (Online), 2 December 06; ``Foreign Journalists
`Welcome in China','' China Daily (Online), 29 December 06. The
``Service Guide for Overseas Media Coverage of the Beijing Olympic
Games and the Preparatory Period'' issued by the Beijing Organizing
Committee for the Games of the XXIX Olympiad state that under the rules
``[f]oreign journalists can carry out reporting activities not only on
the Beijing Olympic Games and the preparatory period, but also on
politics, economy, society, and culture of China.'' Beijing Organizing
Committee for the Games of the XXIX Olympiad, ``Service Guide for
Overseas Media Coverage of the Beijing Olympic Games and the
Preparatory Period,'' 3.
\78\ Christopher Bodeen, ``China Media Seen as Corrupt, But Experts
Blame Communist Controls for Skewing System,'' Associated Press
(Online), 31 January 07.
\79\ ``Fraudster Who Impersonated People's Daily Deputy Editor-in-
Chief Liu Yonghong Sentenced to Life'' [Maochong renmin ribao fu
zongbianji zha pian zhe Liu Yonghong bei pan wuqi tuxing], People's
Daily (Online), 9 May 07.
\80\ Edward Cody, ``Blackmailing By Journalists in China Seen as
`Frequent','' Washington Post (Online), 25 January 07; Winny Wang,
``China To Improve Supervision of Reporters,'' Shanghai Daily (Online),
9 July 07.
\81\ The Commission noted in its 2004 Annual Report that the media
in China often focus on the ethical problems within its own industry.
CECC, 2004 Annual Report, 48.
\82\ Notice Regarding Further Improving Standards for Supervision
of Press Journalist's Stations [Guanyu jin yibu guifan baoshe jizhezhan
guanli de tongzhi], issued 18 March 07.
\83\ ``China Targets `False News' Ahead of Party's Congress,''
Associated Press (Online), 16 August 07; ``Special National Operation
Launched To Resolutely Rid News Publishing of the `Four Dangers'''
[Quanguo kaizhan zhuanxiang xingdong jianjue qingchu xinwen chuban ``si
hai''], People's Daily (Online), 15 August 07.
\84\ ``Hu Jintao: Increase the Building and Administration of
Internet Culture with a Spirit of Innovation'' [Hu Jintao: yi chuangxin
de jingshen jiqiang wangluo wenhua jianshe he guanli], Xinhua (Online),
24 January 07; ``Hu Asks Officials To Better Cope With Internet,''
Xinhua (Online), 24 January 07.
\85\ China Internet Network Information Center, 20th Statistical
Survey on Internet Development in China, 18 July 07.
\86\ ``Infocom Is `Vital' for China,'' Xinhua (Online), 27 April
07.
\87\ China Internet Network Information Center, 11th Statistical
Survey on Internet Development in China, 15 January 03; China Internet
Network Information Center, 20th Statistical Survey.
\88\ ``China's Internet Conundrum,'' Podcast with Tim Wu, CNET
News.com (Online), 1 June 07.
\89\ ``Hu Jintao: Increase the Building and Administration of
Internet Culture with a Spirit of Innovation,'' Xinhua. In his January
2007 speech, President Hu Jintao also said it was important to
``strengthen the battlefield position over ideology and public opinion
on the Internet.''
\90\ ``Build Up An Online Culture, Solidify Our Position Online''
[Jianshe wangluo wenhua gonggu wangshang zhendi], Guangming Daily,
reprinted in Xinhua (Online), 19 June 07.
\91\ This language is found in Article 19 of the ICCPR. Article 29
of the UDHR states the following: ``everyone shall be subject only to
such limitations as are determined by law solely for the purpose of
securing due recognition and respect for the rights and freedoms of
others and of meeting the just requirements of morality, public order
and the general welfare in a democratic society.''
\92\ Ariana Eunjung Cha, ``In China, Stern Treatment for Young
Internet `Addicts','' Washington Post (Online), 22 February 07; ``New
Measures Come Out: Excessive Senders of Junk Mail To Be Recorded on
`Black List''' [Xin cuoshi chutai lanfa lese youjian jiang jiru ``hei
mingdan''], Xinhua (Online), 1 March 06; ``Authorities Crack Down on
Internet Porn,'' Agence France-Press, reprinted in South China Morning
Post (Online), 15 August 07; ``China's News Websites Vow To Clean Up
the Internet,'' Xinhua, reprinted in China Daily (Online), 18 May 07.
\93\ All commercial Web sites must obtain a government license.
Measures for the Administration of Internet Information Services
[Hulianwang xinxi fuwu guanli banfa], issued 20 September 00. All non-
commercial Web site operators must register. Registration
Administration Measures for Non-Commercial Internet Information
Services [Fei jingyingxing hulianwang xinxi fuwu bei'an guanli banfa],
issued 28 January 05. Because the MII's registration system gives the
government discretion to reject an application based on content (i.e.,
whether the Web site operator intends to post ``news,'' and if so,
whether it is authorized to do so), it is qualitatively different from
registration which all Web site operators must undertake with a domain
registrar, and constitutes a de facto licensing scheme.
\94\ Peter Ford, ``Why China Shut Down 18,401 Websites,'' Christian
Science Monitor (Online), 25 September 07; ``MII Reports China's
Government Has Met its Goals in Private Web Site Crackdown,'' CECC
Human Rights and Rule of Law Update, September 2005, 5; ``Ministry of
Information Industry: Web Sites That Fail to Register May Be Shut
Down,'' CECC Human Rights and Rule of Law Update, June 2005, 3.
\95\ Ford, ``Why China Shut Down 18,401 Websites.''
\96\ ``Government Shuts Down Web Site; China Scholars and Activists
Respond,'' CECC China Human Rights and Rule of Law Update, September
2006, 12-13; ``Government Agencies Issue New Regulations Restricting
News Reporting on the Internet,'' CECC China Human Rights and Rule of
Law Update, November 2005, 4; Provisions on the Administration of
Internet News Information Services [Hulianwang xinwen xinxi fuwu guanli
guiding], issued 25 September 05.
\97\ OpenNet Initiative (Online), ``OpenNet Initiative: Bulletin
011-Analysis of China's Non-Commercial Web Site Registration
Regulation,'' 22 February 06. The Opennet Initiative comprises
researchers at the Citizen Lab at the Munk Centre for International
Studies, University of Toronto, Berkman Center for Internet & Society
at Harvard Law School, the Advanced Network Research Group at the
Cambridge Security Programme, University of Cambridge, and the Oxford
Internet Institute, Oxford University.
\98\ ``GAPP Drafts Supervision Regulation, Celebrity Magazines To
Be Supervised'' [Xinwen chuban zongshu ni qicao guanli tiaoli mingren
zazhi jiang shou jianguan], Shanghai Youth Daily, reprinted in Xinhua
(Online), 23 April 07.
\99\ OpenNet Initiative (Online), ``Internet Filtering in China in
2004-2005: A Country Study,'' 14 April 05; China Internet Network
Information Center, 20th Statistical Survey.
\100\ Steven Schwankert, ``English Wikipedia Unblocked in China,''
IDG News Service (Online), 18 June 07; Simon Burns, ``Wikipedia Partly
Unblocked in China,'' VNUnet (Online), 18 June 07.
\101\ Juan Carlos Perez, ``Flickr Investigates Blocking of Images
in China,'' IDG News Service (Online), 11 June 07.
\102\ ``Clean Up Cyberspace,'' China Daily, reprinted in Xinhua
(Online), 19 April 07.
\103\ ``China's Law Enforcement Internet Database Set for
Completion This Year,'' Xinhua, reprinted in People's Daily (Online),
28 May 07.
\104\ Ibid.
\105\ CECC, 2006 Annual Report, 35.
\106\ Measures for the Administration of Internet Information
Services, arts. 14, 15, 16.
\107\ ``Lawyer Pu Zhiqiang Sees 2 Blogs Closed Within 10 Days''
[Lushi Pu Zhiqiang shi tian nei liangge boke bei guan], Radio Free Asia
(Online), 21 February 07.
\108\ Regulations on the Administration of Business Sites of
Internet Access Services [Hulianwang shangwang fuwu yingye changsuo
guanli tiaoli], issued 29 September 02, arts. 19, 23; China Internet
Network Information Center, 20th Statistical Survey.
\109\ Bloggers are never truly anonymous because they can be traced
back to an IP address. Jason Leow, ``Why China Relaxed Blogger
Crackdown, Registration Plan Was Dropped In Face of Tech-Industry
Protests,'' Wall Street Journal (Online), 17 May 07.
\110\ See, e.g., ``Real Name Registration in Full Bloom, `Lilac'
Withers and Falls: To Post on Harbin Institute of Technology's BBS
Requires Information About Full Name and School Department''
[Shimingzhi shengkai zidingxiang diaoxie hagongda BBS fatie xuyao
xingming he yuanxi xinxi], Southern Metropolitan Daily, 13 July 07.
\111\ Jason Leow, ``China Eases Real-Name Blog Effort,'' Wall
Street Journal (Online), 23 May 07.
\112\ The Internet in China-A Tool of Freedom or Suppression?,
Joint Hearing of the Subcommittee on Africa, Global Human Rights, and
International Operations, and the Subcommittee on Asia and the Pacific,
Committee on International Relations, U.S. House of Representatives, 15
February 06, Testimony of Michael Callahan, Senior Vice President and
General Counsel, Yahoo! Inc.; ``Congressional Committee to Investigate
Disparity Between Documents and Hearing Testimony by Yahoo!,'' House
Foreign Affairs Committee (Online), 3 August 07.
\113\ Internet Society of China (Online), ``Internet Society of
China Formally Issues `Blogging Services Self-Discipline Pledge' To
Promote Orderly Development of Blogging Services'' [Zhongguo hulianwang
xiehui zhengshi fabu ``boke fuwu zilu gongyue,'' cujin boke fuwu youxu
fazhan], 21 August 07.
\114\ Reporters Without Borders (Online), ``Yahoo! and MSN Comment
on `Self-Disciplinary Pledge','' 28 August 07.
\115\ PRC Criminal Law, enacted 1 July 79, amended 14 March 97, 25
December 99, 31 August 01, 29 December 01, 28 December 02, 28 February
05, 29 June 06, art. 105.
\116\ UN Working Group on Arbitrary Detention, Report of the
Working Group on Arbitrary Detention, Mission to China, Addendum, 29
December 04, para. 78.
\117\ ``Authorities Sentence Guo Qizhen to Four Years in Prison for
Online Essays,'' CECC China Human Rights and Rule of Law Update,
November 2006, 5-6.
\118\ ``Shandong Court Sentences Internet Essayist Li Jianping to
Two Years' Imprisonment,'' CECC Human Rights and Rule of Law Update,
December 2006, 12-13.
\119\ ``Well-Known Online Article Writer Zhang Jianhong Sentenced
for Inciting Subversion of State Power'' [Wangshang zhuanwen da Zhang
Jianhong shandong dianfu guojia zhengquan an xuanpan], Xinhua,
reprinted in Phoenix Television (Online), 20 March 07.
\120\ Independent Chinese Pen Center (Online), ``ICPC Statement
Regarding Protest of Member Yan Zhengxue's Sentence'' [Duli zhongwen
bihui guanyu huiyuan Yan Zhengxue bei panxin de kangyi shengming],'' 19
April 07.
\121\ ``China Jails Internet Writer for Subversion, Disbars
Lawyer,'' Reuters (Online), 16 August 07.
\122\ Independent Chinese Pen Center, ``ICPC Statement Regarding
Protest of Member Yan Zhengxue's Sentence''; ``Overseas Service Center
of Chinese Democracy Party Calls for Attention to Case of China
Democracy Party's Chen Shuqing and Li Hong (Zhang Jianghong)''
[Zhongguo minzhu dang haiwai fuwu zhongxin huyu guanzhu Chen Shuqing,
Li Hong (Zhang Jianhong) zhongguo minzhu dang yi an], Radio Free Asia
(Online), 19 September 06.
\123\ Gao Shan, ``Zhejiang China Democracy Party Member Chi Jianwei
Sentenced to 3 Years in Prison'' [Zhejiang sheng zhongguo minzhu dang
chengyuan chi jianwei bei pan xing 3 nian tuxing], Radio Free Asia
(Online), 27 March 07.
\124\ Chinese Human Rights Defenders (Online), ``Pro-Democracy
Activist Detained for `Inciting Subversion' Government Must End
Criminalization of Free Speech,'' 25 August 07.
\125\ ``Lawyer for Journalists and Cyber-Dissidents Loses
License,'' Reporters Without Borders (Online), 6 August 07.
\126\ ``Authorities Arrest and Imprison Writers for Online Essays
Criticizing Government,'' CECC China Human Rights and Rule of Law
Update, November 2006, 4-5.
\127\ Chinese Human Rights Defenders (Online), ``Yang Chunlin
Accused of `Subversion Against the State Power','' 4 September 07;
``Refused Meeting With Lawyer, Yang Chunlin's Sister Reveals Police
Intimidation'' [Ju lushi huijian Yang Chunlin mei jie jingfang konghe],
Epoch Times, 17 September 07.
\128\ See, e.g., ``Authorities Sentence Guo Qizhen to Four Years in
Prison for Online Essays,'' CECC China Human Rights and Rule of Law
Update, November 2006, 5-6 and ``Shandong Court Sentences Internet
Essayist Li Jianping to Two Years' Imprisonment,'' CECC Human Rights
and Rule of Law Update, December 2006, 12-13.
\129\ China Information Center (Online), ``Administrative Penalty
Decision for Zhang Jianping'' [Xingzheng chufa jueding shu], 17 April
07. In punishing Zhang, officials relied on the Measures for the
Administration of Security Protection of Computer Information Networks
with International Interconnections, which prohibit individuals from
using the Internet to look up ``information that incites the subversion
of state power and the overthrow of the socialist political system.''
Measures for the Administration of Security Protection of Computer
Information Networks with International Interconnections [Jisuanji
xinxi wangluo guoji lianwang anquan baohu guanli banfa], 11 December
97. Zhang filed an administrative appeal with the Changzhou PSB. The
PSB denied the appeal on June 6 and noted that there was evidence that
Zhang had browsed certain hostile foreign Web sites, and used
censorship circumvention tactics. ``Changzhou Public Security
Administrative Reconsideration Decision Calls Tianwang A Hostile
Foreign Web Site'' [Changzhou gongan xingzheng fuyi cheng tianwang
jingwai didui wangzhan], 64tianwang.com, 6 June 07.
\130\ Xiao Qiang, ``China Censors Internet Users With Site Bans,
Cartoon Cop Spies,'' San Francisco Chronicle (Online), 23 September 07.
\131\ China Internet Network Information Center, 20th Statistical
Survey.
\132\ ``China Eases Off Proposal for Real-Name Registration,''
Xinhua (Online), 22 May 07.
\133\ Access to Information in the People's Republic of China,
Hearing of the U.S.-China Economic and Security Review Commission, 31
July 07, Written Statement Submitted by Ashley Esarey, Luce Fellow of
Asian Studies and Assistant Professor of Comparative Politics,
Middlebury College.
\134\ Edward Cody, ``China's Muckrakers for Hire Deliver Exposes
With Impact,'' Washington Post (Online), 2 May 07; Edward Cody, ``Text
Messages Giving Voice to Chinese,'' Washington Post (Online), 28 June
07. Because they post on the Internet, however, such journalists are
still subject to China's censorship of that medium.
\135\ Clay Chandler, ``Is China Emerging from a Media Ice Age,''
Fortune (Online), 1 June 07.
\136\ ``500 Mln Cellphone Users Mark China's 20th Anniversary of
Mobile,'' Xinhua, reprinted in People's Daily (Online), 20 July 07.
\137\ China Mobile Limited (Online), visited on September 27, 2007.
\138\ Mitchell Landsberg, ``Chinese Activists Turn to Cellphones,''
Los Angeles Times (Online), 1 June 07.
\139\ Louisa Lim, ``China To Censor Text Message,'' BBC (Online), 2
July 04. Until recently, pre-paid phones could be purchased
anonymously. In 2005, in an apparent move to curb fraud and spamming,
mostly committed via text message, the government began to require real
name registration of cell phones. ``China Cracking Down on Cell Phone
Fraud, Spam,'' Reuters (Online), 28 December 05. This was aimed mostly
at pre-paid phones, which in 2006 represented more than half of all
mobile phones. It is unclear how widely enforced this requirement is.
\140\ ``Xiamen Suspends Controversial Chemical Project,'' Xinhua
(Online), 30 May 07.
\141\ Ibid.
\142\ Cody, ``Text Messages Giving Voice to Chinese.''
\143\ Landsberg, ``Chinese Activists Turn to Cellphones.''
\144\ Cody, ``Text Messages Giving Voice to Chinese.''
\145\ ``Xiamen Suspends Controversial Chemical Project,'' Xinhua.
\146\ Many around China followed the protests in real time through
written reports and cell phone photos posted on blogs. Some sites were
blocked but many of the reports had already been forwarded to other
sites around China before censors could react. Cody, ``Text Messages
Giving Voice to Chinese.''
\147\ Zhu Hongjun, ``She Started the Storm Over the Shanxi Illegal
Brick Kilns'' [Shanxi hei zhuanyao fengbao bei ta dianran], Southern
Weekend (Online), 12 July 07.
\148\ Fairclough, ``Finally Rescued, China's `Slaves' Detail Their
Plight.''
\149\ ``China's Internet Justice,'' Wall Street Journal (Online),
21 June 07; Josephine Ma, ``Beijing's Damage Control Moves Behind the
Scenes,'' South China Morning Post (Online), 10 July 07; Josephine Ma,
``Top Official Plays Down Scale of Kiln Slavery,'' South China Morning
Post (Online), 14 August 07.
\150\ Howard French, ``In China, Fight Over Development Creates a
Star,'' New York Times (Online), 26 March 07.
\151\ ``Blogger Also Comes to Report on the `Awesome Nail House'''
[Boke ye lai baodao ``zui niu dingzi hu''], Southern Metropolitan Daily
(Online), 30 March 07.
\152\ Ma, ``Beijing's Damage Control Moves Behind the Scenes'';
Geoffrey York, ``The Coolest Nail House in History,'' Globe and Mail
(Online), 29 March 07.
\153\ ``Draft Xiamen Regulation of Online Forums Abolishes
Anonymous Comment Function'' [Xiamen ni guiding luntan quxiao niming
fatie gongneng], Taihai Wang, reprinted in Sina.com, 4 July 07.
\154\ Regulations on the Administration of Publishing.
\155\ Although no absolute international standard prescribes what
constitutes freedom of the press, international human rights standards
set forth a minimum prerequisite: no legal system can be said to
respect freedom of the press if it subjects the print media to any
prior restraint through a licensing scheme. In 2003, the UN Special
Rapporteur on Freedom of Opinion and Expression, the Organization for
Security and Cooperation in Europe (OSCE) Representative on Freedom of
the Media, and the Organization of American States (OAS) Special
Rapporteur on Freedom of Expression issued a joint declaration saying
that licensing schemes are unnecessary and subject to abuse. The UN
Human Rights Committee ruled in March 2000, that a licensing scheme in
Belarus similar to China's violated Article 19 because the government
of Belarus had failed to show how the licensing requirements were
necessary to protect any of the legitimate purposes set forth in
Article 19. The Commission has recommended in its annual reports that
China eliminate this prior restraint on publishing.
\156\ Notice Regarding Prohibiting the Transmission of Harmful
Information and Further Regulating Publishing Order [Guanyu jinzhi
zhuanbo youhai xinxi jinyibu guifan chuban zhixu de tongzhi], issued 5
November 01: ``No one may establish an entity whose primary purpose is
to transmit news information and engage in other news publishing
activities without permission from the press and publication
administration agency.''
\157\ Circular Regarding Issuance of the ``Temporary Provisions on
the Functions of the Sponsoring Work Unit and the Managing Work Unit
for Publishing Work Units'', arts. 5-6; Regulations on the
Administration of Publishing, art. 11(2).
\158\ Regulations on the Administration of Publishing, art. 29.
\159\ Guangdong Press and Publication Administration (Online),
``Responsible Person at the General Administration of Press and
Publication Book Office Reports on the Previous Year's National Book
Publishing Administration Work'' [Zongshu tushusi fuzeren tongbao
qunian quanguo tushuchuban guanli gongzuo], 24 February 05 (saying that
authorities should use the opinions provided when screening the
selection of topics to determine the distribution of book numbers,
because this ``reduces the risks relating to orientation'').
\160\ ``Wen Jiabao: Pushing Forward Political Reform, Strengthening
People's Supervision of the Government'' [Wen Jiabao: tuijin zhengzhi
tizhi gaige jiaqiang renmin zhengfu de jiandu], China Court Network
(Online), 16 March 07. Premier Wen also said that more public
supervision of the government was needed.
\161\ ``China's TV Watchdog Vows To Fight Corruption in TV Drama
Censorship,'' Xinhua, reprinted in People's Daily (Online), 21 June 07.
\162\ The move was intended to improve the quality of talent and
combat commercially driven ``talent shows,'' but it also increases the
government's control over artists and entertainers. ``If You Want To Be
a Music or Movie Star, You'll Need Certification'' [Yao dang gexing
yingxing xu xian chi zheng shang gang], Beijing News (Online), 19 April
07.
\163\ Hebei Administration of Press and Publication (Online),
``GAPP Director Long Xinmin Comes to Our Province To Inspect Guidance
Work'' [Guojia xinwen chuban zongshu shuzhang Long Xinmin dao wo sheng
diaoyan zhidao gongzuo], 15 October 06.
\164\ ``Party Uses Journalists, Artists, Academics To Promote
`Harmonious Society','' CECC China Human Rights and Rule of Law Update,
December 2006, 10.
\165\ ``Long Xinmin: Publish Large Volume of Outstanding
Publications To Serve Readers and as Favor to Masses'' [Long Xinmin:
chuban dapi youxiu chuban wu fuwu duzhe hui ji qunzhong], People's
Daily (Online), 28 March 07.
\166\ ``Public Security Organs Capture 590 Million Illegal
Publications of All Kinds Over Five Years'' [Gongan jiguan 5 nian
shoujiao gelei feifa chubanwu 5.9 yi jian], Xinhua (Online), 29 March
07.
\167\ ``100 Day Anti-Piracy Action: 368 Business Licenses
Rescinded'' [Fan daoban bairi xingdong: 368 jia danwei jingying xuke
zheng bei diaoxiao], People's Daily (Online), 17 September 06.
\168\ Ibid. Li Baozhong, head of GAPP's Market Supervision
Department, said that ``compared to pornographic publications, the harm
from these kinds of illegal news and economic publications is even
greater. Lawbreakers follow their own prerogatives to edit and publish
these publications, severely deviating from the correct news
orientation.'' General Administration on Press and Publication
(Online), ``Illegal Periodical `China New Observer' Investigated and
Prosecuted'' [Feifa qikan ``zhongguo xin guancha'' bei chachu], 8 May
07.
\169\ General Administration on Press and Publication (Online),
``Nationwide `Sweep Away Pornography, Strike Down Illegal Publications'
Method: Three Major Points to Implement, Maintaining High Posture''
[Quanguo ``saohuang dafei''ban: shishi san da zhongdian baochi gaoya
taishi], 27 February 07.
\170\ ``In the First 3 Months of the Year, 36 Million Pieces of
Illegal Publications of All Kinds Were Confiscated'' [Zhongguo jinnian
qian 3 ge yue shoujiao gelei feifa chubanwu 3600 duo wan jian], Xinhua
(Online), 14 April 07.
\171\ ``Guangzhou College Students Self-Publish Newspaper and
Magazine: Legality In Question'' [Guangzhou daxuesheng zi ban baozhi
zazhi hefaxing shou zhiyi], People's Daily (Online), 20 June 07.
\172\ Ibid.
\173\ ``Eight Books Banned in Crackdown on Dissent,'' South China
Morning Post (Online), 19 January 07.
\174\ ``GAPP Director Clarifies That Regarding Reported Banning of
`Past Stories of Peking Opera Stars' and Other Books: We Never Banned
Even One Book'' [Zhongguo xinwen chuban zongshu chengqing ``lingren
wangshi deng shu bei jin'': women yi ben shu dou mei chajin],
Zaobao.com, 1 February 07; ``Eight Books Banned in Crackdown On
Dissent,'' South China Morning Post.
\175\ ``GAPP: Investigated and Found No Book Ban, Zhang Yihe
Counters That Officials Don't Understand When To Admit Error''
[Chubanzongshu: you chachu wu jin shu Zhang Yihe bochi guanyuan bu dong
ren cuo], Ming Pao (Online), 9 February 07; ``GAPP Director Clarifies
That Regarding Reported Banning of `Past Stories of Peking Opera Stars'
and Other Books: We Never Banned Even One Book,'' Zaobao.com.
\176\ ``Publishers Confirm Being Punished for Printing
Controversial Books'' [Chubanshe zhengshi bei fa], Ming Pao (Online), 2
February 07.
\177\ This year is the 50th anniversary of the start of the anti-
rightist movement, a purge of intellectuals that followed the Hundred
Flowers Campaign's brief tolerance of dissent. Propaganda officials
have reportedly ordered China's media to limit coverage of this topic.
Vivian Wu, ``Court Reject Author's Plea on Ban,'' South China Morning
Post, 27 April 07.
\178\ ``China Keeps Its Critics At Home While Promising Greater
Freedom for Foreign Media,'' Associated Press (Online), 5 February 07.
\179\ CECC, 2005 Annual Report, 11 October 05, 62; Reporters
Without Borders (Online), ``Journalist Faces Possible Life Sentence for
Posting Tiananmen Document on Website,'' 4 February 05; Keith Bradsher,
``China Announces Media Crackdown,'' New York Times (Online), 15 August
07.
\180\ Yahoo!'s general counsel testified at a congressional hearing
that in October 2005 Yahoo merged Yahoo! China with Alibaba.com, a
Chinese company. Yahoo! maintained a large equity stake but no longer
has day-to-day operation control over Yahoo! China. The Internet in
China-A Tool of Freedom or Suppression?, Testimony of Michael Callahan.
\181\ Dui Hua Foundation (Online), ``Police Document Sheds
Additional Light on Shi Tao Case,'' 25 July 07; ``Regarding Court
Decisions and Security Bureau Documents for Shi Tao, Wang Xiaoning''
[Guanyu Shi Tao, Wang Xiaoning de zhongguo fayuan panjue he anquanju
wenjian], Boxun (Online), 23 July 07; Reporters Without Borders
(Online), ``Information Supplied by Yahoo! Helped Journalist Shi Tao
Get 10 Years in Prison,'' 6 September 05. The Internet in China-A Tool
of Freedom or Suppression?, Testimony of Michael Callahan;
``Congressional Committee to Investigate Disparity Between Documents
and Hearing Testimony by Yahoo!,'' House Foreign Affairs Committee
(Online), 3 August 07; Stephanie Kirchgaessner and Richard Waters,
``Yahoo Faces Scrutiny in China Case,'' Financial Times (Online), 7
August 07. In May 2007, Shi Tao also joined a lawsuit against Yahoo!
filed with the U.S. District Court for the Northern District of
California, alleging, among other things, that the company had aided
and abetted the commission of international human rights violations.
See Amended Complaint for Tort Damages, Xianing et al v. Yahoo! Inc.,
et al., U.S. District Court Northern District California, Oakland
Division, 29 May 07.
\182\ Jim Yardley, ``China Releases Jailed New York Times
Employee,'' New York Times (Online), 15 September 07.
\183\ The Beijing High People's Court upheld the sentence in
December 2006. ``Beijing Court Rejects Zhao Yan's Appeal, Affirms
Three-Year Sentence,'' CECC Human Rights and Rule of Law Update,
December 2006, 3-4.
\184\ Reporters Without Borders, ``Journalist Gao Qinrong Released
Five Years Early,'' 11 December 06. In August 1999, a court in Shanxi
province sentenced Gao for accepting bribes, fraud, soliciting
prostitutes. ``After Anti-Corruption Journalists Speaks the Truth''
[Fan fu jizhe jiangle zhenhua yihou], Southern Weekend (Online), 12
December 02. Gao's reporting exposed a sham irrigation project in
Yuncheng in 1998. ``Gao Qinrong,'' PEN Canada (Online), December 2006.
Investigative reports by several Chinese news media found that
authorities in Yuncheng detained Gao in the absence of reliable
evidence, started building a criminal case against him only after he
was detained, and convicted him on the basis of insufficient evidence.
``After Anti-Corruption Journalists Speaks the Truth'' [Fan fu jizhe
jiangle zhenhua yihou], Southern Weekend (Online), 12 December 02; ``To
Only Have Right To Interview Is Not Enough'' [Jin you caifangquan shi
bugou de], Legal Daily (Online), 14 May 01.
\185\ Dui Hua Foundation, ``Nine-Month Sentence Reduction Confirmed
for Xu Zerong,'' 26 September 06.