techblog86 Mind the Gap Saturday: The Internet and the Legal Environment (Part 1)

Is the Chinese Constitution the only law there is in the land? If you just skim over China’s legal system, the Constitution dating back to (only!) 1982 may be the only “bit” visible. Delve a bit deeper, though, and you discover layers upon layers of legalese. Laws, administrative regulations, regional laws, standards, ministerial regulations, and government documents — all of that is used to keep the PRC in check — legally speaking.

What’s this law lesson doing in the middle of the weekend? Didn’t you read that big brouhaha about Tudou about to be switched off? Turns out it’s time for a legal re-exam.

The Gap in China

OK, so while we’re on this, let’s take a look at the Gap — the legal Gap in China. We start off with a look at what’s illegal on the Chinese Internet. Post these inside the PRC, and live in peril:

• unconstitutional content
• content that endangers national security, leaks state secrets, overthrows the national government, or damages national unity
• content that harms state honor and interests
• content inciting ethnic violence, thereby rupturing ethnic unity
• content which goes against national religious policy, promoting superstition
• rumors that disrupt social order
• pornographic content, as well as content related to gambling, violence, massacre, terrorism, or criminal content
• libel which infringes upon the legitimate rights of others
• content inciting illegal protests and demonstrations, thus disrupting social order
• content regarding activities held in the name of illegal civilian organizations
• dangerous, threatening, rude, crass, harassing, or fake content, or content violating the privacy of others
• content declared illegal by “other legal regulations”

The Wildcards

Gone through that long list above? Good. It seems like it makes sense — except for one big problem: the whole thing is too generalized.

The failure for those legalists lies in that none of the content is given a clear border — paranoid people are left to the conclusion that just about anything negative or critical is firewall fodder. Don’t like the font they use in the Subway? Don’t post it! They’ll probably use a random article and — get to you!

Actually — no. For stuff as minute as choosing the wrong signpost font, you probably wouldn’t exactly get the punishment you feared. The vagueness is there because those in charge need a bit of leverage — to strike hard on those really bad content.

Suffice it to say that if someone leaked some war project, insulted a massive number of ethnic minorities, and starts an online casino big-time, then the powers that be will take the guy to task. If it’s big, they’ll squash it — but that’s because it’s the Law that makes them do the squashing.

The Randomness of Law Enforcement

Some media outlet in the West once said: “China has laws, but the only ones that apply to you are the ones you’re told by the policeman.” Actually, they got it wrong — there are actually laws restricting illegal moves on the side of the cop — but that’s a topic for another day.

But what’s cannot be denied is that fact that sometimes, law enforcement is random. Offline, people zip down Chang’an Avenue at freeway speeds, with the police doing little to nothing about it. And there you are, on the side road of the ringway, with the police because you crossed over two lanes in one go. Sounds odd, but that’s the way it works these days.

Remember that China as in the PRC is still struggling to come to terms with the presence of the law — if we go back thousands of years. Laws as in a constitutional form that we know in the Western world were totally alien to China until the start of the 20th Century. When the Republicans moved in back in 1911, they only got China’s constitutional process started; the ROC Constitution of 1947 was China’s first-ever permanent, real Constitution. When Mao claimed the mainland in 1949, there was only a temporary constitutional document that was less than 100 articles in length. The present-day Constitution dates back to 1982only.

It’ll take China quite a bit of time, legally speaking, to get Swiss or American. The Chinese are only starting to come to terms with the fact that there is this thing called “the Law”, especially if we look back in terms of the history of the whole nation in millennia past. Growing pains, really. The pains, though, will subside. The Chinese will learn to live with the Law by their side.

Are You Likely To Be Caught?

So here’s the question: Are you likely to be caught — because it was something that you posted on the Chinese Internet?

It depends. The consensus is, as long as you stay out of politics and religion, you should be good to go. If your blog is on technology, travel, photography, speedboating, or any another non-polit topic, you’re safe as houses. Be forewarned, though: the moment you turn your blog into a political arena clamoring for more democracy, if you’re drawing too many visitors, you might draw in the extra visitor from The State — and risk being invisible to 1.3 billion (well, OK, 200 million and counting).

This has an example, by the way. Some time ago, a teenager got mad and started posting anti-government and anti-Party comments in Chinese on a local forum. The net cops were on the assignment almost immediately; the offender was caught and received punishment. The guy responsible obviously took it too far and admitted he did wrong, and that he regretted the wrongdoing. This very case, by the way, was reported in the mainland media.

If you do porn, though, you’re more than likely to be caught. The only thing that would risk graver trouble would be “wrong” political content. Go against The Powers That Be, and you wish you never did. They might even follow what you’re after — not good.

Next In Line: Spam and Piracy

When the Chinese Internet is relatively devoid of political and pornographic content that looks “wrong”, the next two bits of the Net likely to be hard hit are spam and piracy.

China is actually, incredibly enough, spamming less and less. All that spam, however, is still quite a problem. For one thing, it feeds on your time — even if that’s measured out in seconds. For another, it’s outright irritating.

Unfortunately, even those that post porn and politics have switched over to spamming. These emails don’t pop in every single day, but they are popping up with an increasing — and at that, an alarming — rate. For yours truly, spam in any form, polit, porn or other, is instantly nixed.

Finally, there’s another bit of the Chinese Internet that needs to be solved: piracy. The problem is that Chinese law currently allow people to use software for free for “analysis and educational” purposes. Countless people get through the legal loophole — so it’s more a case of sealing the loophole first before downing the pirated software.

When all the cleaning is done, the Chinese Internet will have been one of the safest and cleanest ones around. Theoretically. Realistically, it’s probably just as bad as the average Net elsewhere — people are already finding ways around the cracks in the form of borderline content.

Was that a text ad for My First Night With My Husband that just rolled by? Does that not have a “yellow” (aka porno) connotation? And what about those outright disgusting image ads on some mainland tech sites — the one showing the just-too-private parts of someone?

Make no mistake: I hate porn and piracy, and I give the thumbs up if they want to dump the Net of the filthy duo. But there will always be those battling The Powers That Be through just about every form you can imagine — or can’t imagine. There’s that famous Chinese proverb again: The monster is always a step higher than those with moral values.

Nobody said that this was going to be a quick-’n’-easy battle.

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