China’s new censorship rules: text messaging and freedom of speech

by M. Ulric Killion 

China’s polity amidst the controversy of Google and the censorship of porn and political content now appears to be seriously targeting the censorship of text messages. On January 19, 2009, China Daily news, in an article by Li Xinzhu (Shanghai) and Cui Xiaohuo (Beijing) and titled Text message service cut off for ‘bad’ words, reported, 

“Cell phone users in Beijing and Shanghai will not be able to send text messages if they are found to have sent “illegal or unhealthy” content. China Mobile’s Shanghai branch yesterday said offenders will be suspended from using their text messaging service, but it denied earlier media reports that the phone numbers of the offenders would be revoked. A customer service woman of China Mobile’s Shanghai branch reached by China Daily yesterday said the suspension would only occur when the operator's system has automatically detected that the user has sent, or is sending, “a large amount” of illegal information; or if the operator receives complaints from other users. China Mobile’s Beijing branch also said they will take similar action. Users can call 10086 or send messages to 10086999 to report unhealthy messages, local media Mirror Evening News reported yesterday. China Telecom and China Unicom, two other major mobile operators in China, also claimed that they will follow the action, the report said. China Union’s Beijing branch said it has set up a special team to carry out the campaign. If the message is rated by the system as “suspicious”, an officer will personally read it to decide whether the message is “unhealthy” or not. China Mobile said on its website that the automatic rating is based on “key words” provided by police. And the standard for determining whether a message is unhealthy or not is based on 13 criteria handed down by nine central government departments. No details of the criteria were given. When a suspected unhealthy message is detected, China Mobile will temporarily suspend the message function of the user and wait for the evaluation from police authorities, it said. If the police confirm the message contains unhealthy content, the user’s phone number will be temporarily banned from sending messages. If the police say the message is fine, it will issue a certificate to the user to seek resumption of service, the statement said. . . .”

As for the new action or rule by China Mobile, China Telecom and China Unicom, it hardly comes as a surprise that the new action or rule is engendering debate among mobile phone users, including legal professionals. As one lawyer observed, and quoting China Daily news, “How to clearly define the unhealthy content in the messages? Are there any details, such as how many obscene text messages I have to send to be suspended?" said Ju Yi, a lawyer of Shanghai Hui Gu law firm” (China Daily, 2009). 

The China Daily news agency also did not clearly specify the source of the new action or rule. This leaves the potential source of the new rule as being statutory law, an administrative regulation, perhaps a mere suggestion by party officials, and even self-censorship on the part of China Mobile, China Telecom and China Unicom. As for only targeting text messaging in the cities of Shanghai and Beijing, it is reasonable to assume that these cities will serve as a test case of the new action or rule because those promulgating the new rule recognize the difficulties of administering the censorship or even self-censorship. 

Ju Yi rightly perceived that the new action might be unreasonable, though he recognized that the intention is good (China Daily, 2010). From the perspective of western law, the distinction between reasonable and unreasonable routinely draws the line between the more legal concepts of fundamental fairness and unfairness (i.e., the due process of law), which  are concepts that generally address the scope of law via state action. 

As previously mentioned, the China Daily news article fails to clearly state the critical source of the new action or rule. For this reason, if China Mobile, China Telecom and China Unicom intend to act pursuant to China law on censorship, then the issue is couchable in terms of a due process of law issue. Otherwise, the actions of China Mobile, China Telecom and China Unicom are no more than private actions rather than governmental (state) actions, which admittedly is a stretch of the imagination. This is because it is difficult to fathom that the new action or rule is unrelated to the controversy of Google and censorship, especially in light of the Jan. 18 editorials appearing in the Xinhua news and the China Daily news (See e.g., China Daily Sharpens Tone on Google, posted Jan. 18, 2010). This is also true because of the multiple criterion for judging what the “bad words” are.

 

In an earlier comment to The Trial of Liu Xiaobo - Joint Statement by CECC Chairman Byron Dorgan and Cochairman Sander Levin (posted Jan. 11, 2010), when discussing the trial of Liu Xiaobo, the analysis focused on the problem of Chinese-law making appearing to evidence a proclivity to generalize what the law is (i.e., the over-broadness of law). When assessing the Liu Xiaobo case, the comment focused on issues neither of Liu’s guilt, nor on whether he received a fair trial. Rather, the comment focused on the problem of statutory language (i.e., the subversion law) suffering from overgeneralizations and over-broadness (i.e., the over-broadness of law). As earlier mentioned, “As any trained lawyer will attest, the more overgeneralized and over-broadness of the criminal law, the more easily to obtain a conviction”. 

This bring us to the reasonable/unreasonable dichotomy or, perhaps more accurately, the fairness/unfairness dichotomy. In illustration of the latter dichotomy, the difference between China’s legal system and the US legal system, especially judicial review, employs. Quoting the earlier comment,

“A difference between the China and US judicial model, however, is the US model of judicial review. This is because the US judicial model allows an overgeneralized or over-broad law to be stricken as unconstitutional by a court of law. Lying at the core of this sort of judicial review is the idea that an overgeneralized or over-broad law does not, in the sense of fairness (i.e., due process of law), provide sufficient notice of what the law is. Under China’s judicial model, the courts do not enjoy similar powers. This is because the powers of judicial review vest only with the NPC. . . .”

The point being that if the new action (or rule) by China Mobile, China Telecom and China Unicom characterizes state action then the issue of reasonableness becomes a legal issue of fundamental fairness (i.e., the due process of law). The problem is obvious. Assuming arguendo the new action is state action, then mobile users using text messaging are left in a predicament of uncertainty about what words are, and quoting from the title of the China Daily news article, the “bad words”. In other words, an overgeneralized or over-broad law does not say what the law is. 

Moreover, as reported by China Daily news, the language of the new rule is born of subjectivity. This is because the criterion for judging what the “bad words” are presents the same symptomatic problems of overgeneralization and over-broadness. For instance, what are actually various rules, rather than a rule in the singular sense, for determining what the “bad words” are widely range from: “illegal or unhealthy” content, an automatic rating based on “key words” provided by the police, and a standard for determining whether a message is unhealthy or not that is based on 13 criteria handed down by nine central government departments, though no details of the criteria were given. A variety of rules or multiple criterion for determining what the “bad words” are, in conjunction with a failure to inform citizens of the details of the criterion, is inevitably a failure to say what the law is. 

Then again, though a difficult to fathom scenario, as earlier mentioned the new action (or rule) by China Mobile, China Telecom and China Unicom might constitute private actions rather than state action. The difficulty of characterizing the action of China Mobile, China Telecom and China Unicom as private action is an automatic rating system of the police and nine central government departments promulgating a list of 13 criteria, though failing to announce the details of their multiple criterion for judging what the “bad words” are.

 

For now, even the article by China Daily news seems replete with vagueness or overgeneralizations. All of this, ultimately, presents a seemingly needless controversy in the midst of the Google and censorship controversy, while also presenting China’s polity as arguably appearing to make a statement about censorship that is difficult to follow, notwithstanding China’s polity implicitly announcing to the world that censorship of speech (i.e., freedom of speech) is here to stay.

Copyright © Protected - All Rights Reserved M. Ulric Killion, 2010.