Introduction to China Internet Information Supervision System

By You Yunting

According to Progress in China’s Human Rights issued by the Information Office of State Council PRC, the speech freedom of Chinese netizens is protected by law and they could express their opinions in whatever the way they choose. By the end of 2009, China has more than 384 million netizens and the popularity of Internet has been more than 28.9% which are both above the average standard in the world. Moreover, the website established in China has been more than 3.23 million, BBS of more than 1 million and the blog user of more than 220 million. By the sampled statistics, the information sent by local people each day through BBS, news comment or blog are more than 3 million and 66% more netizens will comment on the Internet, participate in the topic discussion, express their opinions or make appeal for their interests.

In May of 2012, the State Council of USA issued Country Reports on Human Rights Practices for 2011, which says

“Authorities increased attempts to limit freedom of speech and to control the press, the Internet, and Internet access.”

Basing on the above regulations, we will make the introduction to the current situation and existing laws and regulations concerning the Internet information supervision

Part I the administrative authorities

The Information Office of State Council:

Approval on entry to Internet Information Service Market; administration on market order, network resources; administration and supervision on the security of the Internet information

The Ministry of Industry and Information Technology:

Administration on Internet industry; approval on entry to Internet Information Service Market; administration on market order, network resources; administration and supervision on the security of the Internet information

The Ministry of Public Security:

Supervision and administration on Internet information content

The State Administration of Radio, Film and Television:

Online film and television

The Ministry of Culture: online music and game

The General Administration of Press and Publication:

Online press and publication

The State Food and Drug Administration:

Online drug information service

The Ministry of Health:

Online medical and health information

The Ministry of Education:

Online education

The National Administration of Surveying, Mapping and Geoinformation:

Online map service

Chinese Academy of Sciences: domain name

The affiliated institution China Internet Network Information Center takes the actual management.

The Internet Society of China:

Quasi-official association, non-profit organization consisted by Internet companies.

Part II Introduction to information control and filtering of China Internet

A. Overseas Mandarin website: the visit is forbiden

1. Integrated Chinese news websites: forbidden in principle

BBC, independent media in Taiwan and Hong Kong

2. UGC websites: forbidden in principle

BBS, SNS

3. Economy News: allowed in principle, but blocked when in emergency

WSJ China, FT China, Reuters

4. non-Chinese media: allowed in principle with a few exceptions

China Digital Time

5. Search engine

Block the search for some key words. And the disconnection may happen and last for minutes when searching the sensitive words on Google.

B. Domestic Websites:

1. Domain name and IDC provider: all the domain names and server spaces applied at home shall be recorded with the real name of the applicant; otherwise no DNS could be made or the connection to the space.

2. Websites: self-examination is necessary

Legal ground: Article 10 of SELF-DISCIPLINEAGREEMENT FORCHINA INTERNET INDUSTRY (the link is in Chinese):

“The Internet access service provider shall examine and supervise all the information accessed from the websites at home or overseas, refuse the access to the websites releasing harmful information and eliminate the harmful effect from such websites. ”

When detaining any dissatisfactory information, the government will:

To major websites: warn the operator, shut down some channels of the website when in serious situations, like SINA and 163 Tech were punished stop operation for one day for the report on Tongfang’s bribery in Namibia;

To small websites: demand the service stop of the whole website or even stop the DNS, like Changzhou Hualongxiang and Xiamen Xiaojinyu were both stopped the DNS several months ago.

3. The real-name registration system: the system shall be carried out in all websites according to Management Measures on the Security Protection of Computer Information Network and Internet (the link is in Chinese) issued by the Ministry of Public Security in 1997 and the Management Measures on Internet Information Service (exposure draft).

Article 15 The Internet information service provider for information publication by the users, shall demand the registration by the users with the true ID information.

The Internet access service provider shall record the true ID information, website name and website address of the Internet information service provider.

Part III Legal Problems in China Internet Information Control

I. Legislation vacancy of Chinese citizens’ right to information reception

So far China has promulgated no laws on citizens’ right to receive information, while it’s provided in Article 19 of The Universal Declaration of Human Rights:

“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.”

By Article 18 of Management Measures on the Security Protection of Computer Information Network and Internet issued by the Ministry of Public Security:

“The institution of computer management and supervision in the public security department shall notice the companies involved to make the shut-down or deletion when finding any address, context or server containing the contents in Article 5 of the Measures.”

This regulation make nearly all the overseas mandarin news websites overseas or social network sites unavailable to local netizens in China and the normal Internet connection would be broken rudely.

II. The severe conflict between the standard of unhealthy information and the speech freedom

Article 35 of the Constitution of PRC:

“Citizens of the People s Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration.”

The unhealthy information is defined in the existing Management Measures on Internet Information Service as follows:

Article 15　Internet information service providers may not produce, reproduce, disseminate or broadcast information with content that:

1. opposes the fundamental principles determined in the Constitution;

2. compromises State security, divulges State secrets, subverts State power or damages national unity;

3. harms the dignity or interests of the State;

4. incites ethnic hatred or racial discrimination or damages inter-ethnic unity;

5. sabotages State religious policy or propagates heretical teachings or feudal superstitions;

6. disseminates rumours, disturbs social order or disrupts social stability;

7. propagates obscenity, pornography, gambling, violence, murder or fear or incites the commission of crimes;

8. insults or slanders a third party or infringes upon the lawful rights and interests of a third party; or

9. includes other content prohibited by laws or administrative regulations.

In the exposure draft of the Measures, the following new situations are amended: incite the illegal assembly; transact, manufacture illegal or prohibited articles, or regulated articles; make use of the name of other national authorities, social unions or legal entities;

Such regulations are not specific enough and it is decided by the government in the enforcement. The fact is, despite the sever conflict of the articles in the existing regulations and rules with the Constitution which is a higher rank law, no remedy could be made thereby for no system of Constitution trial is adopted in China.

III. Lack of judicial remedy to the administrative control on information

Currently, the courts in China accept no civil or administrative cases concerning the administrative management on Internet information, and the cases include:

1. Lawsuit against the telecommunication company as the Internet access provider for forbidden to visit overseas websites.

2. Lawsuit against the website operator for the website’s deleting the unhealthy information released by the sites or users.

3. Administrative lawsuit for the dissatisfaction to the administrative punishment on the websites who is judged with unhealthy information.

4. Administrative lawsuit for the dissatisfaction to the specific administrative act demanding the deletion of unhealthy information.

We have searched the copy of Notices on Case Filing Examination concerning the Internet Management (note: the link is in Chinese) issued by the Supreme People’s Court to local courts on 13^th July 2009, by which the cases concerning the Internet management shall refer to those containing the civil and administrative disputes arisen from the Internet management, namely the so called Internet examination.

Civil disputes, mainly refer to disputes arisen from the demands of related departments to cancel the essays, comments or pages made by the plaintiff, or to shut down the plaintiff’s blog, BBS, website. And most lawsuits by the plaintiff are based on the online service contract or for the unilateral deletion or shutdown without the approval or notice to the person him/herself.

Administrative disputes, mainly refer to the plaintiff’s dissatisfaction to administrative punishment or other penalties like the deletion of the article or comment posted on the website or the shut-down of his/her blog or website, etc.

While by China Contract Law, either the relationship between internet user of the telecommunication access provider, or that between the website and the users shall be governed as the service contract and for any dissatisfaction with the information deletion, a lawsuit basing on the breach liability in Contract Law or tort liability in Tort Liability Law may be filed.

Meanwhile, according to the Administrative Procedure Law, both the government’ s demand to delete the information released by the website or the user and the punishment made to the website are the specific administrative act, and the user or website as the counterpart is entitled to file the administrative lawsuit. Obviously, China courts’ reluctance to accept the lawsuit is against the law.

Lawyer Contacts

You Yunting

86-21-52134918

youyunting@debund.com, yytbest@gmail.com

For further information, please contact the lawyer as listed above or through the methods in our CONTACTS.

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