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George Washington University Law School

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Wednesday, May 8, 2013

Supreme People's Court directive to lower courts on cases involving internet censorship

4bdb1fa0jw1e4cnlm22vcj20c81gidl8 (2)Here's a great translation and commentary from the Siweiluozi blog regarding a 2009 Supreme People's Court directive to lower courts on "internet management" (i.e., censorship). In a typical case, a user posts something on the internet, perhaps on a blog or weibo account. The authorities, finding it distasteful, instruct the host to delete it. The host duly deletes it. The user then sues the host for violating the terms of the service contract. Because the censorship instructions to the host have a flimsy legal status - they are probably an oral order from a Party, not state, body delivered over the phone - mounting a defense is difficult and embarrassing.

To the rescue rides the SPC, which instructs courts simply not to accept this kind of case. That way, the flimsy legality of the censorship regime is not exposed.

As Siweiluozi points out, this merely highlights the nature of the courts as administrative and not really judicial bodies. They have precisely as much independence as the Party-state allows them for the sake of convenience, but when a political decision is made to use (or avoid the use of) the law in a certain way, they must fall into line. This instruction from the SPC requires courts to act contrary to statutory law, which already sets forth conditions under which courts should and should not accept lawsuits for hearing. None of the considerations in the SPC's directive can be found in the statute. Indeed, the SPC acknowledges the flimsy legal status of its own directive, by making it secret and prohibiting public comment.

http://lawprofessors.typepad.com/china_law_prof_blog/2013/05/supreme-peoples-court-directive-to-lower-courts-on-cases-involving-internet-censorship.html

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The SPC's classified, non-public directive indeed reveals how PRC courts tend to be more administrative than judicial in nature. Administrative fiat routinely takes precedence over legal statute. In the Party's imperium over the state at all levels, this is the sort of lawless adjudication one gets as a result.

Posted by: Phil | May 15, 2013 8:50:25 AM

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