Friday, May 10, 2013
Thursday, May 9, 2013
Here's a story that goes straight to the ridiculous without passing the sublime. Self-styled direct descendant of Confucius, Peking University professor (shame on you, PKU!), and all-around blowhard Kong Qingdong (孔庆东) was ordered on Wednesday by the Haidian Basic-Level People's Court to apologize and pay 200 yuan to Guan Kaiyuan, a 22-year-old law student at the China Institute of Industrial Relations. After Guan had criticized a poem by Kong as not following proper composition rules, Kong responded on Sina Weibo (Chinese Twitter), "You haven't even read the poem, you dog and traitor," and added some salty references to Guan's mother.
Guan, who is obviously one of those Chinese people we keep hearing about from the government whose delicate feelings are easily hurt, sued. It's not clear from news reports what the exact claim was - presumably defamation. Anyway, Guan still isn't satisfied - he wants Kong to be required to apologize on his Weibo account, not just in some national newspaper.
While one hates to be in the position of defending someone like Kong, this is ridiculous. Guan posted his critique, and received the insult, under a pseudonym. In other words, even if we decided that ordinary insults like "dog" and "traitor" should be actionable as defamation - something that would already severely crimp ordinary speech - in this case nobody knew the insult was directed against Guan until he outed himself. Do the courts really want to overload themselves with cases from every anonymous troll who managed to provoke a rude response?
Some relevant references:
- South China Morning Post report
- Shanghaiist report
- Beijing News report (in Chinese)
- Language Log post showing that everyone in China and probably many outside are descended from Confucius, too
Wednesday, May 8, 2013
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.