Legal Daily Offers Three Scholars' Perspectives on Regulation of the Internet Versus the Right to Privacy

September 15, 2004

On September 9 the Legal Daily published an article carrying some impressions Chinese scholars have regarding regulation of the Internet and the right to privacy. The facts underlying the discussion center on a case wherein two people were arrested in Sichuan in August, 2004 for viewing pornographic websites in their homes.

According to the Legal Daily article, Chinese Academy of Social Sciences researcher Mo Jihong believes that rights can be divided into two categories:

  • "Basic Rights", which are rights set forth in the Constitution and which can be used to oppose the authority of the State, and which administrative organs do not have the authority to restrict through laws and regulations.
  • "Civil Rights," which are rights that cannot be used to oppose the authority of the State.

According to the Legal Daily, Researcher Mo believes that "the evaluation mechanisms and evaluation standards for rights in China are currently rather confused, and some restrictions on rights are unreasonable." Researcher Mo concedes that citizens looking at pornographic web pages in their home is the citizens' private affair, and that the right to privacy is an extension of the right to personal dignity [ren ge], but he believes that this right is a civil right, not a basic right, and therefore cannot oppose the authority of the State.

Researcher Mo's analysis on this point is difficult to understand, because Article 38 of China's Constitution specifically provides that "the personal dignity [ren ge] of citizens of the People's Republic of China is inviolable.

According to the article, Researcher Mo says:

Only those citizens' rights which are legal will receive protection of the law, and China's relevant laws and regulations regarding obscenity and pornography are strictly formulated, and public security organs have also made regulations regarding looking pornography, and therefore these rights of citizens do not receive protection from the perspective of China's current law.

However, the article also states that Researcher Mo also believes that this kind of regulation is unreasonable, and that law enforcement should focus on stopping the production and distribution of obscene and pornographic information, and not on arresting people for viewing pornography because to do so "is clearly unreasonable and violates the concept of protecting rights."

According to the Legal Daily, another scholar, Beijing University Law School professor Wang Lei, tends to view citizens viewing information on the Internet as implicating freedom of expression. Article 35 of China's Constitution specifies that citizens of the People's Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration, and only the National People's Congress has the authority to restrict rights and freedoms set forth in the Constitution. Professor Wang suspects that regulations, such as the Ministry of Public Security's "Measures on the Administration of Safeguarding the Safety of Internationally Networked Computer Information Networks," (Article 5 of which states that "No unit or individual may utilize the Internet to produce, copy, look up or transmit any of the following categories of information: . . . (vi) propagating feudal superstitions, obscenity, pornography, gambling, violence, murder, terror or abetting the commission of a crime"), violate the Constitution, and he believes that the State Council and the Ministry of Public Security should rescind these laws. (more examples of this kind of regulation are available on the Commission's Virtual Academy.

Professor Wang emphasized that the purpose of attacking pornographic websites is to protect public order, but that when order and citizens' freedom conflict, citizens' freedom should win out.

The article also presents the perspective of Beijing University Law School professor Jiang Mingan, who believes that the two Internet users did not violate the law as long as all they did was view pornography. Professor Jiang goes on to question, however, whether they should be subject to punishment even if their behavior is judged to have violated the law, and suggest that they should merely be subject to a warning.

The article concludes by saying that how the case will be decided hinges on how the court decides to categorize a law like the "Measures on the Administration of Safeguarding the Safety of Internationally Networked Computer Information Networks." Professor Jiang believes that this law is a "departmental regulation" because, although it was approved by the State Council, it does not conform to the legislation procedures that require administrative laws to be passed by the Standing Committee of the State Council. According to the Legal Daily, if the Measures are merely a departmental regulation, then the court can refer to them, but need not consider them binding in adjudicating the case. Furthermore, the article states the court may also decide whether the Measures themselves are legal and reasonable in light of higher level laws, and if it decides they are not, the court may disregard the higher level laws completely.

The Legal Daily article goes on to say that if, on the other hand, the court deems the Measures to be administrative regulations, then the court will not have the authority to pass judgment on their constitutionality, and must rely on them to adjudicate the case. If the court believes that an adminstrative regulation is unreasonable its only recourse is to advise the agency that formulated it to revise, abolish, or rescind it. If it believes that an administrative regulation conflicts with a higher level law, is ultra vires, was instituted using illegal procedures, and conflicts with legal principles, the court's only recourse is to raise the issues with the Supreme People's Court, which can then suggest to the Standing Committee of the National People's Congress that it examine the regulation.