By Stanely Lubman, The Wall Street Journal, China Real Time Report
Stanley Lubman, a long-time specialist on Chinese law, looks at the impact of the upcoming tort liability law on online harassment. Mr. Lubman teaches at the University of California, Berkeley, School of Law and is the author of “Bird in a Cage: Legal Reform in China After Mao,” (Stanford University Press, 1999).
A new legal development in China could have broad implications for domestic internet users – and, more significantly, for meaningful legal reform.
The comprehensive Tort Liability Law that was passed in late December by the China’s National People’s Congress includes a provision that gives citizens the right to sue for infringement of their privacy, which thereby solidifies the legal foundation of that right (Chinese text available here). If the law is applied by the courts without Party interference, it could limit the growing practice of using the internet to harass and vilify people deemed by internet users to have committed criminal or improper acts.
The Law has implications that go beyond the Chinese party-state’s struggle to cope with problems raised by the expanding influence of the internet, and which are very different from the controversies surrounding Google’s possible withdrawal after intrusions of Chinese hackers. By enlarging a relatively new right, the Law suggests the importance of legal reform that meets the changing circumstances of China’s social ferment.
The misuse of the internet to invade privacy has been dramatically illustrated by the rise in recent years of “human flesh search engines.” This awkward appellation, intended to denote searching for human beings, describes the practice of using the internet to single out persons or organizations who have committed acts that “netizens” deem illegal, improper, or for any reason meriting social opprobrium or punishment, and who organize others to harass, shame or bring to justice the targets that have been identified.
Ordinary citizens are increasingly turning to the internet to identify criminals and officials who may have been guilty of corruption or sexual misconduct, and also to publicize private misconduct such as adultery or other non-criminal acts. Such publicity has sometimes caused serious disruptions of the targeted individuals’ lives, including loss of jobs, reported in considerable detail in a 2009 documentary, “Human Flesh Search Engine.”
Journalist Rebecca MacKinnon, interviewed on Public Radio International, suggested that the rise of internet vigilantism reflects both the weakness of China’s courts, which are not a strong force for reinforcing norms of conduct, and the media, which can only report within narrow limits.
Beliefs, ethics and values are in flux in China, and the resulting moral confusion has been dramatized and enhanced by the human flesh search engines.
The growth of the internet’s power has not gone unnoticed by China’s law- makers. Earlier in 2009 China’s Criminal Law was amended to provide for punishment of persons who provide “personal information of citizens” acquired in the course of employment. Now, in the context of adoption of a tort law that replaces very general and incomplete provisions of earlier legislation by defining civil wrongs and their legal consequences, law makers have further addressed the misuse of personal information.
The law (Articles 2 and 6) creates liability for anyone who has infringed on and damaged “civil rights and interests” of others, and includes a generally stated “right of privacy” (not otherwise defined) in a list of protected interests, including the right to reputation. An injured party may also sue an employer whose employees caused the injury in the course of their employment (Art. 34). Also subject to suit are internet service providers that are used to infringe on the “civil rights and interests” of another person, or are aware that users are committing the tort and do not take necessary measures to cease the offending action after being notified of it (Art. 36). (A summary is available here in PDF format.)
Even before the new law appeared, a small number of lawsuits had been brought seeking damages for emotional distress caused by internet-inspired harassment. In one, a Beijing man who had resigned from his job won 10,000 yuan for emotional damages from his former employer after his work unit put up a “wanted” poster that referred to him as a thief and published his home address and identification number.
In another case, a Beijing man brought a lawsuit after his wife committed suicide, allegedly because of her husband’s infidelity. His wife had written blog posts about his behavior, and news of her death provoked vilification, death threats and harassment of his employer, leading to his resignation from his job. He had sought 135,000 yuan for emotional distress; the court decided that his rights of privacy and reputation had been violated, and awarded him 5,000 yuan against a woman who had posted excerpts from the deceased wife’s diary and 3,000 yuan against a Web site which “was also ordered to remove the section of its site that focused on the diary of Wang’s wife and publish an apology.”
The new law will give impetus to more lawsuits that previously lacked clear legal foundation in Chinese legislation. Yet it also raises a question: Might damages awarded by courts be too small to deter netizens from engaging in harassment? After the Beijing case was concluded, a blogger commented that the amount of damages awarded to the plaintiff was so low that, given the profits garnered by websites, the award might encourage rather than deter internet vigilantes.
Also, in cases in which netizens accuse officials of corrupt conduct, will they try to discourage litigation or retaliate? A previous blog post on this Web site asked, “..given the concerns raised over the occasional extremes that human flesh search engines have gone to, is it just a matter of time before officials start demanding more protection from prying netizens?”
In addition, one case suggests that it is not just citizens who can use the internet to point to targets for criticism or worse, but officials who employ similar tactics. A newspaper printed a story by two reporters who wrote about a local construction project in an economically depressed area in Jiangsu Province that had been transformed by local officials from a ”welfare project” into a luxury office building. Among posted criticisms of the reporters that followed, some called for local people to “eliminate” them. A newspaper article suggested that the posts were originated by local officials, “hired guns,” or the construction companies involved in the project.
The protection against privacy violations via the internet could suggest to Chinese courts and legislators other areas in which this legislation could enable private litigants to pursue redress for violation of their rights. Adoption of the new law marks progress in legal reform, and it also strongly signals that the emergence and clash of new social forces arising out of China’s economic development will continue to challenge legislators to craft laws to meet new challenges.