AFP reported today that China has close to 20 million bloggers. Right now, most are anonymous, their real identities protected, and many argue that in China, where speech freedoms are not protected despite a constitutional guarantee of “freedom of expression” (言论自由), this is a basic condition of vitality on the Chinese Internet. A real-name Web registration system reportedly being ironed out at the Internet Society of China in the name of social “responsibility” could change all that.
Yesterday, CMP translated an article from China Youth Daily arguing against China’s proposed real-name Web registration system on the grounds of the practical challenges it posed to protection of personal information as well as infringement of freedom of expression. The day after the China Youth Daily editorial, an argument from the opposite side appeared in the Liberation Daily. Written by Yin Xiaohu (殷啸虎), director of the Center for Politics and Law Research at East China University of Politics and Law, it largely parrots the “responsibility” argument of the pro-registration camp, drumming home the point that the right to freedom of expression is by its very nature conditional.
Like much of the language arguing in favor of a real-name registration system for the Internet, the Liberation Daily editorial sticks principally to theoretical issues and avoids discussion of practical problems, such as who ensures the personal information of Web users is not pilfered under a system of forced registration, and how. De-contextualizing comments on freedom of expression from Oliver Wendell Holmes, Jr. and F.A. Hayek, it attempts to build a theoretical argument for limiting free expression on the Web in China. Once this argument is made, it is more or less taken for granted that the real-name Web registration system is the best tool for the job.
The purported quote from Holmes is used to make the point that even in America the right to expression is not absolute. The quote in Chinese, which CMP has not translated (nor found an appropriate English original) is as follows:
It should be remembered that it was Holmes who created the libertarian test for free speech, saying it should be curtailed only in cases where there was a “clear and present danger” to society: “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” (Schenck v. United States).
We have also from Holmes: “Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command, ‘Congress shall make no law … abridging the freedom of speech.'” (Abrams et al. v United States).
The Liberation Daily editorial follows:
“Does the ‘real-name Web registration system’ contravene the principle of free expression?”
Liberation Daily
December 4, 2006
Yin Xiaohu (殷啸虎), Director of the Center for Politics and Law Research at East China University of Politics and Law
Question from Crystalsmile, a Web user on Dongfang Online: “From online forums requiring real-name registration to Web bars requiring real-name registration to go online, to more recent news that a real-name registration system will be implemented for ‘blogs’ as well, China’s Internet seems to be facing ever greater pressure from real-name registration. The goal of the ‘real-name registration system’ is to supervise and urge self regulation of speech by Web users. But ordinary Web users like us are still a bit worried about whether the so-called ‘real-name registration system’ is necessary and whether it violates the principle of freedom of expression (言论自由)?”
. . . To answer this question we must first be clear about what freedom of expression means. It essentially includes three important factors: first of all, that citizens have the right to use language and other relevant means [of expression] to express their ideas and views; [secondly,] that citizens are free to remain silent in public or specially designated places (特定场合), that is the freedom “not to speak”; [lastly,] that citizens have the duty and the ability to take responsibility for their own language.
In the past when we’ve talked about freedom of expression, we’ve largely laid emphasis on the rights of citizens and overlooked the responsibilities of the citizen in this regard. Actually, freedom doesn’t just mean that a person has choices and bears principle responsibility for these choices, but also means that they must bear responsibility for [the consequences of] the choices they make. The famous social theorist [Friedrick A.] Hayek once said [translated directly from Chinese]: “An age convicted about personal freedoms, is also thoroughly an age that upholds personal responsibility”. [NOTE: Hayek did say that: “Liberty not only means that the individual has both the opportunity and the burden of choice; it also means that he must bear the consequences of his actions and will receive praise or blame for them. Liberty and responsibility are inseparable. A free society will not function or maintain itself unless its members regard it as right that each individual occupy the position that results from his actions and accept it as due to his own action…. “].
… As a fundamental right of citizens, freedom of expression has the special character of not being subject to encroachment. But as we make sure the fundamental rights of citizens are not intruded upon we must also admit the conditionality of these fundamental rights. Marx once said [translated directly from Chinese]: “Freedom is the right to participate in activities that do not do harm to others.” The lines of all actions that do not do harm to others are determined by the law, just as boundaries on the earth are determined by boundary markers.
From the standpoint of constitutional law, this conditionality includes both intrinsic and extrinsic aspects. Intrinsic conditionality refers to restrictions on rights that come as a matter of course with rights themselves, limitations that reside within the rights themselves. The right by its own virtue assumes the limitation that the right cannot be exercised in such a way as to intrude on or do harm to the rights of others – this is the intrinsic conditionality of rights. This is to say, the exercising [of one’s personal] rights, must not constitute an infringement of the privacy, dignity or other freedoms or rights of another. It goes without saying that this is a conditionality that naturally accompanies freedom of expression as a right. Extrinsic conditionality is imposed from the outside, those restrictions allowed according to the objectives of the constitution. Restrictions of this kind are based on both the modern constitution and the notion of public benefit … and can be called the “conditionality of (public) policy”. Therefore, the personal rights of citizens must submit to the good of the country, society and the collective. When citizens exercise their rights and freedoms, they must not do harm to the legal rights of other citizens.
Once we understand what is meant by citizens’ freedom of expression, we discover that it is actually erroneous to regard the real-name Web registration system as a contravention of the principle of freedom of expression.
First of all, freedom of expression is, in and of itself, limited. Freedom of expression must always be accompanied by responsibility. Online posting, discussions and public diaries cannot be exempted [from this rule]. The [current] anonymous system of the Web means avoiding responsibility while exercising one’s rights. Implementing a real-name system, on the other hand, means a more reasonable marriage of the exercise of rights and the assuming of responsibility, and this means better ensuring the exercise of citizens’ freedom of expression. The Internet is a public platform, not a personal space. On this platform anyone can enjoy the public resources provided by the Web and express their own views publicly. But because this is a public platform, [users] must respect public rules and receive monitoring from the public – these are necessary if rights are to be equal. Lastly, the connection between rights and responsibility means that while protecting citizens’ rights we must not intrude upon the good of the nation and society, or the rights of other citizens. The rights and freedoms guaranteed in the [Chinese] constitution are rights and freedoms belonging to all citizens, not the rights and freedoms of any particular person …
Among the reasons for opposing a “real-name Web registration system” one finds a popular view that holds that everyone needs a true self and a virtual self. In the virtual world of the Web, we can say what we please and be ourselves. Perhaps we don’t need the law to regulate the “virtual world”, but the problem is that none of us can be sure that what we are talking about on the Web is purely virtual. It might in fact be exactly the opposite, people online using virtual identities and holding “real” discussions, criticizing actual things or people. In such a situation, using a public regulation to create boundaries for speech behavior on the Web is commensurate with the demands of society and the law.
The Web has provided a platform for citizens to exercise their right to freedom of expression. But it is a public platform, and so naturally it needs a definite public policy to keep it within bounds. As a routine management measure of modern public administration with few side effects, a “real-name Web registration system” is a necessary and reasonable limitation on actual exercise of freedom of expression, and does not violate the principle of freedom of expression …

[Posted by David Bandurski, December 7, 2006, 5:30pm]]

David Bandurski

CMP Director

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