By David Bandurski — A quick review of media related news over the last several months might be enough to convince anyone that China’s press environment is a lawless Wild East where journalists hold up the bank and the sheriff rides roughshod over everyone. We’ve had poisonous PR propaganda, the suspension of a muckraking newspaper and cash payoffs of scores of journalists. [Frontpage image by Joe Gratz available at Flickr.com under Creative Commons license.]
But is the appropriate answer to all of this chaos more lawmaking on the media front?
The debate over a press law in China goes back at least to the 1980s, when liberal proponents, notably CMP fellow Sun Xupei, pushed unsuccessfully against party hard-liners like Hu Qiaomu (胡乔木) for a law to safeguard freedom of speech.
Sun Xupei continues to maintain that a press law must play a crucial role in advancing press freedom in China. Others worry that under the current climate any press law would necessarily become a “terrible law,” or efa (恶法), that would serve only to restrict press freedom and give added legitimacy to state press controls.
CMP’s recently released book of essays on media issues in China includes an article by legal scholar Wei Yongzheng (魏永征), who argues that the core problems affecting media in China are not legal in nature, but rather boil down to the nature of CCP rule (共产党的党性原则).
This is a complicated question, and if you don’t know where to stake your position, you might hedge your bets by affirming that both sides have their reasons. They certainly do.
But what if — and there is a third position emerging here — we recognize the distinct possibility that a Chinese press law could in various ways become a “terrible law,” or at least a very imperfect law, and yet we affirm that by applying it to press activities we can bring the practice of media control out of the shadows of the propaganda department and into the dim light of Chinese law?
Is it possible, in other words, that a terrible press law in China is preferable to vast and secretive propaganda system? Perhaps China’s media can absorb the hits from a press law and work actively and openly for fairness while effectively neutralizing (over time) its nastiest enemy, the Central Propaganda Department, whose role and purpose might be diminished.
Is a bad law better than no law at all?
Looking at the mini storm of debate over a Chinese press law that has brewed in the editorial pages over the last few days, one has to wonder whether some journalists and scholars aren’t beginning to think very strategically about this, scrapping pie-in-the-sky idealism on speech freedoms for a dirty but possibly important compromise.
The whole thing began with a November 3 editorial in the “Theory” section of the official People’s Daily.
The editorial, attributed to one “Hua Qing” (华清) argued for the “scientific” and “legal” management of the media sector in China in order, as the headline says, to “raise the capacity for public opinion guidance.”

[ABOVE: Article on improving “public opinion guidance” appears on page seven of People’s Daily, November 3, 2008.]

One of the key passages in the People’s Daily editorial said:

Our country is now at a crucial stage of development, with new problems and circumstances emerging constantly, and this state of affairs places new and higher expectations on the building of rule of law in the press sector. [We] must accelerate legislation in the press sector, continuing to optimize laws and regulations relating to press work, in order to provide a legal guarantee for effective press work and for the improvement of public opinion guidance capacity.

Here was a call in the country’s top party newspaper for China to move toward the creation of a press law.
But the People’s Daily piece was shot through with the language of media control, a clear suggestion this was not a call for the kind of press law Sun Xupei and others had championed in the 1980s.
The whole purpose and context of the call in People’s Daily was the improvement of public opinion guidance, a clear reference to what remains the guiding principle of media control in China. But the editorial also reiterated Hu’s encouraging, if so far empty, language at the 17th Party Congress about the need to “ensure the people’s right to know, participate, express and monitor.”
Re-iterating the call of the earlier People’s Daily editorial, the commercial Wuhan Evening Post (武汉晨报) reported yesterday in an article called, “Voices Urge Acceleration of a Press Law,” that:

In the discussion forum [of Hubei journalists, presided over by the deputy head of the provincial propaganda department Li Yizhang (李以章)] a number of viewpoints stood out. For example, that in ’30 years of media under reform and opening, the first 10 years were marked by media reform and no media industry, and the second 20 years were marked by a media industry and no media reform,’ or that ‘the social role of some journalists has shifted from propagandist to whore’, etc. In several panel discussions, a number of delegates urged the creation of a press law to protect the rights and interests of journalists (记者权益) and at the same time improve positive propaganda (正面宣传) and launch a war on vulgar and sensationalistic news (低俗新闻).

Here again was the schizophrenic rhetoric of control and rights. The above-mentioned “delegates” seem to have no problem talking in a single breath about two seemingly distinct and conflicting priorities, protecting the “rights and interests” of journalists on the one hand, and improving “positive propaganda” on the other.
Back on November 7, well-known essayist and CMP fellow Yan Lieshan (鄢烈山) responded to the People’s Daily editorial with a piece called, “Legal Management [of the Media] Need Not Wait for a Press Law.”
Yan opposed the idea of a press law, and he echoed statements made by Liu Binjie (柳斌杰), the head of the General Administration of Press and Publications (GAPP).

I concur with the basic point of the People’s Daily editorial, that “only by believing in the people, relying on the people, and releasing information in a timely, accurate and comprehensive manner can we set the people’s minds at ease . . . and continually raise the credibility of the government and the news media,” and that “for strengthening management of the media [we] must carry out scientific management, management by rule of law and effective management.” But I think the issue of whether or not this can or cannot be accomplished has precious little to do with the issue of whether or not we have a specific law dealing with the media sector.
Concerning the issue of a press law, I agree with what Liu Binjie, the head of the General Administration of Press and Publications (GAPP) said on July 3 this year when he was a guest at People’s Daily Online’s Strong Nation Forum (强国论坛). When asked why China had no press law, he responded by saying that many countries in the world do not have press laws. The United States does not have a press law [he pointed out], and because they believe that a press law can only serve to interfere in certain aspects of free speech, they have not permitted such laws. He said there were many difficulties in creating a press law, and that it was difficult to know how to approach such a law. There are presently three conditions fueling calls for the creation of a press law. Some people are calling for a press law that would limit the freedoms of news workers. They don’t want you to let things get out, to interview or monitor. They hope there can be some kind of law to control news workers. Clearly, this is irrelevant. Others call for the creation of a press law to protect citizens’ freedom of speech, but this [freedom] is already guaranteed in the constitution, and there is no need to make further laws on this. There are others who want a press law to protect the interest of those concerned, particularly those who are impacted or influenced by news events, and this emphasizes [tighter] control of news organizations, which does not work to the advantage of the strengthening of supervision by public opinion (舆论监督) [or “watchdog journalism”] . . .

Yan goes on to argue that the essential problem facing media in China — the problem that underpins poor protection of journalists, press censorship, bad ethics, you name it — is abuse of official power.

In sum, I believe that if power itself ceases to be above the law, then the laws as they presently stand are sufficient to protect news and watchdog journalism (舆论监督) . . . At present, watchdog journalism bears far too much hope on its shoulders, so that even half-illiterate peasants know that the most effective way [of seeking justice] is to get the media to tell your story, and they see the journalist as an Old Man Justice (青天) who can speak on their behalf. This is too unnatural, really too unnatural.

Insofar as he roots the media’s problems in official power, Yan Lieshan’s arguments resemble those of Wei Yongzheng.
The countering arguments followed quickly on the heels of Yan’s editorial.
The next day’s issue of Southern Metropolis Daily carried two editorials in support of a press law. The first, from Fan Dazhong (范大中), said it was fallacious to look at the example of the United States:

The United States prevents the creation of laws on the press because they have pushed the boundaries of speech freedom as far as they can possibly be pushed, so that no speech whatsoever can incur guilt. Even if we expand our idealism we cannot possibly count on the realization of freedom such as that, so we must reach a pragmatic compromise, seeking a freedom within limitations. The [language in our] constitution cannot protect those who are pursued by the law because of things they said online, those who are accused of slandering others in SMS messages, or those reporters who are “sought in the capital” [by police] because of reports they wrote . . . This being the case, can we really say that the laws as they now stand are sufficient, that we don’t need a press law?

A second editorial came from Zhan Jiang (展江), a former CMP fellow and director of the journalism school at China Youth University for Political Sciences (中国青年政治学院).
Zhan, a liberal scholar with a strong knowledge of international press traditions, was positive about the People’s Daily editorial, its reference to public opinion guidance notwithstanding. He said that this was the “first time in nearly 20 years” that there had been a discussion (in official circles) about rule of law in the media.
He concluded that a “social consensus” seemed to be emerging in China about a press law.
In fact, Zhan seems to twist the party notion of “strengthening guidance,” which is ultimately the business of the propaganda department, into his own concept of better professionalism in the news media to address issues like those apparent in the recent “gag fee” case.
This raises again the question of whether current proponents of a press law, like Zhan Jiang, are hoping for a middle path between the more idealistic law sought by Sun Xupei and others in the political reform climate of the 1980s and more skeptical (realistic?) voices like that of Yan Lieshan who return the question of progress on media freedoms to the immediately insoluble issue of party power.
A nearly complete translation of Zhan Jiang’s editorial follows:

“A consensus is emerging on a Chinese press law“
China has made major accomplishments in the area of law since economic reforms began 30 years ago, but rule of law in the press sector, so crucial to the development of democratic politics, remains a gaping blank spot. Today, as governance according to rule of law has already become national policy, and as the speed to lawmaking has intensified, one sector has remained entirely outside the law, and that is the news and broadcasting sector, which has no specific law on which to rely. This has to a definite degree encumbered social progress and the image of China internationally. I have written many times in recent years to promote national lawmakers to give priority to this issue, and to put the creation of a press law on the five-year agenda (2008-2013) of the National People’s Congress. While the voices [in support of this move] are not exactly vibrant, the idea has lately seen some positive response.
On November 3, [the official] People’s Daily published an article called “Raising Our Capacity for Public Opinion Guidance,” which for the first time in nearly 20 years said that there is a need to “accelerate the building of rule of law in press work, working to realize management [of the press] in accordance with rule of law.” “Our country is now at a crucial stage of development, with new problems and circumstances emerging constantly, and this state of affairs places new and higher expectations on the building of rule of law in the press sector,” the article said. “[We] must accelerate legislation in the press sector, continuing to optimize laws and regulations relating to press work, in order to provide a legal guarantee for effective press work and for the improvement of public opinion guidance capacity.” The article drew a strong response from media both in China and abroad, all of whom believed this was a clear indication that China would put a press law on the agenda. I believe a consensus about a press law is emerging in society . . .
There is a great deal of wrangling in both media or political circles about whether or not a law should be made particularly for the press. Back in the 1980s, a Press Law was placed on the legislative agenda, but it was later scrapped as it faced opposition . . .
In academia, meanwhile, a press law is not regarded as a goal that can realistically be achieved in the near term. And within the journalism profession itself, few have paid attention to the question of a press law at all in recent years. Less than a year ago, I publicly debated the question of a press law with a colleague of mine who is a law professor. When he remarked, “Ah, so here is another Don Quixote!”, there were titters in the audience. This widely recognized legal mind was not without reasons for his views — if a press law was to be promulgated without the proper social consensus, it is very conceivable that it would do harm to the protection of the rights of the media and in fact place greater limitations on freedom of speech.
But when you research the international experience [in this area] you find that the press and the mass media are sometimes now referred to as “social radar” (社会雷达), with the recognition that they are an effective and lost-cost means of scanning the terrain, checking various forms of abuse of power and aiding progress toward good social governance.
In any modern nation under rule of law — whether it is civil law (continental law) or [Anglo-American] common law — rule of law in the press is a matter of consequence. In England and other nations under common law, freedom of speech is guaranteed and protected according to mores and traditions, and while actual practice matters like war or anti-terrorism might pose challenges [to speech] it is a [social] resource that has shown [its value] over the long term.
Nations under the continental law system of Europe generally set down press or media laws (or broadcasting laws). The oldest legislation in history is the Free Press Statute passed by Sweden in 1766. Aside from constitutional guarantees of speech and of the press, France, Sweden, Germany and Russia all have various freedom of speech laws (新闻自由法), press laws (新闻法) or mass media laws (大众传媒法). France’s “Freedom of Speech Law” (新闻自由法) has been translated into Chinese, coming in at more than 10,000 words, and the rights and responsibilities of news media, principally newspapers and periodicals, are spelled out in great detail. In Sweden, the Free Press Statute is a part of constitutional law, and from this we can see the high position given to press law in the continental legal tradition. While Germany does not have a federal law on the press, each of its states has introduced its own press law. At the core of press law in Russia is its mass media law (大众传媒法) of 1991.
Let us look now at China’s progress in rule of law in recent years. The Law of the People’s Republic of China on Emergency Responses (突发事件应对法) that took effect in November 2007 stipulates that the government and government offices at various levels release information about emergency situations promptly, accurately, objectively and in a unified manner (及时、准确、客观、统一地发布有关突发事件的新闻信息), and that responsibility will be sought for cases of slow reporting, cover-ups, or the issuing of false reports. The Government Information Disclosure Ordinance (政府信息公开条例) of May 1, 2008, enshrined the new presumption of information openness as a rule and non-disclosure as the exception, and it defined the boundaries between government news release and news reports by the media.
While strictly speaking the above documents belong to the category of administrative regulations, we can see that in practical terms they are changing the secrecy of administrative decision making and the mystery of public affairs. This does more than just improve the image of the central government. Whether for major stories like the Sichuan earthquake or for small stories like a local traffic accident, if public information is opened up in this way, far from creating discord, this will lead popular opinion [toward more normal views and expressions] and do away with the environment in which rumor and speculation thrive. The international community will also look on this favorably. The opposite approach will have exactly the opposite effect.
But administrative measures do not amount to a press law . . .
Looking a the present state of affairs in China, it is most regrettable that apart from the ineffectual Article 35 of the constitution, there is no law directly protecting the media. Where media control is concerned, local officials can suppress speech and avoid press scrutiny (舆论监督) in the name of “positive propaganda” and turn the press into an instrument of self praise. Look, for example, at the Shanxi slave case of 2007, which would never have seen the light of day had it not been for media outside the province.
What’s more, China’s vast media industry is a gumbo of good and bad, and in recent years many media have sought to use their status as a social utility (社会公器) [or a function of government power] to rent-seek (寻租) [or extort cash or advertising contracts from companies, individuals or government officials]. The “cardboard bun hoax” of 2007 and the recent “gag fee” incident are two cases in point, clearly pointing to the fact that media also need to be checked by the law lest they go the same road of corruption we see with unchecked power. The respect of such citizens’ rights as reputation, privacy, copyright (著作权) and representation (肖像权) would also fall under the purview of a future press law. As for ethical bare minimums, a press law would be able to protect freedom of speech and at the same time limit the abuse of the right to interview (采访权), the right to report (报道权) and the right to comment (评论权).
Just as the People’s Daily article said: “Our country is now at a crucial stage of development, with new problems and circumstances emerging constantly, and this state of affairs places new and higher expectations on the building of rule of law in the press sector. [We] must accelerate legislation in the press sector, continuing to optimize laws and regulations relating to press work, in order to provide a legal guarantee for effective press work and for the improvement of public opinion guidance capacity.”
If from this point on [China] works to draft and implement a Press Law, using this as a basis on which to bring about the promises contained in relevant portions of both the constitution [Chapter II, Article 35: 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 the United Nations International Covenant on Civil and Political Rights (UNCCPR) [Article 19: Everyone shall have the right to hold opinions without interference. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: For respect of the rights or reputations of others; For the protection of national security or of public order (ordre public), or of public health or morals.] then this will benefit the promotion of progress in press work and democratic politics, it will truly preserve the right of the people to know, participate, express and supervise that was promoted at the 17th Party Congress [last year], and it will break the bonds that have for so long held captive China’s international image and soft power.

[Posted by David Bandurski, November 11, 2008, 8:35am HK]