Enforcement – Experience of China

Blog for Seminar “Online Law and Business in a Globalized Economy” – Personal view, not legal opinion. No replication.

To start with, I sent the links to the three Google China related articles to my friends back in China. It comes with no surprise that access to these links is blocked.

Chinese law treats websites hosted within and outside China differently. Websites hosted outside China are unreachable by local enforcement power, but they have to go through the “Great Firewall” (or GFW as Chinese netizens usually call it) before Chinese people can see them. GFW’s long blacklist includes almost all major websites with the possibility of providing politically sensitive information, such as Facebook, Twitter, Youtube, WordPress, Blogspot etc. New websites are added to or removed from the list from time to time. For instance, web access to New York Times was blocked after it revealed the wealth accumulated by the family of China’s former prime minister. Today’s google.com or google.com.hk is not entirely banned by GFW but their access is seriously interfered and highly unstable. People have been striving to bypass GFW through various methods, but it has become more and more difficult with the improvement of GFW over the years and prohibition of online sales of VPN. Nowadays you can bypass GFW only if you know where to find a workable VPN or how to set up your own proxy server.

Websites with their servers within China must be registered with the government on a real-name basis and the registrations are renewed annually (like the difficulty google.cn encountered when it renewed its license after retreating from China). Website owners must be Chinese individuals or China-registered companies. With a handful of exceptions, these companies must be either purely domestic or Sino-foreign joint ventures in which Chinese partner holds the majority interest. This is the reason why Google has to seek cooperation with a local partner like Qihoo if it intends to reenter the China market. As the reading material suggests, Qihoo does not have a reputable track record, but almost every major domestic player has got its hands dirty.

Website owners are responsible for censoring sensitive words on their websites as required by the government. For websites relying on user-created content like online forums, the websites are required to establish a filter system. The list of sensitive words updates all the time, especially when new events or scandals break out, so it is not unusual for website owners to receive a call at midnight, being told to delete posts or add new words to the filtering system. Yes, such notifications are typically made orally, without a written document. As the result, the list of sensitive words is totally opaque to the public.

The status quo is that Chinese people can hardly see what government doesn’t want them to see. As an enforcement practice, it is very effective. The big question mark is – what is the law being enforced? A sentence familiar to Chinese netizens is that “We cannot display the search results according to relevant laws and regulations.” But no one has ever explained what these laws and regulations are and people know it is in vain to ask. Prohibited information is broadly and vaguely defined in the text of the law, such as information that contradicts with the basic Constitutional principles or endangers national security, but it is simply ridiculous that you cannot google your own last name because it is the last name of the country’s prime minister.

China’s experience suggests that effectiveness is never the bottleneck in law enforcement, while there is plenty of room to debate as to the legal basis of enforcement. For what purpose should such screening be authorized? Political censorship is certainly not a good one, but which ones are universally acceptable? Even with a legitimate end, who could order the screening – government, court or private right owner? Another issue is the extent of enforcement – is an absolute ban on undesirable information necessary? Think about the Google case in Germany: If the Nazi content is still available to Germans on google.com, what is the real effect of removing them from google.de? It remains a big topic on how to strike a balance between adequacy of enforcement and avoidance of over-censorship.