The Guarded Openness: The Chinese Way to Govern the Internet
| Autor | Elisa Bertolini |
| Cargo | Professor in Bocconi University, Milão. |
| Páginas | 211-242 |
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The article provides for an outline of internet governance in China and the protection of fundamental rights, in particular freedom of expression.
The issue of the internet governance is one of the major debated by scholars in recent years and the solution seems very difficult to reach. Indeed, the problem is not only the issuing of a comprehensive regulation of the net, since such regulation has also to protect the fundamental rights of the individual.
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If we examine the technical structure of the internet, we can say that it is a completely different media in comparison with the traditional ones, such as newspapers, radio or TV broadcasting. But that does not mean that it is impossible to establish a legal framework that regulates it. A regulation is essential because the plurality of subjects – ISPs, ICPs and users – using the internet to provide services and contents, to communicate, to look for information or to express their opinion, need their rights to be legally protected. However, cyberspace presents something new for those who think about regulation and freedom. It demands a new understanding of how regulation works. Changes in technology almost inevitably destabilize the existing regulatory environment.
How to regulate cyberspace? Is it inherently not regulable by territorially based sovereignty, and should be seen as its own legal jurisdiction (multiple-jurisdiction) as Post says?1 Or is internet only a medium through which people in real space in one jurisdiction communicate with people in real space in another jurisdiction, being more complex than the real space, thus regulable by national regulations as Goldsmith contends?2
Internet, cutting across international borders, undermines the legitimacy of law based on geographic boundaries. Cyberspace has no territoriality based boundaries and it can create its own law and legal institutions. Nevertheless, a set of legal rules is necessary. Cyberspace has destroyed the relationship between a phenomena and its physical location, weakened the power of local government to assert control over on line behavior. But this does not mean that a sovereign State can not legitimately determine an internet governance or international organizations a global one; at the same time, beside national regulations, a self-regulation of cyberspace can take place.
Claiming the impossibility to issue such a governance means to leave the anarchy rule the net, originating situations in which the fundamental rights and freedoms ofPage 213 the individual are infringed. Its particular features, above all the trans-nationality, the fluidity and the continuous technological development, surely make it more difficult to issue a global and efficient regulation, but not impossible. Moreover, considering its multi-jurisdictionality, also the legal framework, the governance of the internet, should be global and based on the consensus of the majority of the international community. Therefore, the target should be the issuing of global, detailed and organic governance that offers protection to the rights and freedoms of the individual. Then the question is how to reach such consensual governance.
Analyzing the Chinese case, it comes out that the Chinese government has set up a comprehensive regulation of the internet, controlling every key point of the net. The behavior of every cyber-actor is strictly regulated, and this in a very efficient way. The problem is that this kind of governance reflects the intents of an authoritarian regime, therefore no legal protection is guaranteed to the freedom of expression, the right to privacy and to access to information. The main part of the article is devoted to how the Chinese Government censors the freedom of expression and infringes the privacy of net surfers.
The examination of the Chinese framework demonstrates that is possible to issue a regulation of the internet, despite, the fact that due to its limitation of freedom of expression, it is not suitable to become the model of global governance. Indeed, the statement of possible governance does not completely solve the problem, since other questions are still open: first, what subject should be entitled to determine the governance and second, which are the best instruments to achieve it? In the final part, the article tries to answer these questions, providing possible solutions.
Before analyzing the corpus of the internet regulations and its influence on the freedom of expression, it is convenient to consider the constitutional framework, so as to check whether there is a mismatch between the constitutional guarantees and the internet regulations.
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The Chinese State, as stated in the present Constitution, last amended in 2004, respects and preserves human rights (art. 33, par. 3) – thus overcoming the traditional socialist belief that rights are a bourgeois ideology – the freedom of expression (art. 35 and 41) and the secrecy of correspondence (art. 40). The protection of the right to privacy descends form a broad interpretation of art. 38, guaranteeing the human dignity. The bill of rights until art. 50 does not differ from the ones of Western Constitutions, but art. 51 greatly limits the enjoyment of the rights previously guaranteed. Indeed, art. 51 states that: «The exercise by citizens of the People's Republic of China of their freedoms and rights may not infringe upon the interests of the State, of society, and of the collective, or upon the lawful freedoms and rights of other citizens». Another important limit is expressed by art. 53: «Citizens of the People's Republic of China must abide by the Constitution and the law, keep State secrets, protect public property, and observe labor discipline and public order and respect social ethics». Their disclosure is also punished by art. 111 of the penal code. Art. 53 introduces a fundamental issue that in the internet regulations is used as the main limit to the freedom of expression: State secrets. The 1988 State Secrets Law defines State secrets as «all issues relating to the security and interests of the nation, determined in accordance with legally defined procedures, the knowledge of which is restricted to a defined scope of personnel for a defined length of time». The 1990 Measures for the Implementation of the Law on the Protection of State Secrets, at art. 4, list in eight points the matters that, if disclosed, can endanger State security: «(i) jeopardizes the ability of the national government to maintain stability and defend itself; (ii) affects the integrity of the nation's unity, solidarity among peoples or social stability; (iii) harms political or economic interests of the nation with respect to the outside world;(iv) affects the safety of any national leader or foreign dignitary; (v) hinders important national safety or health work; (vi) causes a reduction in the effectiveness or reliability of any measures to protect state secrets; (vii) weakens the nation's economy or technological strength; (viii) causes any national organ to lose its ability to exercise its legal authority». Other provisions on the issue are in the 1993 State Secrets Law and in the 1994 Measures for the Implementation, but they do not renew the ones of previous regulations. Despite the number of provisions and regulations on State secrets, the meaning of this expression is not clear and is stillPage 215 undefined; there are no objective criteria to decide whether a matter should be considered a State secret of not. Therefore, the authorities can broadly interpret the definition, limiting at the most the freedom of expression of the individual.
Analyzing constitutional and regulatory provisions, a mismatch emerges. The regulations are contrary to the supreme law of the country. But how can this be possible? Basically, we can say that in the Chinese legal system there is no enforceable norm against which the regulations, including the internet ones, can be measured. Therefore, although the Constitution protects the right to freely express and the right to privacy, it is itself not directly enforceable, allowing regulations that expressly violate these rights to escape any form of judicial review. Furthermore, the Constitution, despite the provision of a Constitutional Court, does not provide for a constitutional organ titled to carry out a judicial review. This means that the Chinese legal system does not provide for any judicial instrument to really protect the rights constitutionally guaranteed.
After considering the constitutional background and before considering the internet, let us briefly examine the media regulations, as a background to the internet ones.
We need to say that all the sub-constitutional regulations shall apply only to the Chinese territory, therefore not to the two special administrative regions of Hong Kong and Macao, both characterized by their own legal system.
As previously said, the Constitution guarantees freedoms and rights that are the basis of the existence of a media system, however, the exercise of these freedoms is subordinated to greater values such as the unity of the nation, the security of the State and the social order.
All the regulations concerning publishing, newspapers, satellite, radio and TV broadcasting protect the freedom of expression...
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