Censorship and Freedom of Expression

Lincoln Davidson is a research associate for Asia Studies at the Council on Foreign Relations. You can follow him on Twitter @dvdsndvdsn.  As Chinese authorities take aim, yet again, at online rumors, a defamation lawsuit brought by KFC is making headlines in China. While the case appears to be pretty clear-cut, by bringing its suit, KFC is inadvertently supporting the CCP’s efforts to quash rumors and limit free speech online. On June 1, KFC initiated a lawsuit against ten accounts on WeChat, a Chinese mobile app similar to WhatsApp. According to the president of KFC China, the accounts claim that KFC had biologically engineered mutant chickens with eight legs and six wings. KFC is suing the account owners for combined damages of 3.5 million RMB (about $560,000 USD), although the court is unlikely to fully compensate KFC if it rules in its favor. KFC’s lawsuit is only the latest in a series of cases brought by Chinese food producers for defamation online. Some of the cases have even been brought against companies that are operating as literal rumor mills, posting advertisements for products or denigrating competitors’ products on WeChat accounts for a few hundred yuan (about $50 USD). Discussing the KFC case, Zhang Limei, a commentator in Legal Daily, highlights the damage that rumors can do to public trust in businesses. When a rumor’s reach is particularly widespread, she argues it can lead to “social panic.” Because rumors are “easy to make, but hard to break,” she notes the public needs to be taught to think twice about online information. However, as rumors have a tendency to evolve more quickly than any education effort, Zhang asserts that it is in the public interest for the government to limit online expression. Providers of Internet platforms have long played an important role in the CCP’s approach to online discourse shaping. Much of the minutiae of censorship has been delegated to platform operators, who must employ censors tasked with reviewing online posts and deleting objectionable content. When authorities feel they aren’t doing a good enough job, operators are forced to adopt new measures to catch more posts. Zhang expects WeChat to play a similar role in managing online rumors, but finds that the app’s creator, Tencent, is swamped with too many reports to process. While Tencent’s system automatically intercepts around two million rumors daily, some inevitably slip through. (WeChat has about 550 million active users, nearly twice that of Twitter.) Confronting such a large volume of rumors requires, in Zhang’s view, that some of the responsibility for censorship must be further decentralized: companies who are the target of rumors should use the legal system to hit back at rumormongers: “If there were more firms that were willing, like KFC, to step out and take up the weapon of the law to defend their rights […] they would certainly be able to restrain malicious, and often paid, manipulation of rumors. Regardless of the case’s decision, KFC’s lawsuit against the ‘six-winged mutant chicken’ WeChat accounts should become an example for companies and the public of how to vigorously defend oneself from online rumors. […] The best way to refute rumors is to rely on the law and allow the courts to lay out a decision and discipline the rumormongers.” In other words, companies and individuals must be active in reporting online rumors. This is a point that China’s Internet regulators have stressed over the last few months.  In a recent speech, Lu Wei, the head of the Cyberspace Administration of China, argued that a central cybersecurity challenge for China is creating a “civilized” Internet that is “purified” of “harmful information.” To achieve this, he emphasized getting all of Chinese society involved in being “good netizens” (including, presumably, private enterprises). While KFC needs to protect its product and reputation, its approach to the WeChat rumors risks reinforcing the government’s narrative of the need for censorship in at least two ways. First, the company has characterized Chinese citizens as ignorant and easily misled, implicitly endorsing the Chinese government’s tightening of online discourse. In a speech in May, President of KFC China Qu Cuirong said that because consumers’ knowledge can’t increase at the same rate as rumors are produced, “if things keep going this way, our consumers will become confused. They won’t know what they can eat.” Second, and perhaps more troubling, the greater use of the “weapon of the law” by businesses to stamp out online “rumors” could easily lead individuals to avoid making public statements of any kind online. It’s safe to say that an overly-broad definition of "harmful rumors" would have a dampening effect on discourse on WeChat because that’s exactly what happened on Weibo after the Chinese government created legislation making it possible to, in the words of one blogger, "hate-retweet someone into jail." Companies have good reason to be concerned about rumors and the impact they can have on business. But as the Chinese media unleashes a barrage on online rumors, KFC and others who might follow it risk tacitly promoting the CCP’s vision for the Internet—a vision that is anything but free and open.

Sharone Tobias is a Research Associate for Asia Studies at the Council on Foreign Relations. Earlier this month, Taiwanese Internet advocacy groups succeeded in shutting down an anti-piracy bill similar to the U.S. Stop Online Piracy Act (SOPA). The bill was an amendment to the Taiwan Intellectual Property Office’s Copyright Act, and would have forced Internet service providers to block a list of domains or IP addresses connected to websites and services that enable illegal file sharing. The plan would have allowed Taiwan’s bureaucracies to create a blacklist for websites and peer-to-peer sharing tools like BitTorrent, rather than blocking individual videos and files as the law currently allows. The blacklist would also have been kept confidential from the public. Most of the pressure for this legislation came from the recording industry, but the U.S. government also expressed concern over piracy in the U.S. Trade Representative’s most recent National Estimate Trade Report. The plan was abandoned after several large Internet companies, including Wikimedia Taiwan and Mozilla Taiwan, threatened to stage a day-long blackout similar to the Internet blackouts that took place in the United States against SOPA last year. Wang Mei-hua, head of the Intellectual Property Office, declared that the government had no desire to set restrictions on freedom of speech or access to information. Nevertheless, many activists claimed that the law could create a China-like Great Wall. The activists have reignited passion for freedom of speech on the island, especially as ties with the mainland have steadily strengthened during President Ma Ying-jeou’s administration. Taiwanese youth have often been accused of political apathy, viewed as taking for granted the democracy they did not have to fight for. But recent the anti-piracy bill comes at a time when students and other young people have been protesting amidst fear for the future of free information and media in Taiwan. As James Stand wrote on the blog, many Taiwanese media outlets have been bought by Chinese companies or very pro-China entrepreneurs. For example, pro-China businessman Tsai Eng-Meng, owner of Want Want Media and China Times Group, attempted to buy Next Media Consortium in a deal that would have allowed him to own 50 per cent of Taiwan’s independent media. Free media advocates in Taiwan claim that Tsai’s support for unification with China and other issues put him and his media companies deeply at odds with the majority of Taiwanese opinion. In May 2012, an investigation by the Taiwan Mainland Affairs Council found "clear evidence" that five-day-long extensive coverage of a Chinese official’s visit to Taiwan was in fact paid advertising. The $586 million deal ultimately fell through after tens of thousands marched in Taipei, and now the Taiwanese Legislative Yuan is considering anti-media monopoly legislation. There are similar to allegations in Hong Kong, where pro-China businessmen have bought many of the local media companies and allegedly softened the tone towards the mainland. It was not so long ago that Taiwanese media was just as heavily censored as China’s media is today. Not until democratization in 1987 did Taiwan began to have a free press. Since then, Taiwan has developed a robust, if raucous, media and a proud culture of dissent; Freedom House rates it as one of the freest in Asia, with freedom of speech protected in the constitution. Most of the activists against anti-piracy legislation and media conglomeration are young Taiwanese who came of age when Taiwan was already a democracy. Though Internet and press freedom is still a concern, these citizens have shown their ability to organize freely and effectively to stop legislation they disagree with.

As reported on in Siam Voices this week, Google has released its 2012 Transparency Report, which chronicles requests that Google receives, mostly from governments, to block material online. As Lisa Gardner notes on Siam Voices, “Google bucked international trends in 2011 by blocking access to hundreds of web pages at the behest of the Thai Ministry of Information, Communication, and Technology [MICT].” One part of the report shows that Google has restricted or partly restricted at least 149 YouTube videos that the Thai government claimed was insulting to the monarchy. Unlike in many other countries, where Google supposedly makes its decisions to take down material after a local court issues an order (not that courts are infallible, but at least there is a court order), in Thailand it took down material even without court orders being issued, simply at the request of the authorities. Overall, around the world last year, Google complied with about 54 percent of requests by governments and copyright holders to take down material.  But in Thailand, Gardner reports, Google “chose to comply with each request made by Thai government censors” —in essence, 100 percent of their requests, a chilling number. Gardner identifies a number of clear, pressing problems with Google’s approach, and these problems are only going to be magnified as Thailand’s political conflict, already at the boiling point, gets hotter, or if a coup is launched by the military, not an impossible proposition now. For one, although Google claims that it only removes material if the requests to remove are relatively narrow, in Thailand the application of the lèse-majesté law and the Computer Crimes Act has become broader and broader each year, and now is so broadly defined —some would say undefined— as to be almost impossible to understand. (Scholar David Streckfuss, the authority on lèse-majesté, has shown how over the past decade Lèse-Majesté cases have skyrocketed, reaching a number rarely seen in any monarchy in history, other than in late nineteenth century Germany.) Since the Thai courts are not helping to clarify the law —they basically almost never acquit anyone for Lèse-Majesté or violating the Computer Crimes Act, and reduce sentences only when there is major international pressure, as in the case of the editor of Prachatai—how will Google, or any other company, know which Thai requests are narrow enough to act on? Or whether any requests are actually narrow enough to act on? And since the law is increasingly used as a political weapon —by royalists against liberals as well as against pro-Thaksin red shirts, and in reverse by some pro-Thaksin allies against royalists— how can Google be sure that it is not essentially serving as part of either side’s arsenal, or that, if it is going to take down material, it is balancing both sides in the Thai political struggle? In many countries, such as China, Google has stood out in making a strong case for free expression online, and using its corporate power to support that approach. And it does have employees in Thailand, as it did in China, which it needs to be protective of. Still, Google’s actions are very concerning. The company has not yet explained what material MICT tried to block, according to Gardner’s report. More importantly, Google has not shown any clear position on how it determines which online material in Thailand, where the lèse-majesté and Computer Crimes Act have become two of the biggest weapons against free expression, it considers worthy of being taken down. The company should enunciate a clear position, helping Thai (and foreign) users understand its rationale, and drawing a firmer line in the sand for MICT.

The New York Times reports that an exhibition at a Johannesburg art gallery is pushing contemporary hot buttons. On exhibit is a large painting of a figure resembling President Zuma with his genitals exposed. The governing African National Congress (ANC) is suing to have the painting removed. The gallery and its supporters from civil society are claiming the right to free speech, which the constitution guarantees. There are several special South African dimensions to this episode. The ANC is using the courts. It is seeking the removal of the painting through the rule of law, rather than by other means. (The painting has subsequently been defaced, and, as a result, the gallery temporarily closed, but I have seen no evidence of ANC complicity in the vandalism.) Zuma is black, while the artist and those associated with the art gallery appear to me to be white. Hence, for Zuma’s supporters there is probably a racial dimension. One of his supporters claims publicly that the painting feeds white prejudice that blacks are “over-sexualized.” Zuma is likely to face a challenge to his ANC leadership at the party convention in December. He is a polygamist with four wives, at least twenty children, and was acquitted in a notorious rape trial where he argued that the unprotected sex – with an HIV-positive woman--was consensual. Hence, the painting hardly helps his image. In addition, the painting is almost certainly deeply offensive to the evangelical and Pentecostal communities, which are growing fast among black South Africans. Zuma of late has been reaching out to both communities as he looks toward the December party conference. So, it is about art that is offensive to many South Africans. It is also about Jacob Zuma. But, the context for its resolution remains the rule of law.

Over the past week there have been curious Nigerian developments. The government has been unable to pay its civil servants and is now a month in arrears. The explanation has been that the Nigeria National Petroleum Corporation failed to deposit the government’s oil revenue in the account from which civil servants are paid. Then, this week, the government closed down the press office at Lagos’s Murtala Muhammed Airport. This facility has operated under military and civilian governments and is a generation old. In addition, journalists were reportedly threatened in the Middle Belt. South, in the Niger Delta, ‘Jomo Gbomo,’ the mythic spokesman for the Movement for the Emancipation of the Niger Delta has blasted President Goodluck Jonathan in personal terms, threatened renewed mayhem, and in fact carried out an act of oil sabotage. Boko Haram, the radical Northern Islamic movement, continues its almost daily depredations, and it attacked a military base in Kaduna. So many unanswered questions. With respect to civil service pay, governments do not “run out of money.” They can always borrow. Failure to pay civil servants can be risky and governments usually seek to avoid non-payment. And why did NNPC fail to make the requisite deposits? What will the civil servants do? Like everybody else they are coping with price increases associated with the roll back of the fuel subsidy. Why the squeeze on the press? Freedom House evaluates the Nigerian press as “partially free.” But overt government pressure on the media has been rare. And why is ‘Jomo Gbomo’ resurfacing now? We should resist the temptation to see these episodes as somehow interrelated. But, together, they are bound to stress the Jonathan government. Asch Harwood contributed to this post.