Human Rights in China by Eva Pils

Author:Eva Pils
Language: eng
Format: epub
Publisher: John Wiley & Sons, Inc.
Published: 2017-11-13T05:00:00+00:00

Censorship and Crimes of Expression

While much censorship takes the form of control through prior restraint and technologies of blocking and deleting online content, the best clues on what is legally proscribed content comes from the ex post rules of censorship, in particular, from criminal law. Criminal law rules by which the system restricts the freedom of thought, conscience and expression include public order crimes such as ‘creating a disturbance’,22 state secrets crimes,23 the crimes of subversion and inciting subversion,24 the crime of defamation25 and of obscenity.26 Chinese criminal law also targets religion through the ‘crime’ of ‘abusing an evil cult to undermine implementation of the law’,27 as well as assembly and association, for example, through the crime of ‘illegal assembly’.28 Like in other jurisdictions, the authorities also make use of defamation law, which can trigger criminal, as well as civil liability in China, to go after critics of individual officials;29 and despite some encouraging case law, there is no in-principle recognition of a doctrine allowing for wider criticism of ‘public figures’.30 All of the aforementioned rules are broadly worded; and it is difficult to discern a coherent approach in their application through the criminal process.

To give an example, take the prosecution of Liu Xiaobo, detained in 2008 for his contribution to Charter 08, the aforementioned manifesto calling for reform of the Chinese Constitution and for an end to one-party rule. Charter 08 was initially signed by some 350 Chinese intellectuals, lawyers and other citizens. But, while many of them suffered other reprisals, only Liu Xiaobo was convicted and sent to prison for this. Numerous commentators pointed out that, if there was a reason for selecting Liu Xiaobo, it could not have been his actual contribution to the Charter, as he was not one of the main drafters, but merely one among hundreds of core supporters.31 Indeed, hundreds of these signed a public ‘Statement of shared responsibility’ (which the authorities tried to suppress).32 If there was anything that could explain singling out Liu Xiaobo in preference to the Charter's main drafters, it was his relative fame as a public intellectual and writer with a notorious past as a dissident prominently involved in the June Fourth protest. Perhaps this status made him a convenient tool to signal the Charter's subversive nature from the perspective of the Party-State.33 So, Liu Xiaobo was convicted of the crime of inciting subversion.34 As his case was deemed to be serious, he was sentenced to fixed-term imprisonment of eleven years. Tragically, Liu was not to survive prison. He died on 13 July 2017 of a cancer of the liver that had been left untreated for too long, having been denied permission to leave China with his wife. His wife Liu Xia is forcibly disappeared as of this writing.35

The selection of Liu Xiaobo was typical of contemporary practices with regard to speech crimes. According to the human rights advocate and scholar Teng Biao, the authorities lack the capacity to pursue criminal liability for subversion crimes with consistency.36 The

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