Anne SY Cheung Department of Law, University of Hong Kong [email_address] June 2008 Too Little Freedom or Too Much Speech? Cyber bullying of Chinese Netizens A Study of Online Defamation and Privacy Violations

Argument Growing trend of cyber bullying in the area of defamation (reputation) and privacy infringement in China Argues for a liability system on ISP

Growing trend of cyber bullying in the area of defamation (reputation) and privacy infringement in China

Argues for a liability system on ISP

Cyber Bullying Intentional, deliberate and targeted attack on private citizen Abusive, threatening, harassing Recurring or repeated behaviour for a consistent period of time By anonymous individual(s), which may amount to collective activity

Intentional, deliberate and targeted attack on private citizen

Abusive, threatening, harassing

Recurring or repeated

behaviour for a consistent period of time

By anonymous individual(s), which may amount to collective activity

Social Sanctions Used to shame, humiliate, ridicule, entertainment, or private revenge

Used to shame, humiliate, ridicule, entertainment, or private revenge

Law on Reputation Protection Art. 38 of the PRC Constitution “ personal dignity”, insult, libel, false charge or frame-up is prohibited Article 101 and 120 of the Civil Law Protects reputation, personality and honour Criminal defamation under art. 246 of Criminal Law

Art. 38 of the PRC Constitution

“ personal dignity”, insult, libel, false charge or frame-up is prohibited

Article 101 and 120 of the Civil Law

Protects reputation, personality and honour

Criminal defamation under art. 246 of Criminal Law

Privacy Interpretation of the Supreme People’s Court 1988, 1993, 1998 One’s reputation could be damaged if there is unauthorized disclosure of private details, or as a result of insult or slander

Interpretation of the Supreme People’s Court 1988, 1993, 1998

One’s reputation could be damaged if there is unauthorized disclosure of private details, or as a result of insult or slander

Online Regulation Internet users who insult or defame or infringe the lawful rights of others ISPs have duty to remove unlawful materials, inform the authority and keep the record of violators But…

Internet users who insult or defame or infringe the lawful rights of others

ISPs have duty to remove unlawful materials, inform the authority and keep the record of violators

But…

Reputation/Defamation Akin to common law Gao Xiaosong v. Yahoo (2005) Chen Tangfa v. Hangzhou Blogcn (2005) Zhang Keke v. Tianya (2008)

Akin to common law

Gao Xiaosong v. Yahoo (2005)

Chen Tangfa v. Hangzhou Blogcn (2005)

Zhang Keke v. Tianya (2008)

Internet Scandal What should one do?

What should one do?

Privacy Egao 恶搞 Social Evil Perceived Self-Justified Behaviour

Egao 恶搞

Social Evil

Perceived Self-Justified Behaviour

Egao 恶搞 Malicious or reckless attack through visual, audio, video, textual forms Amusement or entertaining Little Fatty Shanghai Lovers

Malicious or reckless attack through visual, audio, video, textual forms

Amusement or entertaining

Little Fatty

Shanghai Lovers

Socially Reprehensible Acts?

Self-Justified Act?

Peaceful Demonstration?

ISPs Liability Given large no. of netizens involved, most are anonymous Europe: notice and take down once aware that information was unlawful US: Communications Decency Act but Delaware (Doe v. Cahill) ISP should disclose anonymous authors is the standard of a summary judgment is met Washington (Doe v. 2TheMart.com), whether the claim could withstand a motion to dismiss and to file a discovery request

Given large no. of netizens involved, most are anonymous

Europe: notice and take down once aware that information was unlawful

US: Communications Decency Act but

Delaware (Doe v. Cahill) ISP should disclose anonymous authors is the standard of a summary judgment is met

Washington (Doe v. 2TheMart.com), whether the claim could withstand a motion to dismiss and to file a discovery request