International Law

Hu Xingdou Net Censorship Case: Much Ado About Nothing

By Stan

A Beijing judge has ruled that an internet hosting company was wrong to close a prominent government critic?s website over allegedly illegal content, in the first-ever case won by a victim of internet censorshipin a Chinese court.

Hu Xingdou, an economics professor who regularly discusses topics ranging from corruption to police brutality on his web page, sued Beijing Xin Net in April after the hosting company sent him an e-mail saying the site contained ?illegal? content and had been shut down. [FT]

I’m not really sure why this case has received so much attention. Sure, it has the appearance of a case about Net censorship, and the verdict suggests that a victim of such practices has been vindicated in an official legal decision.

Except that it isn’t about those things at all. As reported by the Financial Times (above) and other news sources, Professor Hu received a shut-down notice from his ISP, which claimed that he had posted illegal content on his site. He sued the ISP for improperly discontinuing service.

Here’s what the court found:

In a verdict issued on May 20, the Daxing district court said the company had failed to provide proof for its claim and to prove that it asked Mr Hu to change the content before closing the site, as required in their contract.

As demanded by Mr Hu, the court ordered Xin Net to return the Rmb1,370 ($201, ?143, £126) fee he had paid for two years of services. The verdict did not discuss the issue of free speech.

My emphasis. This was a relatively simple case of a commercial dispute involving a service provider and a customer, based on the service contract and applicable law. As the FT language above states, the judge did not consider the issue of free speech.

Professor Hu claims that he was not given adequate notice, was not provided with a means of correcting the situation, and was not given adequate evidence by the ISP to bolster their claims. He won, and the judge awarded him the service fees paid to the ISP as compensation.

So why does this same FT article, in the very next paragraph after a description of the verdict, move immediately to a discussion of free speech?!?

Mr Hu praised the ruling as a sign that the rule of law would gradually take root in China?s regulation of the internet, but was sceptical as to whether this would lead immediately to further moves towards greater freedom of speech.

?This means the internet will be regulated more through a set of clear rules and less with arbitrary, opaque decisions. It is a warning sign to the internet surveillance authorities as well,? he said.

But Mr Hu added that he and his lawyers were now hesitant about suing the Suzhou internet police, a step he had pledged to take earlier. ?We want to file a complaint to a court in Suzhou but [I am] 100 per cent [sure] it will be rejected,? he said.

OK, I get it. Net censorship is a sexy topic, particularly with Western readers. Any excuse to shoehorn that topic into an article is probably worth doing in that sense. It is, however, inherently misleading in this instance.

What is the “takeaway” with this case? If there is anything of note here, it is that ISPs should not be arbitrary in their Net policing activities but may need to develop more sophisticated, and documentable, internal procedures. Litigation is becoming very common, and whether you are an ISP charged with censoring content by the government (they are), or whether you are a video file sharing site obligated to police content for copyright violations (they are), adequate takedown procedures have increasingly been recognized by Chinese courts as mandatory.

Is Professor Hu correct that this case affirms China’s commitment to the Rule of Law? In the sense that any formal adjudication of a commercial dispute is a victory for the legal system, then in that tiny, almost insignificant way, I’ll give him a grudging yes. However, as a no doubt very happy, successful plaintiff, I think Professor Hu is exaggerating the importance of his case just a bit.

Let’s say it all together: this is not a free speech case.

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Full post as published by China Hearsay on May 26, 2009 (boomark / email).