• 28Feb

    Global Times [February 25 2010]

    By Zhang Lei

    He couldn't take it anymore.

    When Hong Kong writer and poet Liao Weitang found his online photo album had been deleted by douban.com, he quit, leaving behind the 3,000 friends he had made over two years.

    "I had a great time here," he wrote in his leaving statement to users of the Chinese mainland social networking service, "despite my account twice being suspended and having 100 posts deleted.

    "But just lately this website has gone insane. It's like half of the 5,000 most-commonly-used words are banned."

    The final straw for Liao was the deletion of The Beautiful and Strong People, an album featuring Hong Kong youths and artists involved in a protest against the HK$66.7-billion Hong Kong to Shenzhen and Guangzhou high-speed rail link. Photos of kneeling, barefoot youths were apparently deemed too political.

    "I shot beautiful young faces, nothing radical or provocative," Liao said. "But they just couldn't let it go."

    "I stuck it out for two years with Douban, posting poems and comments, trying to bring a little truth and alternative values to my friends behind the Great Firewall.
    "But I've got to have a bottom line somewhere. The Web master repeatedly tested my principles. So finally I decided to leave this website that is becoming renowned for self-castration."

    Douban used to be more flexible with him back in the old days, Liao said. For example instead of deleting, website managers might close off content by making it "private" not public. Or entries were not erased immediately, perhaps after a day or two, he recalled.

    "That way, hundreds and thousands would see them," he said.

    As one of only a few Kong Hong writers willing to operate in this compromised Internet environment, Liao said he had savored the opportunity to communicate with isolated mainland friends.

    "I posted on Douban what the public needs to know, saving more personal stuff for my blog."

    Initiated in 2005, Douban has 33 million registered users: mostly students and intellectuals who enjoy the social networking service's simple design and user-generated content like books, movies and albums. More recently, Douban's tightening censorship has upset some veteran members.

    It got to the point that Peking University student Fang Kecheng wrote an open letter of complaint to Douban for suspending his account, dubbing the website a "dictator".

    According to Fang, users and Web masters had been forced into playing hide-and-seek with Big River, Big Sea – Untold Stories of 1949, a banned book by Taiwan writer Lung Yingtai.

    As the book's International Standard Book Number (ISBN) was forbidden on the mainland, users kept the title but altered the ISBN in order to share their comments and ratings.

    Douban's Web masters spotted the incorrect ISBN, erased the title and re-inserted the original, correct title. Seeing this, Fang changed the title back again, which led to his account being closed.

    "I can't believe contributing entry content can be a crime," Fang said. "Any user can submit information they think is right on a website that relies on user-generated content."

    Fang wanted to find out whether the book's sensitivity had contributed to his punishment and so he got his friend to change the title back again. His friend's account was also closed.

    It wasn't the censorship per se that enraged Fang and other Web users, it was Douban breaching its own published code of conduct.

    "Douban's ban is unreasonable and random," Fang wrote. "It's authoritarian because you can be banned for three days, seven days or forever with no justification and all your diaries, albums, collections and messages are gone."

    Douban's rules state users must receive three warnings before such a final, permanent closure: After a first warning, the account is suspended three days. The second warning leads to a week's ban. Only after a third warning is the account supposed to be closed down permanently.

    Fang's open letter led to the lifting of a closure on his account.

    Commercial survival

    Self-censorship is the rule of survival that prevents popular websites from being shut down, Zoe Wang, a veteran website developer told the Global Times.

    "I can understand an author being outraged when his post gets deleted, but it's even harder to operate a website as I have to suffer the humiliation of supervisory organs and handle all the criticisms coming from users," she said.

    "How can you hope to pay your staff or maintain your users' statistics if the website is shut down all because of one sensitive post?"

    "You can never relax," said the small website operator.

    "You're always keeping your phone switched on and waiting for that emergency call from the authorities requiring deletion of a post."

    What's worse, she said, was the complete absence of clear-cut rules for deciding whether or not to delete an online post.

    "The criterion of sensitivity depends on many aspects such as the political environment, the website's background, size and location, as well as the different understandings of Web masters."

    Douban was extraordinarily cautious about its content as it had no background or ties to government, according to a source close to an editor at the site.

    "Once you're shut down, nobody can save you," the source said.

    No editor from Douban would go on the record when the Global Times contacted them.

    "Douban recalls clearly the fate of Fanfou, Yeeyan and Blogbus," Fang said.

    They were three of the most well-known mainland websites closed down last year, according to the Southern Metropolis Weekly. The latter two were recovered in January.

    Fanfou founder Wang Xing was pondering how much to up censorship during the July 5 Xinjiang riot last year when he got his answer.

    The Twitter-style microblogging service for 100,000 registered users was closed down almost immediately for "violating related rules", according to the China Business News Weekly.

    Wang hasn't given up hope of bringing Fanfou back some day. Seven months on, Wang still refused to comment.

    A site that published collaborative user-submitted translations of English and Chinese articles, Yeeyan was shut down in November last year for violating the regulation on "running a news information service".

    According to this national regulation, any organization applying for the establishment of an Internet news information service on the Chinese mainland must have registered capital of no less than 10 million yuan and at least five Chinese mainland editors who have engaged in journalism for longer than three years.

    Yeeyan relaunched 39 days later under tight self-censorship, with all "political" news removed.

    "It was difficult to figure out what we can say and what we cannot," Chen Haozhi, founder of Yeeyan, told the Guangzhou-based newspaper Southern Weekend.

    The most devastating issue for translators was finding so much of their hard work deleted, said a former volunteer.

    "It wasn't our fault because we couldn't twist the original meaning of the news stories," she said.

    "I've got absolutely no idea what is sensitive and what is not."

    Admittedly, she said, they knew their work was "risky" as "most foreign news about China is negative".

    Yeeyan's partnership with the Guardian newspaper had made the staff especially proud, the translator said.

    "The website attracted many readers as it helped them bypass the two walls," she said. "Most Chinese face two obstacles: the Great Firewall and the language barrier."

    Neutering was the only option for Yeeyan if they wanted to continue in business, she said.

    Yeeyan was also bound by copyright law, she said. The translation company had to delete a group translation of Dan Brown's blockbuster The Lost Symbol and apologize to the book's Chinese publisher last year.

    No appeal

    Aside from suffering censorship or shutdowns for reasons unknown, a common complaint among Internet users and website operators is the lack of an appeal.

    "You can only go to related departments and beg them to give you another chance," Liao said.

    As the Web master of an online poetry forum, Liao has a list of sensitive words he received from the local Internet authority.

    "They hope we will delete posts containing these words," he said, "but I don't see it making much sense."

    The forum was shut down twice last year.

    "We have no idea why," he said. "It came all of a sudden."

    In response, the site's server was moved to Hong Kong.

    "It's impossible to rescue your website if you violated the related law," a Web master from China Unicom, Beijing branch, told the Global Times.

    "As long as Douban is growing, it won't care about what users say because the real threat comes from the authorities," Fang said.

    It's pointless fighting the system, he said.

    "We can only fight the slavish social environment and gradually gain a sense of citizenship," he said.

    Vague laws

    There are 14 general laws and regulations governing illegal online behavior, all vague and lacking in detailed, practical provisions, according to Li Yonggang, a professor of Internet politics from Nan-jing University, in his newly published book Our Great Firewall: Expression and Governance in the Era of the Internet.

    "As a result, it's difficult to draw a line when operators and Web users censor, apart from the well-known restricted field of political issues," he wrote.

    There are more than 10 government organs entitled to supervise the Internet, Li said. This inevitably gives rise to conflicts, he believed.

    Bans are also increasingly unpredictable, he said. Recipients receive no explanation and no comeback. Chinese mainland Web users tend to react with a pessimistic, alienated and impotent attitude.

    "Chinese may criticize the evils of society, but at the same time they feel like participants," Li said.

    "In fact the Great Firewall is rooted in our hearts as so little 'harmful information' will ever come to light thanks to individuals' self-discipline and website operators' self-censorship."

    Online opinion is a double-edged sword, said Wang, also a bulletin board moderator. Irrational online outcries aren't helping anyone, she argued. She cited the online petition for Sun Zhigang, famously beaten to death in 2003 for not carrying a temporary living permit.

    Observers attributed the ending of the policy of custody and repatriation to online public sentiment. In fact, Wang said, the change of policy came about because of the SARS breakout.

    "They were all eager to sign a petition when something happened but in fact it only led to the shutting down of these significant forums.

    "We can't stop censorship, but we can articulate the truth with a more rational attitude. When different opinions coexist, people find their own answers."

    Censorship is also necessary to prevent certain kinds of harm being done to others, argued Zhu Wei, a professor at China University of Politics and Laws in Beijing.

    "The nude picture scandal wouldn't have run out of control if there was no Internet," he said. "Unrestricted, freedom can lead to violence."

    According to the newly-passed Tort Liability Law, any Web user or service provider who infringes upon the civil rights and benefits of another is liable.

    This new catch-all is a valuable control over online opinion. According to Article 36, the infringed party can inform the Web service provider to delete, shield or cut the links as well as any other necessary measures.

    "The Web service provider who doesn't take necessary measures after receiving this information will bear joint liability along with the Web user," the law states.

  • 26Feb

    Maginot_LIne_AntiTank

    尽管冰岛的IMMI计划仍在国会讨论中,但对于此项方案的前景,已经有截然不同的两种声音出现。乐观者认为,冰岛将成为无国界的新闻乐土,不仅冰岛本身可以从中受益,成为一个更透明、更稳定的国家,更重要的是,它可以通过一系列保护表达自由的法律为全世界的媒体、记者和线人提供庇护;而悲观者则认为,即使该方案得以通过,也不过是一道看上去坚固完美但实际上毫无作用的马其诺防线。

    这种令人情绪低落的比喻不无道理,因为在目前的国际法体系中,各国的国内法对他国是没有约束力的——就像我们经常在官方媒体中听到的那句话:“决不允许别国干涉中国内政。”法律自然属于所谓“内政”之一。今天的世界虽然有欧盟这样的国家主权不断让渡的先驱者,但从整体上看仍属于主权处于绝对强势地位、国内法坚挺的时代,就连国际人权公约这样的各缔约国必须遵守的国际法都因为缺乏对国内法的影响力和制约力而被称为“软法”,更遑论一国国内法对他国产生影响了。

    基于这样的基本判断,我预测,如果IMMI计划在冰岛获得通过,相关法律顺利完成修订,将会发生这些事情。(当然,这些预测未必靠谱,甚至可能很不靠谱,权当提供一种意见。)

    首先,就冰岛而言,它的确将成为整个地球上对表达自由的保护最到位的国家,它在各项涉及新闻自由、公民权利、政府透明度的国际排行榜上将以绝对优势领先,整个社会将更加和谐。

    其次,许多跨国媒体将在冰岛设立办事处,以谋求冰岛法律的庇护。许多涉及敏感信息的报道将改由冰岛办事处进行,倘若再有水门事件发生,深喉很可能藏身于北欧,相关报道也将从冰岛发出,尽管事件的调查仍需要在美国本土进行。在面临诽谤罪指控时,跨国媒体也将考虑利用对媒体极为友好的冰岛法律发起反诉讼。

    再次,一些在本国面临打压的小媒体将谋求在冰岛注册,冰岛也将以极低的门槛为它们提供帮助。同时,大量致力于披露敏感信息的网站将落户冰岛,这个北欧小国的网站数量将爆发式增长,带来新的经济增长点。当然,一旦某国的媒体和网站选择移师冰岛,它们在获得继续出版的自由的同时,将很可能被剥夺在它们的祖国发行和被访问的权利。部分媒体和网站或许会在冰岛提起跨国诉讼,要求解除对它们的禁令,但不会有什么结果。

    即使媒体选择在冰岛注册,网站选择搭建在冰岛的服务器上,它们的主办者身处何方仍将是一个问题。如果媒体和网站的主办者移民冰岛,它们将免于因言获罪的恐惧;但如果仍然留在其他国家,比如美国,它们仍然面临着被起诉和制裁的危险,而法官在判案时显然也将沿用美国法律,而非参照冰岛。

    最后,如果其他国家的媒体和网站选择留在本国,那么冰岛的新闻业天堂对于它们来说将仅仅是一个梦境,尽管就在同一个地球上,但却好像远在火星。唯一的不同是,他们当中的一些人将获得这个北欧国家以全体国民的名义授予的崇高荣誉——冰岛言论自由奖。当然,接下来,这个奖项将在获奖者的祖国遭遇诺贝尔和平奖类似的污名化命运。

    情况似乎不那么乐观,对吧?但我想说的是:即便IMMI方案的效果与马其诺防线无异,我们也不应过于悲观。相反,我们应该为这条防线的出现而欢呼,因为只有在各种力量侵犯表达自由的道路上建起一道又一道的防线,我们才能捍卫自己的自由。就算今天冰岛的IMMI方案建起的防线会被绕过,但总有一天,妄图侵犯表达自由的力量会发现,地球上的每一寸土地都建起了这样的防线,而他们则已经无路可绕。

    《冰岛:未来的新闻业天堂?(1)》
    《冰岛:未来的新闻业天堂?(2)》

  • 22Feb

    在冰岛国会正在讨论的这项令全世界新闻人都为之一振的IMMI方案中,有一个短语被作为重点提及:libel tourism。直译过来是“诽谤诉讼旅行”,很拗口,其实套用汉语里的一句俗话就是“告洋状”。

    如何理解这种“告洋状”?原来,在大多数西方发达国家,媒体的新闻自由所面临的最大威胁不是新闻审查,而是法律风险。在媒体被诉的诸种罪名中,最经常出现的往往就是“诽谤”。但是各国对媒体构成诽谤的定罪标准不一,在有些国家,要想以诽谤罪告倒媒体是相当困难的,比如美国,以“《纽约时报》诉沙利文案”为代表树立了保护言论自由、谨慎定诽谤罪的传统;而在有的国家,相关法律条文相当偏向诽谤诉讼中的原告,比如英国,要求媒体承担证明报道真实性的责任,否则就要判决媒体败诉。这样一来,便有大批的人前往英国,在英国的法院提起针对媒体的诽谤诉讼,这些人便是“诽谤诉讼旅行者”,或曰“告洋状者”,他们的案子在自己的祖国本不可能胜诉,但到了英国之后就扭转了局面。

    libel

    这种“诽谤诉讼旅行”如果逐渐蔓延开来,后果将是严重的。道理很简单,类似于“短板理论”:假设英国的法律是全世界对媒体限制最严格的,那么在“告洋状”普及之后,所有想要让媒体闭嘴的人都会去英国起诉,到那时,全世界的媒体都不得不根据整个木桶中最短的那一块木板行事。正因为如此,美国的许多媒体、研究机构和人权组织已经于去年联名向英国议会提交了一份备忘录,表达对于“诽谤诉讼旅行”可能给新闻自由带来的负面影响的担忧。

    可能有人会问:这种“告洋状”是如何实现的?例如,《纽约时报》明明在纽约,你怎么可能去英国起诉它?在各国现有的判例中,至少有这样几种情况:首先,如果是网站,那么世界各地都可以访问网站上的内容,也就可以在他国起诉;其次,如果一份报刊是面向全球发行的,或者有全球发行的版本,那么就可以在他国起诉;再次,如果一份报刊或一本书并没有全球发行,但原告可以证明自己在某国买到了这本书,就算只买到了两三本,也可以在该国提起诉讼。

    正因为“诽谤诉讼旅行”已经成为西方发达国家媒体所面临的大问题,所以IMMI将如何应对此问题作为一项主要课题。在方案制定者看来,可以“以子之矛攻子之盾”,既然想让媒体闭嘴的人可以去英国“告洋状”,那么被诉媒体也可以选择到冰岛来“告洋状”,提起一个反诉讼。

    当然,“诽谤诉讼旅行”所涉及的司法管辖权(jurisdiction)问题十分复杂,IMMI的方案能否彻底解决这一问题尚需考量。

    实际上,整个IMMI所面临的核心问题也是司法管辖权问题。很多中国人最关心的是:冰岛修改法律,为媒体营造宽松环境,听上去不错,但这跟中国的媒体有关吗?跟中国人有关吗?甚至有人评论:“坐等冰岛被和谐”。关于这个问题,我将在下一篇中详细分析。

    《冰岛:未来的新闻业天堂?(3)》
    《冰岛:未来的新闻业天堂?(1)》

  • 19Feb

    iceland

    北欧国家冰岛正在酝酿一件大事。如果一切顺利的话,这个仅有31.7万人口的国家将在不久的将来变身新闻业的天堂,成为整个地球上对表达自由的保护最到位的地方。

    2月16日,一项名为“冰岛现代传媒倡议”(Icelandic Modern Media Initiative,简称IMMI)的计划书被呈交至冰岛国会,并将于10天左右的时间内被讨论和投票。如果方案得以通过,冰岛将修改一系列的法律,以达到对媒体、记者、线人的保护,尤其是对调查性报道的保护和对以诽谤罪起诉记者的抑制,吸引媒体和网站在当地注册和运营。

    除此之外,IMMI的内容还包括:限制对言论的事前审查;对互联网服务提供商(ISP)的免责保护(迥异于中国刚刚通过的《侵权责任法》中对ISP责任的规定);设立冰岛言论自由奖等。

    当然,IMMI在尽量扩展表达自由限度的同时,也有自己的底线——它不会对涉及儿童色情和商业版权的现有法规进行修改。

    实际上,从某种角度来说,冰岛一直是新闻业的天堂。在各种涉及言论自由的世界排名中,冰岛从来都是名列前茅。最近,冰岛的排名有些波动,在记者无国界组织的排名中,它从2007年的第1下滑到了2009年的第9,这让一些冰岛人坐不住了,他们认为:这种趋势必须被遏制。

    但促使冰岛人提出IMMI的并不简单是这个原因,真正的情况是:自从2008年在金融危机中遭受重创,面临破产危机(连麦当劳都退出了冰岛)后,冰岛一直在寻求未来的出路。冰岛人不希望再依靠脆弱的金融业,要他们再回去捕鱼也不现实,于是,依靠宽松的法律环境来吸引传媒和互联网公司,打造一个信息自由的“开曼群岛”便成为一个靠谱的想法。既然加勒比海上的小岛可以成为“避税天堂”,为什么北欧的小国不可以成为媒体逃避审查,规避法律风险的天堂呢?

    为信息的自由流通创造适宜的法律环境,不仅可以吸引媒体和网站入驻,带动经济增长,还有利于经济的平稳发展——套用中国政府的说法,就是“又好又快发展”。冰岛国会议员Lilja Mósesdóttir认为:“IMMF的主要目的是防止类似金融危机这样的事情再次发生。”这位议员说,冰岛的金融巨头对冰岛传媒有巨大的影响,“他们操控了新闻”。而IMMF将有望改变这种状况,让新闻更自由、更真实,真正成为船头的瞭望者,及时发现远处的冰山。

    受命解决冰岛银行业危机的欧洲议会议员、被称为“反腐女神”的法国检察官Eva Joly也为此方案背书:“在我调查腐败的工作中,我意识到:有让公众知情的完善机制是多么重要。冰岛有新鲜的远景规划,有勇敢、独立的人民,看上去将是开启此种走向全球透明和公正道路的完美地点。”

    虽然冰岛国会的讨论正在进行中,但据议员Birgitta Jónsdóttir透露,国会63席中已有38席支持此方案。如果一切顺利,相关的法律将在6个月内被起草和通过。但即便计划遇到了挫折,甚至流产,冰岛的这一方案也至少让我们看到了在这个星球上实现真正表达自由的可能性。

    →继续阅读:《冰岛:未来的新闻业天堂?(2)》
    《冰岛:未来的新闻业天堂?(3)》

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