As the Chinese Internet hurtles headlong into an uncertain future, the country’s legal system struggles to catch up. Pressed for time, the government’s reaction may be to fashion the legal equivalent of a blunt axe, rather than a finely crafted scalpel, against lawsuits filed by private citizens involving censorship on the Internet. The possible bellwether: One aggrieved netizen who calls herself “Fire Dragon Woman.”
Just the facts, ma’am
According to Chinese press reports, it all started on April 12, 2011. A woman named Yu attempted to log into her Weibo microblog account only to discover that it had been deleted. She searched for the nickname associated with her account, but was informed that name “does not exist.” A member of the service team for Sina, the private Nasdaq-listed company that runs the Weibo platform, told Ms. Yu that the account had been deleted because she had harrassed another user, and could not be restored. Yu re-registered shortly thereafter, but her new account was deleted after only a few tweets.
In early May, Yu responded by filing a civil suit against two Sina corporate entities in a local Beijing court, seeking an apology, the restoration of her Weibo access, and lawyer and court fees. Although the service was free, Yu pointed out that she logged on to Weibo every day and had “poured a great amount of time and emotion” into her account.
Sina countered that Yu had breached the terms of service by repeatedly harassing and threatening Chinese television host Fang Jing. For example, Sina’s records showed that after Ms. Fang deleted Yu from her list of Weibo “fans” due to an earlier dispute, Yu sent messages warning Fang that “the consequences could be very serious” and gave Fang “an order” to de-blacklist Yu’s account, or else “suffer the consequences.” Even if Yu’s words did not rise to the level of harassment or harm, Sina continued, it didn’t matter; because the Weibo platform was free to members, Sina claimed it reserved the right to halt service at any time and for any reason.
Round one to Yu
At first, Yu won. In December 2011, according to media reports, the local court handed down a civil judgment that held that Yu’s words had not harmed Fang, and therefore Sina’s response was inappropriate, and thus a breach of contract. The court awarded Yu RMB2,520 (about US$380) to compensate her for fees.
Assuming that Yu was not harassing or threatening Fang Jing, the lower court’s ruling appeared to make sense. Although Yu had indeed paid Sina nothing, her sustained online activity was arguably of high value to the Weibo platform. Frequent users make microblogging platforms more lively—and thus more valuable—spaces. The data that netizens help create through their frequent online activity is also worth something, even if engineers and businesspeople around the world are still puzzling how to turn that data into hard cash. And where there is a mutual exchange for value, there is a contract, even in the absence of a signed document.
Round two to Sina
But the lower court may have missed something. Just days ago, the case appeared to take a new turn when lawyer and microblogger Xu Xin (@徐昕) penned a tweet he titled “The First Weibo Deletion Case.” It described how Yu–who now uses the Weibo moniker “fire dragon woman”–was seemingly out of luck. Sina had appealed the decision, and an appeals court had ruled that Yu’s case could not be considered a civil case at all, meaning the lower court never had jurisdiction to hear it, and so could not render a judgment in the first place. Ms. Yu has confirmed via her Weibo account that she is appealing the ruling to Beijing’s high municipal court.
Why would a court be barred from hearing a contract case between a private citizen and a private corporation? Hours later, legal-news account @法律案例-文史典故 tweeted what appears to be a photograph of an internal memorandum sent by the Supreme People’s Court to all lower courts in July 2009. The memorandum appears to explain why Yu’s case was overturned, but not why the lower court reached the wrong decision in the first place.
The memo defines two categories of “Internet management-related cases” that courts are not allowed to accept. First, there are civil breach-of-contract cases in which an Internet user sues the operator of a website for deleting their article, comment, blog, post, or website—in other words, their speech or expression. Second, there are administrative cases in which a user appeals the decision by a government agency to delete their online speech or expression.
According to the document, both types of cases are off-limits to lower courts. Even other types of Internet-related cases falling outside of these categories cannot be accepted without authorization from a higher court. The memorandum finishes with an instruction not to publicize its contents to avoid “negative social effects.”
But there’s a potential catch: This document, it just so happens, was issued mere days ahead of the August 2009 launch of Sina Weibo. Sina Weibo has since become China’s pre-eminent online community, boasting about 300 million users who collectively tweet over 100 million times per day. It’s also become China’s freest collective platform for speech and debate, and thus also its center of controversy.
What does this mean?
Does this heretofore-secret document apply to Sina Weibo? At first blush, it almost certainly seems to. Weibo is a “website” after all, and the dispute that Ms. Yu initiated against Sina looks like it neatly fits the first category of prohibited cases. The lower court may simply have erred, overlooking the rule or wrongly interpreting it. Given that China’s judiciary is still not fully professionalized, that is not an entirely unconceivable result.
There are other possibilities. The photograph of the internal memorandum could be a hoax or misrepresentation. It could be a real document that was later withdrawn or superseded. There may also be a host of facts and legal findings lurking in the background which, when they come to light, will add some much needed clarity to what is now only a hazy outline.
Nevertheless, other netizens are watching. Yuan Yulai, a lawyer from Zhejiang province, recently blogged (in Chinese) about his own complaint against Sina after Sina Weibo issued a gag order against him. He too posted a link to the “internal memorandum,” and wrote that he was, in so many words, blown away by the scope of its blanket prohibition.
Free speech advocates in China should be watching too. A rule prohibiting courts from hearing all cases that center on the deletion of online expression means that service providers like Sina—not to mention the government—can freely delete users, or their words, with no legal recourse. The government can be forgiven for worrying that jilted netizens stand ready to clog its court system, but the language of the memorandum smacks more of denial and wishful thinking than of a carefully reasoned solution to this dilemma.
For now, we can only wait with baited breath as Round 3 of Fire Dragon Woman’s dispute with Sina plays out. Strictly speaking, the case won’t set a precedent in China—the country uses a civil law system instead of a common law system, meaning one ruling isn’t viewed as binding precedent for future cases. But the outcome may still speak volumes about the state of China’s legal system and whether online speech will receive any judicial protection, constrained though it may seem, in the People’s Republic.