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Anne SY CheungDepartment of Law,

University of Hong Konganne.cheung@hku.hk

June 2008

Too Little Freedom or Too Much Speech?

Cyber bullying of Chinese Netizens

A Study of Online Defamation and Privacy Violations

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Argument

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

• Argues for a liability system on ISP

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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 amou

nt to collective activity

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Social Sanctions

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

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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

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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

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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…

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Reputation/Defamation

• Akin to common law • Gao Xiaosong v. Yahoo (2005)• Chen Tangfa v. Hangzhou Blogcn

(2005)• Zhang Keke v. Tianya (2008)

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Internet Scandal

• What should one do?

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Privacy

• Egao 恶搞• Social Evil• Perceived Self-Justified Behaviour

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Egao 恶搞• Malicious or reckless attack

through visual, audio, video, textual forms

• Amusement or entertaining• Little Fatty• Shanghai Lovers

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Socially Reprehensible Acts?

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Self-Justified Act?

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Peaceful Demonstration?

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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