The Privilege of Speech and New Media: Conceptualizing China's Communications Law in the Internet Era

Abstract

Even though Article 35 of the Chinese Constitution theoretically guarantees the freedom of speech and of the press, it is a well-known fact that in reality, speech in China can be very costly indeed. In the massive body of laws and regulations promulgated in the area of culture after 1979, there are ample provisions imposing severe punishment for many speech or press-related activities, while few provisions protect expression against State. The majority of rules governing expression only permit specific actors to engage in specific activities within a specific scope, on a conditional basis. In other words, Chinese communications law aims to harness particular forms of speech in order to pursue specific objectives, and delegitimize other forms. Speech, therefore, is not a right but a privilege; it is not an entitlement granted on the basis of equality before the law and pluralist philosophy, but a power granted on the basis of particularity and monism. Until recently, this structure was buttressed a regulatory model that fragmented communication flows in an environment with a relatively small and manageable number of players. The advent of the Internet has upset this pattern. Now, the Party is confronted with the fact that hundreds of millions of individual citizens have gained easy access to tools of communication that allow them to publish information and organize in ways that had been nearly impossible earlier. This has fuelled a wave of new legislation, regulation and institution-building at different levels and across different sectors, aimed at imposing new means of control, against the background of continued political imperatives of stability and development, in order to preserve the privileged speech model.This paper surveys and conceptualises these legal evolutions in the light of evolving political, social and technological contexts. First, it provides a brief outline of Chinese media regulation as it had been constructed in the Nineties, and develops the concept of privileged speech. Second, it maps and analyses the different initiatives that have been taken by the Party leadership with regards to Internet communication, against the background of technological, commercial and social evolutions that changed the political imperatives that form the context for Party leadership. Third, it outlines how recent evolutions in the pattern of communications regulations are connected with broader questions of political reform in China.