From vagueness to clarity? Articulating legal criteria of digital content regulation in China

Introduction

This research examines China’s laws and regulations on digital media content, with a focus on the law’s development and transformation over time. Researchers have argued that Chinese laws on Internet content are often vague and arbitrary (e.g. Endeshaw, 2004; Laprès, 2000; Li, Winter 2003/2004; Wacker, 2003; Zheng, 2013). This research maintains that, viewed as a whole, China’s digital content laws show more of an ‘unbalanced’ development rather than across-the-board vagueness. Specific and elaborated rules have been spelt out in quite a few legal areas, while some other areas remain ‘vague’, including legal restraints on speeches regarding the political system or those pertaining to certain historical periods and events (e.g. Tiananmen Square). The law’s selective development is a distinct feature of China’s digital policy. It sheds light on the ambiguities and contradictions in Chinese media growth in ways different from studies on individual legal codes and cases, enforcement issues or governmental censorship.

In addition, this research argues that the development of the law has not been, and will not be, a simple linear progress from ‘vagueness’ to ‘clarity’. First (and as just mentioned), it is not accurate to describe all Chinese digital content laws as vague since some of them have very specific and elaborate provisions. Second, to assess the ‘vagueness’ (or ‘clarity’) of the law always involves some kind of ‘measuring’ using pre-set standards. These standards are not above and beyond concrete social experiences in specific historical contexts, and their application to China’s digital media is not as ‘neutral’ or ‘ideology-free’ as the notion of ‘measuring’ implicates. Third, to ‘clarify’ the law (especially those areas that remain ‘vague’) is not a ‘technical’ or ‘professional’ undertaking, but a very contentious political project. Ambiguity of the law is at the core of contemporary China’s ideological and political ambiguity. Much more is at stake when (or if) the party state chooses to face (rather than to evade) some of the more difficult questions regarding its role in Chinese history, politics and society. The law manifests these struggles (or the attempts to avoid/postpone them) and cannot possibly transform into a ‘clearer’ shape before, or independent from, China’s transformation into a less ambiguous political and ideological stance.

This research focuses on the law’s transformation across time. It sees a continuous effort to formulate legal rules on publications and speech in China. A large chunk of today’s Internet law and policy in China is about content regulation (Yang and Mueller, 2014), but the attempt to articulate legal criteria of media content started in the early 1980s in ‘pre-digital’ media and has always been part of China’s media reform. It needs to be noted that to document this historical process is not to blindly endorse the law. Instead, this research argues that China’s digital content regulations must be treated critically (in social and historical contexts), but not dismissively (e.g. by comparing them with an idealized Western model). The political and ideological conundrums behind China’s struggles to enunciate an alternative model of media and Internet governance are real and are historical. Law is but a small window through which to peek into them.

Clarke (1998–1999, 2003) argues that Chinese law is sometimes more like political declarations rather than rules to be enforced. While his argument is largely based on the Chinese Constitution, this research maintains that China’s digital content regulations can also be analysed as statements of policy or political concerns. They are often written to be ‘politically correct’, with less attention paid to their implementation. This no doubt leads to confusion and opens the door to arbitrary enforcement and abuse. At the same time, however, they serve as good raw material with which to analyse political and ideological changes. After all, what has been politically ‘correct’ or important in the 1980s or 1990s may not be so in the 2000s or early 2010s, and the similarities (and differences) in law across time and media platforms can tell things otherwise invisible or difficult to document. In addition, this research also echoes Creemers’ (2015) argument that the party state must return to the analytical foci of studies of Chinese law. The current contour of the law is the outcome of on-going wrangle between different political–economic players. Its uneven and contested growth sheds light on how the party state makes strategic and tactical moves in the face of challenges from below and beyond the Chinese borders.

The following discussion has five parts. The first looks at the unique role of digital law-centred research in understanding Chinese communications policy. The second outlines a brief history of the codification of media content rules. The third is an overview of four areas of digital content regulations that have seen significant developments, including libel, privacy, copyright and obscenity. The fourth centres on the more ‘political’ portions of the law that so far have remained ambiguous and unclear. The conclusion discusses domestic and international factors that may contribute to further development of the law.

Digital media law as an expression of policy concerns

Digital media laws and regulations are important components of China’s communications and cultural policy. This research focuses on legal documents that constitute the formal legal framework, including the Chinese Constitution, laws enacted by the National People’s Congress, regulations promulgated by the State Council, lower level statutes made by ministries and state agencies and Judicial Interpretations issued by the Supreme People’s Court (SPC) and the Supreme People’s Procuratorate (SPP). Under the market-oriented media reform and the rapid development of the legal system in the past few decades, what becomes ‘law’ and what remain ‘non-legal’ political statements can tell interesting things about Chinese media growth and governance. Moreover, the wording used in the statutes and judicial decisions is a unique form of articulation of policy and political–economic considerations. Reading them for not only what they say but also the context of their formulation reveals the shifting agendas and priorities of law and policymakers. In this regard, today’s digital media law is an important source to study new dynamics of media production and control because ‘law’ plays an arguably larger role in regulating digital media than broadcast and print media.

Law has not been at the centre of Chinese media policy until recently. Since the founding of the People’s Republic in 1949, the party state controlled and ran print and broadcast media as part of itself. Party organ papers like the People’s Daily assumed national authoritative roles and previously private papers like the Shenbao were taken over by the state. Television emerged in the 1950s and later developed as an integral component of the propaganda scheme. Before the Market Reform, media institutions and their members were on the Party’s team. They nevertheless needed to be administered, but it was mostly through internal mechanisms including promotion incentives, disciplinary measures and routine circulation of top-down instructions and orders. The law as a harsh exhibition of state violence aimed ‘outward’, not ‘inward’, as shown in the repression of the Xidan Democracy Wall (xidan minzhu qiang) and in the removal of the ‘four big freedoms’ from the 1982 Constitution. While members of the media might be penalized under the law for severe transgressions, generally, media institutions did not need elaborate rules in the form of law to tell them what to say and what not.

However, the ascending role of transnational and private capital in media sectors and the development of the Internet have introduced new dynamics. From outside of China’s press and broadcast media’s institutional set-ups, transnational investors pushed for a more comfortable investment environment, preferably similar to their home markets in the West. At the turn of the 21st century, Time Warner and News Corporation each negotiated a licence to operate a cable channel in Guangdong Province, and both negotiations involved back-and-forth bargaining with the Chinese government on rules of cable content regulation. ¹ In the 2000s and onward, US-based Internet corporations actively pushed for friendly and familiar business and legal environments around the globe, including China (Powers and Jablonski, 2015).

Almost at the same time, Internet growth since the 1990s provided technological possibilities for non-institution-based individuals to talk back to institutionalized media, all of a sudden making Smythe’s (1994) two-way television look real. Instead of dealing with a small number of activists and limited media channels (e.g. big character posters in the late 1970s), the party state found itself facing massive numbers of anonymous voice-makers in cyberspace with no easy way to tell friends from foes. Technological measures (e.g. the Great Firewall) alone apparently did not suffice, so the Chinese state opted to delegate Internet control to private entities ranging from Internet service providers (ISPs) to Internet cafes (Cheung, 2006). A ‘novel’ problem thus appeared: How could these ‘new comers’ master the trick of content management, a sophisticated and subtle process that has intrigued so many outside observers?

The Chinese state moved to tackle the problem through a two-prong strategy. It assumed (and probably correctly) that people working in private companies may not have the necessary training or loyalty as compared to state media employees. To cope with this, the state requires private businesses to hire people with state media experience. For example, the Internet News Information Services Management Rules in 2005 stipulates that a non-state online news service must hire at least five people, each of which has a minimum of 3 years of state news media experience, in order to be eligible for a governmental licence. ² According to Dong (2012), employees in private Internet companies are required to attend governmental training sessions in order to receive certificates for their work. Meanwhile, the state also attempts to enunciate the criteria of desirable/undesirable content publicly and in detail, serving both as a warning and as a guide to anonymous Internet users and to private businesses entrusted with content control duties. This constitutes the context in which digital content laws in China grow and develop. As a result, rules of digital content regulation are more detailed than their counterparts for print and broadcast media, the latter still relying on ‘old’ state media institutional set-ups for content management. When it comes to digital media, statutes, court cases and incidents of Internet policing provide ample information on the intentions, calculations and concerns of state actors, thus making law-centred research highly relevant to a reading of China’s communications policy.

The following strives to examine China’s digital content laws ‘in a way that makes sense of the observations’, instead of gauging them against an ‘ideal Western legal order’ (Clarke, 2003: 113). Perhaps contrary to general wisdom, China has made persistent efforts and rapid progress building up its repertoire of digital content laws.

Codifying rules of content control

Legal codes that detail what can be uttered and what not did not exist in China before the Market Reform. Of course, this is not to say that there was no media control but that such control was not expressed in the form of law. The building of the contemporary Chinese legal system started in the late 1970s and early 1980s with the making of the Criminal Law in 1979 and a new Constitution in 1982. The Criminal Law of 1979 proscribed penalties for counterrevolutionary instigations, divulging state secrets, libel, and profit-driven publication of obscene materials, thus serving as a deterrent for severe transgressions. In 1986, in a very sketchy manner, the General Principles of Civil Law stated that individuals have legal rights to protect their reputation and intellectual property, thus drawing the speech line at the outskirts of these civil rights. Through the 1980s, few statutes or court cases detailed the boundaries of speech and publication. ‘Legal’ rules were simply not important at a time when media institutions, from publishing, broadcast to film-making and exhibition, were all state-owned and run. Employees in state media were recruited (partly) according to how they familiarized themselves with political mandates and how likely they would be to stick to them. On-site training, workplace incentives and discipline, and frequent micro-management decisions from above not simply sufficed but actually worked better than ‘law’, which was handled by different state organs staffed by people inexperienced with the subtleties and complexities of propaganda and media politics.

Nonetheless, one statute stood out as a notable exception and shed light on the context in which media content laws were born. In 1982, the Ministry of Radio, Film and Television (MRFT) issued the Provisional Audiovisual Products Management Rules. It asked for a licence to produce and distribute audio-visual recordings and authorized the MRFT to review and approve imports of foreign products. While the detailed criteria of the MRFT review were not published, the Management Rules did offer some clues. Its Article 8 stipulated that ‘reactionary, obscene and other illegal materials must be handled by public security and judicial organs’, and its Article 10 stipulated that the customs must confiscate ‘anti-China, anti-Communist, anti-socialism, obscene, indecent, and religious propagandist’ materials, and it also banned the import of audio-visual products whose ‘content is very unhealthy (neirong jibu jiankang)’. Promulgated only weeks after the Constitution of 1982, the Management Rules was a pioneer in the regulation of media content. ³ As the first of its kind, it shared two key features with its successors. One, it had a dual-track system that treated ‘internal’ (state media) and ‘external’ actors differently. Two, legal rules were necessary only when ‘external’ actors were involved, including unlicensed domestic businesses and imports from abroad. For ‘internal’ actors, the ‘law’ was neither important nor desirable.

In 1990, the Provisional Cable Television Management Measures (also by the MRFT) developed the dual-track system and further defined ‘external’ actors. This is a statute that formally permitted state-owned non-media institutions to establish and run internal cable networks for their employees as employment benefits. Its Article 4 stated that state units (guojia danwei), including governmental organs and state-owned enterprises, could set up closed cable television networks as long as they had sufficient funding and proper equipment. These cable networks, which aggregated and transmitted a multitude of television programming, were not open to non-employees and were not allowed to produce their own programming. However, the MRFT was apparently worried that the people who managed these networks did not have training, experience and trustworthiness on a par with state media employees; thus, it felt the need to incorporate a word of warning. Its Article 9 stipulated that ‘reactionary’, ‘obscene’ or ‘detrimental to national security and social stability’ programming was ‘strictly prohibited (yanjin)’.

In 1996, the framework of media content regulation formally took shape in the Film Management Regulations. This statute was promulgated amid decentralization of film production, bulging private and transnational investments and the import of foreign (mostly Hollywood) movies in the early 1990s. Meanwhile, however, it was also preceded by a campaign to tackle ‘spiritual pollution’ on the big screen (Zhu, 2002). The Regulations formally recognized the legitimacy of private and transnational capital in China’s film industry and for the first time listed seven categories of undesirable media content. These are content that (1) jeopardize national unity, sovereignty and territorial integrity; (2) jeopardize national security, honour and interest; (3) instigate ethnical separation and disrupt ethical unity; (4) divulge state secrets; (5) promote obscenity, superstition or violence; (6) libel or insult people; or (7) are otherwise banned by state laws and regulations. Aiming at new players in China’s media sector, these seven categories as a whole represented the first systematic effort to codify rules of content regulation. They were later adopted (sometimes with slight changes) in a number of statutes governing different media, including the Internet.

China’s first piece of Internet regulation was formulated in 1993 (Qiu, 2000). Early statutes often had very sketchy provisions regarding Internet content. In 1997, the Ministry of Public Security issued the Management Measures of International Connection Security Protection for Computer Information Networks, in which Articles 4 and 5 had very similar wording to the Film Management Regulations. At the turn of the 21st century, the ‘basic law’ of Internet governance in China expanded on these seven categories and defined the general principles on digital content control.

In 2000, the State Council, the central governmental body that oversees all ministries and agencies, promulgated the Internet Information Services Management Measures (IISMM). In Article 15, the IISMM lists nine categories of prohibited content, including those that

These nine categories became the basis of digital content regulation in China. The Telecommunications Regulations of 2000, promulgated by the State Council together with the IISMM, has a verbatim section in Article 57. In a more recent example, the Provisional Internet Culture Management Rules of 2011 has very similar stipulations in Article 16, the only difference being an additional section that bans cultural products that ‘jeopardize social morality or national cultural traditions’.

These 9 (or 10) categories of prohibited digital content have apparent problems. Some of them have bent in political winds at the time. For example, the section on ‘evil cult and feudal superstition’ clearly echoes the crackdown of ‘falun gong’ starting in the late 1990s. Some others are difficult to understand. For example, what does it mean when it says that online postings cannot ‘oppose basic principles of the Constitution?’ Is it a ban to criticize the Constitution, and doesn’t such a ban ‘oppose’ the Constitution, which explicitly protects freedom of speech and the right to criticize the state and the government? Nevertheless, taken as a whole, they function as the umbrella provision for digital content regulation in China. They were born after a long endeavour to articulate what was desirable, tolerable or intolerable in the Chinese media space. While it is easy to point to their problems, the real challenge is to understand how they constitute and reflect policy changes and continuities on media content and digital technology. Following the IISMM of 2000, digital content regulation in China made significant progress. Some areas of the law have grown quickly with elaborate rules, while some others remain ‘under-developed’. The following will discuss the rapidly growing areas first.

Rapidly growing areas of law: Libel, privacy, copyright and obscenity

Laws of libel, privacy, intellectual property and obscenity are indispensable components of media and digital content regulation. The IISMM (with its nine categories of prohibited content) bans the publication and distribution of anything that is obscene, libellous or otherwise infringing on legal rights, and thus explicitly places all of them under its wing. Chinese law has made significant progress in laying out the rules in these four areas. Given space constraints, the discussion below only provides a rough sketch.

Civil wrongs on the Internet, including infringements of libel and privacy, are high on the agenda of Chinese lawmakers. The 2000s saw a steady growth in both legislative initiatives and judicial enforcements regarding privacy (Xue, 2010), and a number of provincial and local statutes were made to regulate the publication of personal information on the Internet (Ong, 2011, 2012). In 2008, a Beijing court recognized the right to privacy on the Internet in a high-profile case on the so-called human flesh search (renrou sousuo) (Cheung, 2009; Ong, 2012). In 2009, the National People’s Congress (China’s supreme legislature) passed the Tort and Liability Law. Out of its 91 articles ranging from product liability to auto insurance, Article 36 is the only one about the media, which sets forth a notice-and-take-down clause for ISPs. Under the law, if a private party sends a notice to an ISP regarding postings on its site that damage reputation or infringe on privacy or other legal rights, the ISP needs to take the content down to avoid liability. In 2014, the SPC followed up with a Judicial Interpretation containing detailed rules on adjudicating Internet libel and privacy cases. ⁴ Among other things, this Judicial Interpretation clarified on the scope of online privacy. When a general definition of privacy (i.e. applicable beyond digital media) was yet to take shape in Chinese law (Wang, 2012), the law of online privacy was clearly ahead of its time.

Criminal libel has been part of Chinese law for decades, but its application to digital media seems to have grown out of proportion. In 2013, the SPC and the SPP jointly issued a Judicial Interpretation on criminal prosecutions of libel and other crimes on the Internet. It went to great lengths to explain how and when libellous stories online might reach the threshold of criminal offence. Parts of the criteria were quantitatively specific, for example, 500 reposts/retweets or 5000 views. This Judicial Interpretation had multiple implications, and at least part of it intended to curb distribution of ‘un-official’ news stories. Nonetheless, it indicates that the state is anything but shy in drawing lines in cyberspace in the name of law. A more recent development took place in 2015 when the newly amended Criminal Law stipulated in Article 246 that the court may request the police to assist individual litigants to gather evidence in cases of Internet libel. This provision’s problem notwithstanding, it clearly shows the lawmakers’ attention to Internet libel laws.

Copyright is another area in which digital media regulations developed very quickly. As early as 2001, China amended its Copyright Law to protect copyright control in digital networks. The law bore distinct ‘non-Chinese’ marking in its definition of the right to transmit through the Internet, which was cloned from the WIPO (World Intellectual Property Organization) Copyright Treaty’s Article 8:

… the exclusive right of authorizing any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.

Its awkwardly translated language stands out among provisions in the Copyright Law and Chinese laws in general, which are always written in a more straightforward manner and with Chinese syntax. The Copyright Law of 2001 also bans the circumvention of copyright protective technology and the alteration of digital rights management information, closely on the heels of the Digital Millennium Copyright Act in the United States. In 2006, the State Council promulgated the Information Network Communicative Rights Protection Regulations, which detailed rules of copyright protection in digital media. In 2013, the Regulations were amended to raise the fine for violations. Starting from 2005, the National Copyright Administration, the National Internet Information Office, the Ministry of Industry and Information Technology and the Ministry of Public Security launched an annual campaign to tackle copyright infringements on the Internet (Zhang, 2015). Coded ‘Sword Online (jianwang xingdong)’, the campaign combed through the Chinese Internet, closed down websites, imposed fines, made arrests and jailed lawbreakers (see The National Copyright Administration of China, 2014). In any case, the Chinese state is not hesitant to articulate its position, craft laws and hand down punishments.

Obscenity and indecencies are also heavily regulated on the Chinese Internet. Chinese law started to define obscenity and indecency as early as 1985. In 1988, the Administration of Press and Publication (APP) issued the Provisional Rules concerning Determination of Obscene and Indecent Publications, which provided definitions for obscenity (yinhui) and indecency (seqing), drew a line between them and stated that the APP was the only governmental agency authorized to identify obscenity and indecency (Wu, 2000). ⁵ During the 1990s and later, market-oriented growth and new technology in the media sectors took off concurrently with a dramatic increase in sexually explicit materials in different media forms. In response, the Chinese state produced a large number of laws. A simple tally of official stories in the People’s Daily between 2000 and 2009 counts 18 such laws, regulations and ordinances (Liang and Lu, 2012: 119). In 2004 and 2010, the SPC and the SPP jointly issued two Judicial Interpretations on the criminal prosecution of production and distribution of obscenities on digital and mobile networks. These two Interpretations added details to provisions in the criminal law regarding their application to cyberspace, which (similar to the Judicial Interpretation on criminal libel online) contained quantified criteria of criminal violations. The effectiveness of these laws and governmental campaigns against online pornography may be questionable (Liang and Lu, 2012), but it is safe to say that significant, and productive, rule-making efforts have been made in a short period of time.

In the above areas of digital content regulation, the Chinese state has been actively producing legal rules and provisions. The legislative (People’s Congress), the government and its agencies as well as the judicial organs (the SPC and the SPP) have all been extensively involved. Again, many of these laws and regulations have problems and their enforcement can be inconsistent, arbitrary or abusive. However, their growth is in sharp contrast to some other areas of digital content law. For example, out of the nine categories of prohibited content in the IISMM, the first category remains a stand-alone section with no further statutes, Judicial Interpretations or court cases to back it up since its birth in 2000. Nevertheless, it has been incorporated into each and every piece of statute on digital content and has always stood at the top of the list. This is the section that bans content that ‘oppose[s] the basic principles of the Constitution’. It is not the only ‘vague’ legal provision, but its ambiguities and conundrums are reflective of other ‘politically sensitive’ areas in China’s digital content law.

Ambiguous restraints on political speech

To ban online publications that ‘oppose the basic principles of the Constitution’ makes little sense as law. First, the Chinese Constitution does not specify what its ‘basic principles’ are; thus, it is unclear what the law seeks to protect. Second, the Constitution explicitly protects the right to free expression and the right to criticize government officials. Thus, to disallow anything that ‘opposes’ the Constitution in itself ‘opposes’ the ‘basic principles’ of the Constitution. Nevertheless, it is of topmost importance in every piece of statute on digital content, including the IISMM, Internet Bulletin Board Services Management Rules (2000), Provisional Internet Publication Management Rules (2002), Internet News Information Services Management Rules (2005) and Internet Audiovisual Programming Services Management Rules (2007). Unlike laws of libel, privacy, copyright or obscenity, which have been supplemented by other statutes or Judicial Interpretations, this section remains by itself. It is of great importance, but it is never elaborated in the form of law.

This section’s ‘loneliness’ is not alone in the nine categories of prohibited content in Article 15 of the IISMM. For example, Section 3 regarding speeches that ‘harm national honor and interests’ also lacks clarification or support from statutes, court cases and Judicial Interpretations. Section 4 on content that ‘instigate[s] ethnical hatred and discrimination, disrupt[s] ethnical unity’ does not fare any better either. In general, Chinese law is practically silent when it comes to provisions that target digital content that directly addresses political topics. Since first articulated in the Film Management Regulations of 1996, this part of the law has not been updated for almost two decades, whereas other areas of law and the media sector have been through tremendous growth and transformation. This is not due to lack of political will to rein in cyberspace or because of the negligence of Chinese lawmakers; it is more of a deliberate/forced choice. To understand it, we will need to first situate the making of the law in its historical and institutional contexts, rather than importing an absolutist First Amendment stance to conveniently denounce any and all restraints on freedom of speech.

As discussed earlier, contemporary China’s efforts to articulate legal rules for media content persisted along with the market-oriented media reform, during which the import of Western media products and capital and the rise of the domestic private sector essentially reversed the party state’s advance in the media sector since 1949. The emergence of media content laws was largely a reaction to the lessening of state control and the weakening of media’s role in the political cause. It is not coincidental that the earliest laws and regulations all originated from a governmental agency overseeing mouthpiece state media, the MRFT (predecessor of today’s State Administration of Press, Publication, Radio, Film and Television). When the MRFT’s ‘traditional’ role as the state media manager was (over-)stretched to cover non-state media, the new law crafted by the MRFT was likewise stretched to perform a role expected from ‘old style’ media management. As a matter of fact, drafters of the law at the MRFT are probably less familiar with judicial mechanisms on what is not allowed and are more at ease with providing guidelines on what is to be done through the media. This was the context in which digital content law was loaded with expressions of abstract principles and expectations.

It is in this sense, however, that the lack of elaborated and explicit political statements in law is noteworthy. Chinese lawmakers have not been shy to spell out non-liberal stipulations, evidenced by the ‘political sheen’ (Fu and Cullen, 1998: 21) in the Judicial Interpretation on Internet rumours. Nor do they always shun codifying the law prematurely, having proven their determination to make new rules even if it means they have to clone foreign copyright codes. Due to space constraints, this article cannot explore this question fully, but nonetheless ventures several possibilities on which to ponder.

First, the IISMM provisions are not really ‘vague’, but manifest a continuous watering-down of political explicitness from the Constitution down to lower level statutes. The IISMM bans contents that ‘oppose [the] basic principles of the Constitution’. It sounds neutral, but is vague and does not make much sense. The Constitution, on the other hand, is much more specific. It stipulates that China is a socialist country led by the working classes (Article 1). Its Preamble states that the political system established through the Chinese revolution is constructed historically and is fixated in, and protected by, the Constitution. In addition, it explicitly claims the Party’s leadership, Marxism–Leninism and Mao Zedong Thoughts, people’s democratic dictatorship and the socialist path to be the cornerstone of the political–legal system. Laws that come one level down the Constitution, that is, those enacted by the People’s Congress and its Standing Committee, tend to be less explicit. For example, the Decision by the Standing Committee of the National People’s Congress concerning Maintaining Internet Security in 2000 stipulates against ‘instigations to overthrow the state and the government and to topple socialism (shandong dianfu guojia zhengquan, tuifan shehui zhuyi zhidu)’ in one brief sentence only. When it comes further down to regulations promulgated by the State Council and ministries, including the IISMM, any political or ideological explicitness is wiped out by the fuzzy reference to the ‘basic principles of the Constitution’. It is safe to argue that the meaning of this provision is actually pretty clear, but lower level statutes simply do not incorporate and confirm (let alone elaborate) stipulations from laws of a higher order.

It needs to be noted that the political/ideological vagueness of the law is in line with the political vagueness of China in the past two decades. Starting in the early 1990s, China has adopted the ‘no-debate’ policy, that is, no public debate on the political nature (capitalist or socialist) of China’s reform and development. Initiated in the aftermath of Tiananmen Square and concurrently with the acceleration of market-oriented reform, it gave China’s economic growth and social transformation an amorphous outlook. This was the historical context in which the Film Management Regulations (1996) and the IISMM (2000) were promulgated. A notable challenge to the ideological ‘vagueness’ in Chinese law came in the debate over the Property Law in 2007, but digital media law did not seem to be affected. As a matter of fact, the wording in lower level digital content regulations in China today is almost completely ideologically ‘neutral’ – should the political system turn explicitly non-socialist, the nine categories of prohibited content in the IISMM would automatically fit in without even the slightest change.

Seen from a different perspective, perhaps the lower level statutes are not simply refusing to reiterate the stipulations from the Constitution or higher level laws, but are at a loss to translate abstract principles into concrete rules and have largely failed to relate ultimate political ideals and goals to real-life scenarios and experiences. It is the speechlessness of lower level statutes, court cases and legal research that creates an impression of ‘vagueness’, which poses a sharp contrast to the Constitution. First taking shape in the 1950s, the Constitution’s explicitness comes from its recounting of Chinese history starting with China’s encounter with Western capitalism in the mid-19th century. Its lines are drawn from a century’s revolutionary struggles and are marked by confidence in a historically constructed and popularly supported goal of development. Today’s lawmakers, however, are probably uncertain and resourceless on how to make sense of China’s changes since the late 1970s. Initiated in the aftermath of the Cultural Revolution, the Market Reform hit the road along with repression of bottom-up political participation in the late 1970s and accelerated with the no-debate policy in the early 1990s (Meisner, 1999). Critical conjunctures that define China’s path of development, including the Cultural Revolution and Tiananmen Square, were never subjects of widely participated and open debates. Given the dearth of serious contemplations on China’s immediate past, law as political/declarative statements has very little to draw upon except, perhaps, the languages of social control in the name of ‘socialist spiritual civilization’ (Dirlik, 2005). Here, Chinese law’s ‘speechlessness’ reflects simultaneously an awareness of the importance of a political–legal system based on Chinese experiences and an incapability to depict the specifics of such a system. Can we, or to what extent can we, argue that it also manifests a lack of appropriate language to articulate developmental visions under the ‘political incoherence’ between the existing political–economic structure and a historically constructed path of social and national development (Dirlik, 2005; Lin, 2006)?

Conclusion

To reiterate, China’s digital content laws and regulations are not monolithically ‘vague’, but are very specific and detailed in some areas and ideologically amorphous in some others. As a matter of fact, law can never be ‘clear enough’ to be free from case-by-case analyses and clarifications. Statutes or precedents can only outline the principles and must be supplemented by lower level ordinances, court decisions and various forms of interpretations, which are all conditioned by specific historical and social circumstances. Labels such as ‘vague’ and ‘lack of clarity’ always implicate a comparison and in effect mean ‘vaguer than’ or ‘different from’ an accepted set of practices and thinking. Such a comparison appears to be ‘neutral’, but in effect affirms the undergirding assumptions and shields them from scrutiny.

Peerenboom (2005) maintains that many differences between China and the West regarding individual and political rights are indeed between liberal positions and non-liberal positions, and many observations of China tend to ‘assume an expansive and liberal interpretation of civil and political rights’ (Peerenboom, 2005: 98). It is worth contemplating if (or how) this ‘expansive and liberal interpretation’ provides theoretical and moral support for labelling Chinese digital content laws as ‘vague’ and ‘ambiguous’. Of course, this is not to praise Chinese law or to blindly endorse any non-Western positions, but to argue for a critical approach that takes full consideration of historical contexts of legal transformation and rejects a simplistic comparison with an idealized Western legal order.

China’s political and legal system today is born out of a revolutionary and socialist past. The Constitution and the legal framework’s logic and legitimacy cannot be cut loose from this century-long history (Zhu, 2015). How the continuity between the present and the past is conceptualized will largely shape how and if some political/ideological clarity can appear through further development of the law. Contemporary China’s digital content laws originated from legal codes crafted by supervisors of state media (in particular, the former MRFT) as words of warning and guidance for media producers outside of their traditional scope of control. The history and origin of these laws and regulations must be taken into account to make sense of their political and moral tones and how they are inadequately informed by, and relevant to, judicial practices. Further developments in digital media laws will continue to depend on larger social and political–economic transformations as well as institutional changes in media governance, rather than independently or non-politically.

Internationally, China has been under pressure to enunciate its digital content laws not only more ‘clearly’ but also more in line with Western norms. In its struggle for a larger role in the global governance of the Internet (Hong, 2015; Shen, 2014), China has been very vocal in technological standardization and resource allocation, but not in public policy (Liu, 2012). It will be interesting to observe how this ‘lopsided’ position continues to impact China’s bid for more power in global network governance. A recent bill under review at the National People’s Congress seems a small step away from ambiguity. The draft national security law, published online in April 2015 for public comment and feedback, explicitly upholds socialism and the Communist Party’s leadership, calls for a socialist value system and inheritance of traditional culture and emphasizes China’s cyberspace sovereignty. In the aftermath of Edward Snowden and against the larger context of a ‘real cyber war’ over Internet policies reflecting Western legal, political and social preferences (Powers and Jablonski, 2015), the draft law nevertheless drew criticisms from Western media for ‘corralling the influence of Western institutions and ideas’ (Wong, 2015). It is foreseeable that more criticisms and pressure will surface if China is to further articulate non-Western conceptualizations of political speech and Internet regulation in the form of law.