Human Flesh Search - An Anti-Corruption Tool?
|Jan 9, 2009|
Here is my translation of the commentary:-
“The most recent success story of human flesh search is the removal of Nanjing city Jiangning district housing administration director Zhou Jiugeng (周久耕) from his position. Zhou’s empty pledge that some developer would be investigated for selling properties at prices below cost had angered some netizens, who subsequently revealed (through human flesh search) that Zhou had been smoking expensive cigarettes that cost over 1,000 yuans a carton and wearing a luxury watch worth some 100,000 yuans (see ESWN’s translated report). Before the start of the new year, the Jiangning district party committee announced that Zhou had made inappropriate remarks in public and that he had misused public funds to indulge in extravagant spending like buying expensive cigarettes and therefore it decided to relieve him of his duties. It also said that netizens’ other allegations about Zhou were being investigated. Although this outcome is still a long way from ushering in a scrupulous system, netizens nonetheless feel rather encouraged, to the point of daring to say ‘let the human flesh search machine take up the duty of fighting corruption’.
Meanwhile, another piece of news has emerged saying that the National People’s Congress has started to examine in sub-groups the draft of the Tort Liability Law, a key part of which is to name as accused any human flesh searcher who infringes on others’ right to privacy. Prior to this, the Beijing Chaoyang district court had passed a judgment on the first human flesh search case related to the ‘death blogger’, saying that when a person’s private information such as his real name and address has been divulged via human flesh search, the publishing website will be liable to charges for tort if it does not delete that information at once.
One big question mark immediately pops up: when netizens use the human flesh search machine to dig out officials’ corrupt deeds, will they be accused of infringing on the officials’ right to privacy and become liable to tort charges? There are people who even believe in a conspiracy theory that it is exactly because human flesh search makes officials feel so threatened that they have insisted on including human flesh search in the Tort Liability Law and spurring its legislating process. In the ‘death blogger’ incident, netizens found out from the blogger’s posts that she had committed suicide because her husband had a mistress and began digging up the husband’s identity through human flesh search and attacking him on the internet. In its judgment, the court did not make a differentiation between public and private affairs. Thus by extrapolation, Zhou Jiugeng has a right to sue netizens for infringing on his right to privacy.
In my view, human flesh search is not just a simple act of data gathering – it is also about a dissemination of information to the public, and further research and then further dissemination. In short, it is an act of media investigation. Therefore, human flesh search should follow a ‘public interest principle’ like the media. In other words, it should be respectful of personal privacy while on the other hand should also be critical about the exercise of public authority. There is an inherent common logic in both these aspects. Being critical of the ‘public’ aspect is equivalent to being respectful of the ‘private’ aspect, because the ‘public’ authority is in fact a result of concession by the ‘private’. Any abuse of power by the ‘public’ signifies an infringement on the ‘private’ right.
The Tort Liability Law is one part of Civil Law. Its purpose is to protect a citizen’s civil rights from being encroached upon. Yet it is being interpreted by netizens as a protective tool in favor of corrupt officials – this cannot be anything but ironical! Have netizens misinterpreted the law then? Things are not as simple as they seem. From past experience, netizens know very well that it is very difficult for ordinary citizens to sue on the grounds of ‘reputation right’ being infringed, but officials can always use such grounds to arrest their critics.
The delineation of public and private rights is a cornerstone question, which is laid at the foot of the various social problems and legal relationships. If this question is not solved, the public authority will be able to abuse the law and regulations. Once the law is abused, there is no talking about trust in the rule of law. However, discussion of this crucial question has been shelved time and again.
I don’t know how the order of legislating draft bills is determined. Those in authority seem to think that whatever is simpler and thus can be better prepared should be legislated first. But I feel that the criterion for deciding the priority of legislating should be how important and necessary a piece of legislation is. Before the Tort Liability Law is used to penalize human flesh searchers, two pieces of legislation should already be in place: one is the law governing officials’ declaration of wealth and assets and the other is the Personal Information Protection Act. With these two pieces of law, the knot of human flesh search can be untied. Netizens would no longer ‘misunderstand’ any law. If my memory serves me right, citizens’ call for legislation involving officials’ declaration of wealth and assets emerged long before that for the Personal Information Protection Act or the Tort Liability Law.
For over a decade, people have been asking: why can’t officials publicly declare their wealth and assets? Those in authority would only use the excuse that it does not fit well with China’s situation. If this is the case, then I would say that using human flesh search to fight corruption fits well with China’s situation and should be promoted at all costs.”
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