Challenged in China

2. Although not explicit, legal threats to journalists persist

By Madeline Earp

Even as China’s virtual landscape buzzes with criticism of social injustices, government policy, and propaganda directives, independent journalism and expression are still perceived by the Communist Party as explicit political threats. Authorities also exploit vague legal language to prosecute dissenters based on published content, or bypass due process altogether, holding critics without charge or without notifying family members.

In 2010, Ji Pomin, son of a Communist Party revolutionary, sent a text message to hundreds of contacts inquiring about the health of Jiang Zemin, inadvertently sparking rumors that the former Chinese president—still a powerful political player—had died. A couple of days later, Ji was called to the street below his Beijing apartment by secret police masquerading as delivery men, according to an interview Ji gave John Garnaut of The Sydney Morning Herald. They pulled a hood over his head, drove him to a remote villa, and questioned him for hours about his view of Jiang—including his assertion, posted online in 2003, that Jiang had fabricated a revolutionary background to get ahead in the party hierarchy, according to Garnaut. (Jiang’s family has denied this claim, according to Garnaut.) Recipients of the text message had their homes ransacked, Garnaut reported.

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Ji, who is descended from party royalty, was released. The elderly historian who sparked Ji’s suspicions about Jiang’s background, however, was not so lucky. In late 2010, 72-year-old Lü Jiaping disappeared from public view. In 2012, CPJ learned he had been sentenced for inciting subversion of state power in May 2011, along with his wife and a close associate, Jin Andi. A translation of Jin’s unsuccessful appeal verdict lists articles Lü published as early as 2000 and as recently as 2010, when the three were apparently detained. The appeal document reveals the steps the public security bureau took to indict him, including email data from providers Sina and Wangzhiyi, and analysis of the reach of his articles:

The 3rd Brigade of the Beijing Public Security Bureau’s Internet Security and Defense Office discovered on the international Internet an article by “Lü Jiaping” on a website with the URL entitled “Lü Jiaping: Why the Lhasa Riot Incident Was not Stopped Ahead of Time.” […] On September 9, 2010, there were four pages on the international Internet linking to posts or reposts of this essay, and it had been clicked on 2,768 times, and had 12 responses.

Lü had ruffled official feathers in the past: In 2001, his son Hu Dalin was interrogated for helping to post his articles online. But somehow in 2010—perhaps because of growing interest in his reporting on Jiang—he became a target for prosecution. And the authorities had a decade of online activity to produce as evidence against him. Family and friends were not notified of Lü’s detention, according to international news reports.

Advocates of free press and expression often try to analyze China’s imprisoned journalists to determine which lines cannot be crossed. But as Lü’s case illustrates, it’s possible to cross the line and violate content restrictions repeatedly, even for years at a time, without triggering criminal charges. Instead, the line is something prosecutors can lay down retroactively to turn expression into a criminal act.

Under the Chinese legal system, criticism of the state is, in and of itself, an attempt to influence populations. Incitement, in the statute on anti-state activity levied against Lü, is defined as “spreading rumors or slanders or any other means to subvert state political power or overthrow the socialist system,” Hong Kong-based China legal expert Joshua Rosenzweig told CPJ. “The key part is the ‘spreading rumors or slanders.’ I’d say that ‘inciting others’ is not really all that important, practically speaking, because it is not necessary for the prosecution to prove that anyone was incited to do anything—or, if incited, that [the suspects] took steps to do [it].”

In 2013, the party does not uniformly criminalize critical journalism. Yet digital information leaves a trail that can be mustered—even 10 years after publication—as justification for silencing a voice that the party deems dangerous to its rule.

The Chinese government did not respond to CPJ’s written request, sent via the Chinese Embassy in Washington, D.C., to comment for this report.

During the “golden decade” of rule by Hu Jintao and Wen Jiabao, the pair oversaw expanded discussion of political and human rights issues, but the outward signs of openness gave the Communist Party cover to continue, and even step up, repressive activities. For example, the state council published its first National Human Rights Action Plans, for 2009-2010 and 2012-15. The reports lacked benchmarks to bring the country in line with international law, but served to deflect some criticism. As state news agency Xinhua reported, “An action plan for human rights protection can be regarded as a sign that the state attaches great importance to human rights issues.”

'Untitled.' As one of China's leaders sits on his throne, an imprisoned critic depicts him as a clown. (Hexie Farm/Crazy Crab)
‘Untitled.’ As one of China’s leaders sits on his throne, an imprisoned critic depicts him as a clown. (Hexie Farm/Crazy Crab)

The language on free speech was cast in a passive construction as the “Right to be Heard,” which seemed to sidestep the issue of whether expression is a right. Furthermore, the plans referred to journalists’ “legitimate rights” to report: The word “legitimate” introduced a distinction between rights that the state recognized and universal human rights—which by extension, might be considered illegitimate.

Meanwhile, China’s record of imprisoning journalists and writers fluctuated during Hu and Wen’s rule, but did not transform. In its annual census, CPJ documented 39 journalists behind bars in 2002 and 2003, and 32 in 2012. In 2010, China was not the world’s sole worst jailer of journalists for the first time in 10 years—it shared that distinction with Iran. By 2012, China was the third worst, behind Turkey and Iran. But this was more a reflection of worsening conditions for the press in the latter two countries than an indicator of improvement in China. Anti-state charges—including subversion or inciting subversion of state power, passing state secrets, instigating riots, or inciting separatism—were used to jail the majority of journalists jailed in China over the decade, CPJ data shows.

In seeking to explain why the Communist Party permits some outspoken criticisms and deems others a criminal offense, some China specialists argue that critique is permitted as long as those articulating it are not, consciously or otherwise, likely to rally anti-government activity.

A proponent of this view is Gary King, the Albert J. Weatherhead III University Professor at Harvard University, who co-authored a 2012 study on online media censorship in China. The study asserts,“Contrary to previous understandings, posts with negative, even vitriolic, criticism of the state, its leaders, and its policies are not more likely to be censored. Instead, we show that the censorship program is aimed at curtailing collective action by silencing comments that represent, reinforce, or spur social mobilization, regardless of content.” According to the findings, the goal of Chinese censorship “is to reduce the probability of collective action by clipping social ties whenever any localized social movements are in evidence or expected.” King and his colleagues did not pursue the study of “clipping social ties” offline, to gauge the likelihood that the authors of censored posts would be arrested. King told CPJ, “Our hypothesis would probably be that those who try to move populations rather than those who are critical of the state are more likely to be the target for legal action.”

The changing faces of China’s imprisoned journalists lend weight to the assertion that the state fears activist media more than those in the mainstream profession. Of the 32 journalists jailed at the time of CPJ’s 2012 census, at least 19 were ethnic minorities—Uighurs, from the Xinjiang Uighur Autonomous Region, who were arrested after rioting in the area in 2009, and Tibetans, from the Tibetan Autonomous Region and Tibetan areas of western China, following unrest there in 2008. The number of ethnic-minority journalists in jail climbed for the fourth consecutive year.

The arrests of many of the 13 ethnic-majority Han Chinese journalists in jail can also be traced to a crackdown—sometimes pre-emptive—on organized demonstrations of dissent. For example, Liu Xiaobo was detained in 2008, the day before the online release of his Charter 08 petition for political reform, although he was ultimately sentenced for articles on other subjects (Liu was awarded the Nobel Peace Prize in 2010). Tan Zuoren, an environmentalist in Sichuan, worked with families to document the children killed when school buildings made with cut-price materials collapsed during the 2008 earthquake. He was arrested before the release of his findings, which he had scheduled to coincide with the first anniversary of the tragedy; his sentence was for an eyewitness account of the 1989 Tiananmen Square crackdown published overseas before the earthquake took place, CPJ research shows. And Chen Wei was among dozens of writers and dissidents rounded up after anonymous Internet users called for a “Jasmine revolution” in China. While others detained at this time were released and kept under surveillance at home, according to CPJ research, Chen’s articles about democracy published on internationally hosted websites led to a nine-year sentence for inciting subversion.

Still, in order to sentence Chen, Tan, Liu, and others for incitement, there was no need, under Chinese law, to show that they participated in, or inspired others to, anti-state action—just as with Lü Jiaping. “The idea seems to be that expression carries the potential to lead others to doubt the political order and acting to bring its end,” legal expert Rosenzweig said.

Police and security agents who want to silence journalists enjoy another legal advantage. Vague statutory language allows them to detain individuals at home or at secret sites instead of official detention centers—and without the need to inform families or legal counsel.

House arrest and secret detentions have both arguably become more visible in the Internet age. Blind legal activist Chen Guangcheng broadcast video of security agents encircling his home in 2011, while Associated Press journalists dodged a security detail to interview Liu Xiaobo’s wife, the artist Liu Xia, in 2012. “Residential surveillance without notification has been in existence for some years,” Chinese legal scholar Flora Sapio told CPJ. Now, evidence is accumulating in the public domain. Internationally renowned artist and documentarian Ai Weiwei was missing for 43 days in 2011 before his wife was permitted to visit him in a location that was neither the house they shared, nor a formal detention center. Besides Ai, writer Yang Hengjun and lawyer and blogger Xu Zhiyong also disappeared for a few days each that year, drawing local and international attention to the abusive practice. “When everyone thought I had been kidnapped, they all assumed it was by the government—doesn’t that tell you something?” Yang commented on his reappearance.

The attention may have added momentum to a move to strengthen the authorities’ legal powers in an otherwise gray area. In March 2012, the National People’s Congress amended the Criminal Procedure Law. Article 73 of the amendment allowed for suspects deemed a threat to national security to be held in undisclosed locations. Police are required to inform a suspect’s family whether the detention is at a residential site or not, though some details, including where and why the suspect is being held, can remain classified. (Observers praised some aspects of the amendment, such as a requirement to tape interrogations in death-penalty cases to prevent forced confessions, according to international news reports.)

The amendment maintained the original law’s obscure language, which renders it open to abuse by police and security agents. Such abuse is hard to monitor. Covert detentions are classified as state secrets, according to a 2006 publication by former Chinese police officer and legal expert Ma Haijian. While police keep data relating to residential surveillance, Sapio told CPJ, they are not public, and the data “would not tell us whether notification was provided,” or in other words, how covert was the detention. Furthermore, “In practice China’s law enforcement officials frequently twist even clear legal language to their convenience, and sometimes act totally outside or contrary to the law,” as legal scholars Jerome Cohen and Yu-Jie Chen wrote in the Hong Kong-based South China Morning Post in September 2012.

Individuals can literally disappear when police do not fulfill their legal obligation to register detentions. News of Lü Jiaping’s and Jin Andi’s imprisonment broke only in February 2012 when Lü’s wife, Yu Junyi, was released from her home, where she had been held since Lü was detained, according to CPJ research. Journalist Gao Yingpu’s wife signed a written promise not to publicize her husband’s 2010 arrest for criticizing former Chongqing party secretary Bo Xilai’s anti-corruption campaign in online postings; he never obtained legal representation or an appeal as a result, and his imprisonment for endangering state security only came to light in an online appeal by a former classmate almost two years later. His family and friends believed he was working in Iraq. Gao, Lü, and Jin were still in prison at the time of CPJ’s annual prison census on December 1, 2012.

Details of these neglected cases came to light just as the criminal law amendment was adopted. Unusually, the draft law was made available for public feedback before it was adopted, and was rigorously assessed in the Chinese media. Over 80,000 people responded, and more repressive aspects of the amendment were watered down as a result, according to The New York Times; earlier drafts would have allowed police to hold suspects for up to six months without notifying family. But the consultative process was far from perfect. Much of the criticism called for the elimination of secret detentions, not the adjustment to the notification requirements that made it into the final amendment.

One notable change over the decade of Hu and Wen’s rule is that the prospect of criminal charges against traditional journalists shrunk considerably. In 2002, nine professional journalists were behind bars. Ten years later, by contrast, none of the 13 Han Chinese journalists in jail had worked in traditional media; all were charged for online writings published overseas.

January 2004 saw a set of emblematic arrests: Li Minying, former editor of Guangdong province’s respected newspaper Southern Metropolis Daily, was arrested and sentenced on trumped-up corruption charges along with the Daily’s manager, Yu Huafeng; another editor, Cheng Yizhong, was also detained for five months. The paper had broken a series of stories that embarrassed local officials, and the sentences were widely considered to be payback.

Nowadays, to keep mainstream journalists in line, propaganda officials are more likely to rely on internal reprimands—including fines, enforced leave, and demotion or dismissal. Early in 2011, the publisher of Southern Metropolis Daily, the Southern Media Group, forced veteran columnist and editor Zhang Ping to resign after coming under pressure from propaganda authorities over his columns on sensitive topics such as political reform. Zhang had been demoted and shuffled between publications in the past. “Many times I have been told not to write and that if I agreed I would be able to get more benefits,” he told the U.K.’s Guardian at the time of his dismissal.

Today’s different policies toward professional journalists and their more activist colleagues have helped drive a wedge between the two communities. Professional journalists rarely use domestic media outlets to highlight the cases of jailed freelancers, though some do so on personal social media accounts. One exception has been sympathetic domestic press coverage of blogger Chen Pingfu, a former factory worker and teacher who turned to playing his violin on the street after he lost his job and struggled to pay for health care and other expenses. Chen was charged with anti-state crimes for his online chronicles of injustice, including rough treatment by police. The coverage may have influenced prosecutors, who dropped the charges in December 2012, according to international news reports.

Meanwhile, as long as the authorities exploit vague legal language to criminalize expression, mainstream journalists remain vulnerable.

Against this backdrop, international media and press freedom advocates closely watched an unprecedented revolt by journalists at another paper in the Southern Media Group, Southern Weekly (sometimes translated as Southern Weekend), in early 2013 when local censors rewrote a New Year editorial promoting political reform as a message supporting the Communist Party. The staff sent open letters calling for the ouster of the provincial propaganda chief, Tuo Zhen, and went on a short-lived strike. Supporters rallied outside their Guangzhou offices with placards calling for press freedom; a dozen protesters were detained. Some other mainstream Chinese news outlets published messages in sympathy, and people from ordinary Internet users to celebrities took up the cause on social media.

The Southern Weekly demonstration was an unusual instance of journalists and activists acting, if not in concert, at least in parallel. Increasingly, grassroots reporting online pushes the agenda of traditional media; and commercial concerns spur newspapers and broadcast outlets to dig deeper in order to compete. If journalists and activists acknowledge and learn from each other, covert law enforcement activities and censorship could get the publicity needed to help change the minds of the Chinese public and sway leaders to reform policies.

Madeline Earp is a research analyst at Freedom House, where she covers Internet freedom in Asia for the Freedom on the Net report. Previously, she was senior researcher for CPJ’s Asia Program. She has studied Mandarin in China and Taiwan, and graduated with a master’s in East Asian studies from Harvard.