III. Privacy issues
Chinese citizens are increasingly asserting their privacy rights. Several privacy lawsuits have been filed in Chinese courts. In one case, a farmer sued a local hospital for reproducing his X-rays on hospital brochures. In another case, a 22-year-old single woman won $1,200 in a privacy suit in Xinjiang after a doctor allowed 20 interns to witness her abortion.1
The Practicing Physicians Law requires that doctors not reveal health information obtained during treatment. Doctors who violate the law face criminal penalties. In May 1999, the Ministry of Health, with the approval of the State Council, published an administrative order declaring that personal information about HIV/AIDS sufferers should be kept confidential and that the legal rights and interests of those people and their relatives should not be infringed. In 2001, Ministry of Health officials again called for more attention to protecting the right to privacy of HIV/AIDS patients following a court ruling that a hospital damaged a patient's reputation by releasing false HIV-related information about her.2 Such efforts were reaffirmed by the national Regulation on the Prevention and Treatment of HIV/AIDS promulgated in 2006.
The Maternal and Child Health Care Law requires premarital and prenatal examinations to determine whether couples have acute infectious diseases or certain mental illnesses (not including mental retardation) or are at risk for passing on debilitating genetic diseases. Based on medical advice, the Ministry of Health can recommend sterilisation or abortion. Under Article 9, marriage is forbidden for those who are suffering from certain type of illness, including schizophrenia. If doctors find that a couple is at risk of transmitting disabling congenital defects to their children, the couple may marry only if they agree to use birth control or undergo sterilisation. The law stipulates that local governments must employ such practices to raise the percentage of healthy births. Media reports have publicised the forced sterilisation of mentally challenged teenagers in Nantong, Jiangsu Province.3
No laws criminalise private homosexual activity between consenting adults. Societal discrimination and strong pressure to conform to family expectations have deterred most gay individuals from publicly discussing their sexual orientation. Published reports stated that more than 80% of gay men married because of social pressure. In what officials said was a campaign against pornography, authorities blocked the overseas Web site gaychinese.net for three months in 2005. Other Internet sites on gay issues that were not sexually explicit were also blocked during the year.4
In 2005, in order to safeguard financial stability, prevent and lower the credit risk of commercial banks, promote the development of individual credit businesses, and safeguard the security of individual credit information, the People's Bank of China (PBOC) issued the Interim Measures for the Administration of the Basic Data of Individual Credit Information. Based on that, in 2006, PBOC, China's Central Bank, developed a database that links up information on consumer credit. This nationwide database system includes credit records for 340 million Chinese residents, and covers 97.5% of all consumer loans granted by Chinese banks, worth CNY2.2 trillion (US$271 billion). It is capable of generating personal credit reports that will provide information on a person's borrowing from different banks, including credit card transactions.5 PBOC plans to include such information as tax payments, legal disputes and social security payments.6 Some individuals are worried about PBOC's holding such information. Although most Chinese appear to believe the police and central government have their best interests in mind, they're also increasingly worried about data leakage by corrupt officials.7
The Guidelines for Payment and Clearing Organisations on Anti-money Laundering and Anti-terrorist Financing that PBOC issued in 2009 required payment and clearing organisations and their branches to establish internal control systems to prevent money laundering and terrorist financing, and to establish systems to check client identities in order to report suspicious transactions and preserve client identity and transaction records.
The Chinese Web site Souren, or "personal search", and many of its competitors advertise access to 90 million ordinary people's incomes, marital status, and other sensitive information for as little as 12 cents per request. Many believe government departments are to blame for the misappropriation of data. Authorities with access to personal information sell it to commercial entities seeking data on potential customers.8
National Identity System
Since 1985, all Chinese citizens over the age of 16 have been required to carry identification cards issued by the Ministry for Public Security. Identification cards include name, sex, nationality, date of birth, address and expiration date, which varies depending on the age of the cardholder. The ID cards can be used as driver's licences, library cards, or to store digital certificates or to update the government on any changes to contact information. China's ID cards are also used to monitor underage drinking and illegal movement of its citizens.9
The Regulations on Resident Identity Cards (1985) and the subsequent Law on Resident Identity Cards (2006) stipulate that no organisation or individual has the right to - retain a citizen's ID card except for the police, who are required to keep confidential any personal data obtained from the ID cards.10 Public security agencies have the right to demand the production of ID card under conditions prescribed by law, such as an investigation of the identity of suspects.11 Failure to register for an ID card, forging or otherwise altering a residence registration, or assuming another person's registration are all prohibited by law and punishable by fines. The law also mandates that citizens use the cards for such events as opening a bank account, purchasing airline tickets, and registering a marriage.12 A 2011 amendment to the law requires that individuals submit their fingerprint information when they apply for, change or register their ID cards.13
There have been several documented problems with smart cards. There have been instances of card theft, forgery, identify theft and misappropriation of data. A Chinese wine merchant ran into a string of bad luck following the theft of his card. He was suspected of robbery, accused of evading a medical bill and even arrested, convicted and fined for jaywalking. It was later discovered that a number of imposters committed the crimes using his card number and details, although they managed to change the photo.14
The US State Department reported in 2006 that China's national identification system is being liberalised and the ability of most citizens to move around the country to live and work continues to improve.15 However, the authorities have retained the ability to restrict freedom of movement through other mechanisms, and increased restrictions on movement during 2005, particularly during politically sensitive anniversaries and to forestall Falun Gong demonstrations.16 The amended Law on Resident Identity Cards further increased police powers, authorizing policemen to demand the production of ID at railway stations, long-distance bus stations, ports, wharfs, airports or, "during major events", any places specified by governments at or above the prefectural level. Since the amendment came into effect on January 1, 2012, state-run media have reported citizens' unease about being randomly stopped at streets and checked for IDs.17
Surveillance and free expression
It is well documented that the Chinese government is committed to monitoring media online and in more traditional channels for information that might harm unification of the country, endanger national security, or subvert government authority.18 In February 1999, the government announced the creation of the State Information Security Appraisal and Identification Management Committee that "will be responsible for protecting government and commercial confidential files on the Internet, identifying any net user, and defining rights and responsibilities... [t]he move is intended to guard both individual and government users, protect information by monitoring and keep them from being used without proper authorisation."19 In 2004, the Chinese government continued to impose restrictions on news reporting and publishing20 by censoring publishers and punishing unauthorised publishers. Authorities continuously oppressed the expression of opinions that the Party deemed objectionable.21
In addition to Internet filters, which are dynamically updated and block sites on topics ranging from politics to religion to entertainment, the government monitors discussion forums in real time.22 A 2003 study documented in detail government monitoring and censorship of discussion forums, where controversial postings are removed within minutes or hours.23 Both the study and other commentators question how long it will be possible to maintain such labour-intensive controls as Internet use increases in China,24 especially since people are reportedly successful in circumventing Internet censorship mechanisms to access foreign news sources.25
The Internet Information Services Regulations control Internet usage. Promoting "evil cults" is prohibited, as is providing information that "disturbs social order or undermines social stability." One regulation, covering chat rooms, requires all service providers to monitor content and restrict controversial topics. Content providers must keep files of what they post and who reads it, for 60 days. Other regulations make it illegal to store, process, or retrieve information deemed to be "state secrets" from international computer networks. Authorities do not consider persons who receive dissident email publications responsible, but forwarding those messages to others is illegal.26
As of 2009, 57 people had been placed in detention for posting messages or articles on the Internet that were considered subversive.27 Four student activists who posted essays critical of the government were given prison sentences of up to 10 years for subversion.28 Internet essayist Luo Yongzhong was sentenced to three years in prison after publishing articles on overseas Web sites calling for democracy and human rights.29
There have been several calls for the release of Shi Tao, a Chinese journalist jailed since 2005. Tao was arrested during the continuing crackdown on those who defend the memory of the Tiananmen Square victims. He was convicted in 2005, with evidence provided by search engines that worked in cooperation with the Chinese Government.30 Tao's lawyer, Guo Guo-Ding, famous for taking human rights cases, stated that the search and seizure and subsequent arrest were illegal. As a result, Ding's licence to practice law was suspended for one year by Shanghai's Department of Justice. Ding was later put under house arrest, and one of his co-workers had to take over the case.31
Netizens in China have to navigate carefully through the legal minefield. Another notorious example is Liu Xiaobo, the 2010 Nobel Prize winner. In 2009, he was sentenced by the Chinese authorities to 11 years of imprisonment for "inciting to overthrow state power" for co-drafting and posting the Charter 08 Manifest on the Internet, calling for political reforms, an end to corruption, and respect for human rights.32
The Computer Information Network and Internet Security, Protection, and Management Regulations stipulate that individuals must be registered, that transferring accounts is prohibited and that all those engaged in Internet business are subject to security supervision, inspection, and guidance, including assisting in incidents involving legal violations and criminal activities using computer information networks.33 Another provision of the regulations requires Internet caf patrons to register with "software managers" and produce a valid ID card to log on.34
Monitoring of Cyber Cafes
By law, all Internet caf s must be licenced. However, due to the labyrinthine licensing requirements and registration for both the operator and the user and high demand, it is estimated that a substantial number of China's 200,000 plus Internet caf s remain unlicensed. Licenced cybercaf s require patrons to provide identification and register each time they visit. It is unsurprising that a significant percentage of China's Internet users log on using prepaid, anonymous phone cards through unlicensed Internet caf s.35 These caf s offer inexpensive access and a degree of unregulated freedom that might not otherwise be possible.36
According to an early report from Human Rights Watch, more than 1,700 Internet caf s in Chongqing operate "security management" software distributed by the local bureau of public security that filters materials and is capable of "capturing" computer screens and "casting" them onto screens at local public security bureaus.37
In 2003, China began to licence Internet caf "chains" that would serve as an alternative to the privately held caf s that were the target of previous crackdowns.38 This move has been widely viewed as an attempt to promote consolidation in to the hands of fewer, larger, easier-to-control organisations. The Xinhua News Agency, the Chinese state news agency, reported that the government shut down 8,600 "illegal" Internet caf s between March and April 2004.39
In another move to control online browsing in 2005, the Beijing Internet Safety Service Centre of the Beijing Public Security Bureau recruited 4,000 web watchdogs to put cybercaf s and Internet service providers in Beijing under surveillance.40 Human rights groups estimated that the Chinese government employs 30,000 people to monitor Internet traffic.41 By 2007, more than 50 Internet users were serving prison terms for posting opinions online.42
In June 2007, China's State Administration for Industry and Commerce announced that no new Internet caf s would be licenced. Chinese officials are concerned that online material is harming young people.43 Authorities believe the Internet is giving children access to violent games, sexually explicit material, and gambling. Regulators will carry out an industry-wide inspection to see whether the Internet caf s are improperly renting out their licences or failing to register their customers' identities.
The monitoring of Internet activity has led to numerous arrests and long jail sentences for online activists. However, despite near-constant government monitoring and filtering, China's Internet usage continues to surge. By June 2011, the number of Internet users in China had reached 485 million, constituting one quarter of the world's netizens, representing a drastic jump from 620,000 back in 1997, when the China Internet Network Information Society (CNNIC) first carried out its survey. 44
In 2005, Kong Youping and Ning Xianhua were arrested and convicted as cyber-dissidents. They were sentenced to 15 and 12 years in prison respectively for posting articles online in support of the Chinese Democratic Party (CDP), an underground opposition group.45 He Depu, a member of CDP, continued to serve eight years imprisonment for signing an open online letter that appealed for political reform in November 2002.46 In January 2011, He was released upon completion of the sentence. The Chinese government also arrested Zhang Lin, a cyber-dissident, for posting lyrics of a punk song.47 Human Rights in China (HRIC) questioned whether song lyrics constitute a serious threat to national security.48
The number of bloggers in China has grown from a few thousand in 2002 to anywhere from 100,000 to half a million in 2004 to more than 300 million in 2011.49 In March 2004, the government temporarily shut down four leading blogging sites Blogbus.com, Blogcn.com, Blogdriver.com and Typepad for allowing politically sensitive content to be posted.
In June 2005, the Ministry for the Information Industry announced an initiative to close down all non-officially registered Web sites and blogs.50 The initiative required all China-based Web sites to register by March 20, 2006. According to Reporters without Borders, the requirement was designed to identify those who are responsible for site contents and to control information that "endanger[s] the country."51 However, the Internet Society of China, a subsidiary of the Ministry of Information Industry introduced a bill where blogging services will be encouraged but not forced to adopt a system for registering bloggers by their real names.52 As expected, the proposal was fiercely opposed by bloggers and was abandoned by the authorities. But in 2011, it was reported that the Government was considering implementing real name registration for microblogging services - the equivalent of Twitter which are much more popular than blogging in China.53
It is also reported that from 2008, the Beijing government has required Internet caf s to take photos of first-time customers and scan their ID cards, so that their information is collected and stored in the database of the public security department.54
The government has also extended identification requirements to mobile phones. In 2006 the government announced its intent to address the fact that people were buying pre-paid mobile phone cards without having to prove their identity: at the time over half of China's mobile-phone accounts were not registered in any name.55 The effects of these measures are limited. Introduced in 2010, by 2011 there were reports that many cell phone card vendors were not actively complied with such rules and the government agencies also had little incentive to improve enforcement.56
Since the end of the 1990s, the Chinese government has stressed the importance of government openness as well as the digitisation of administrative affairs, which was stimulated by diverse albeit interconnected considerations: meeting their obligations under the WTO entrance agreement regarding the transparency of trade-related measures, enhancing the confidence of foreign investors and sustaining economic increase, curbing official corruption, transforming the administrative system, and constructing accountable and service-oriented government. From 1998 to 2005, the Central Government and the Chinese Communist Party (CCP) jointly issued a series of policy documents to support top-down open government initiatives.57 Since 2002, local governments successively participated in a bottom-up wave of rule-making regarding the disclosure of government-held information upon request by citizens. The government of Guangzhou took the lead with the Provisions of Guangzhou City on Open Government Information in 2002, indicating for the first time an effort on the part of local governments to consolidate in legal form the people's right to supervise the government as well as participate in the administration of state and social affairs.58
On January 20, 2004, Shanghai, home to 16 million people, adopted "The Provisions of Shanghai Municipality on Open Government Information." This was China's first provincial-level open information legislation, and it could "represent the most comprehensive framework to date in China for accessing government-held information."59 The Shanghai provisions grant citizens, legal persons, and other organisations the right to request "government information" from government agencies, including information about individuals themselves.60 Furthermore, the law imposes a legal obligation on government agencies to disclose information that is not covered by six exemptions for information.61 The legislation is also significant because of the inclusive process that included posting a draft for public comment by which the Shanghai provisions were formulated. The Shanghai Provisions were copied by a number of local governments when they made their own FOI rules. Before the enactment of the national regulation, eleven provincial governments and more than 40 prefecture-level governments had issued rules on government openness, while the people's congress of Guangdong had enacted local regulation on open government affairs. In addition, 36 departments or bureaus under the State Council have issued departmental rules on the same subject.62 But as far as China's legal hierarchy is concerned, neither policy documents nor local government rules63 are considered capable of conferring a legally enforceable right of access to information. To bridge the gap, scholars and central officials considered the alternative of using administrative regulation (xingzheng fagui) issued by the State Council, instead of asking the National People's Congress or its Standing Committee to pass a new law.64 Entrusted by the then State Council Informatisation Office, scholars of the Chinese Academy of Social Sciences submitted a draft regulation in 2002, supporting the recognition of the right to access information. Despite society's unanimous call for information transparency, especially after the SARS outbreak of 2003, the legislative process was protracted, and the bill was discussed without the public's knowledge. This resulted in turning the previous right-to-know regime into an "Open Government Information" (OGI) regime with Chinese characters. The Regulation on Open Government Information (ROGI) was not promulgated until April 2007, and did not come into effect until 1 May 2008.
The ROGI resembles the FOI laws of many countries in that it establishes a relatively comprehensive legal framework for both proactive release and disclosure upon request of government information, and provides for remedies and performance supervision. However, its ambiguities regarding the nature of access rights and the scope of openness actually create a unique regime. The regulation applies to governments and their departments (collectively called "administrative organs") at all levels. Government information is defined as the information that administrative organs generate or acquire during the process of performing their competences, which excludes information in the possession of the legislative and judicial branches.
Article 1 of the ROGI states that the legislative intent is "to ensure that citizens [o]btain government information in accordance with the law, to enhance transparency of the work of government, to promote law-based administration, and to bring into full play the role of government information in serving the people's production, livelihood and economic and social activities". That indicates an official recognition of the role of information access in both monitoring the legality of administrative activities and enhancing citizens' substantive rights and interests, which to some extent echoes the underlying values of FOI laws in both mature and new democracies.65 Correspondingly, the ROGI generally requires proactive release of information that "involves the vital interests of citizens" and "needs to be extensively known or participated by the general public" (Article 9). In addition, it has listed certain categories of information that governments at different levels should publish. Among these categories, some can be regarded as facilitating civic engagement and democratic supervision of policy-making, such as the plans for national economic and social development, budget reports, and the handling of government procurement and administrative licensing. Other categories clearly aim to address the widespread violations of individual rights by local authorities in several outstanding areas, such as the implementation of family planning policy, land appropriation, distribution of social donations for emergency and disaster relief, and household demolition and relocation (chaiqian), as well as relevant compensation.
Similar to FOI laws, the ROGI prescribes that citizens can request access to information that has not been released proactively. Agencies receiving the request should generally reply within 15 business days and should not exceed 30 days in maximum (Article 24). But the Regulation adds that the request "may be based on the special needs of such matters as their own production, livelihood and scientific and technological research" (Article 13), which leaves uncertainty over whether the information access should have a "need basis". In addition, the ROGI fails to mention explicitly any "right to know" or "right of access to information", which arouses controversy about whether individuals can ask the court to protect a stand-alone right to information.
The ROGI took a step forward in enabling individuals to access, and correct, certain categories of personal information processed by administrative organs. Article 25 provides that "When citizens [r]equest administrative organs to provide government information about themselves such as taxes and fee payments, social security and medical care information, they should show valid identification certificates or certifying documents", and if evidence shows that the government information concerning the requester is not recorded accurately, the requester has the right to request the administrative agency to correct it.
The ROGI does not expressly endorse the principle of maximum disclosure, even though many pre-existing local OGI rules stipulate that "disclosure is the principle and nondisclosure the exception". It also sets wide exemptions without defining the key concepts and conditions of application, unlike good FOI laws, which contain detailed provisions about exemptions so as to limit the discretion of authorities. Administrative organs are prohibited from disclosing information related to "state secrets, commercial secrets and individuals' privacy" (Article 14). Information in the latter two categories could be released upon the consent of the relevant rights holders, or if the government believes nondisclosure would severely harm the public interest (which implies a "quasi" public interest override). In addition, the ROGI stresses that disclosure of information shall not "endanger national security, economic security, public security or social stability" (Article 8), which acts as an ultra catch-all exemption.
Empirical studies have repeatedly confirmed the poor enforcement rate of the ROGI, especially the low success rate in obtaining government information through request.66 A study of administrative lawsuits shows barriers to access to courts, narrow judicial interpretations of the standing to sue, and inadequate substantive control of agencies' OGI decisions in judicial review cases regarding denial of OGI requests.67
- 1. York, supra.
- 2. Id.
- 3. US State Department Human Rights Report 2006 - China, supra.
- 4. Id.
- 5. "China to Build National Database for Personal Credit Information," Xinhua News Agency, March 17, 2005.
- 6. "Consumer Credit Database Established," People Daily Online, available at http://english.people.com.cn/200601/17/eng20060117_236019.html
- 7. Magnier, supra.
- 8. "90% worried privacy divulged: survey," China Daily, June 5, 2006, available at http://www.chinadaily.com.cn/china/2006-06/05/content_608995.htm
- 9. "Hong Kong's Smart Identity Card" 2003. 4(2) Asian-Pacific Law & Policy Journal 522.
- 10. Regulations Concerning Resident Identity Cards (1985), Article 13. See "Civil Rights Protected in New Chinese Laws, Regulations," Xinhua News Agency, January 1, 2004, available at http://www.china.org.cn/english/2004/Jan/83740.htm. The Regulations were replaced by the Law on Resident Identity Cards (2006), corresponding article being Article 14.
- 11. Article 13 of the Regulations Concerning Resident Identity Cards (1985) authorized the police to demand the production of ID when "performing its duty".. See "Regulations Concerning Resident Identity Cards", Xinhua News Agency, May 7, 1984. But the Law on Resident Identity Cards (2006) introduced a restrictive stipulation that such an power can be exercised under the following conditions: (1) When it is necessary to find out the identity of the suspected offenders and criminals; (2) When it is necessary to fine out the identity of the relevant persons when controlling a spot in accordance with the law; (3) When it is necessary to fine out the identity of the relevant person on the spot when an emergent event that seriously endangers the social security happens; (4) circumstances prescribed by other laws.
- 12. "One Million Beijingers to Face Problems as ID Cards Expire," Xinhua General News Agency, December 24, 2004.
- 13. Cao Yin, "ID cards may carry fingerprint data," China Daily, October 25, 2011 at 03. Law on Resident Identity Cards (2011), Article 3, 23.
- 14. Hong Kong's Smart Identity Card" 2003, supra at 534.
- 15. US State Department Human Rights Report 2006, supra.
- 16. Id.
- 17. Mo Ting, "Guangzhou citizens uneased by ID checks," Global Times (China), March 20, 2012 at 05.
- 18. See generally, Human Rights Watch, Freedom of Expression and the Internet in China: A Human Rights Watch Backgrounder (2001), available at http://www.hrw.org/legacy/backgrounder/asia/china-bck-0701.htm. See also Revised Provisional Regulations Governing the Management of Chinese Computer Information Networks Connected to International Networks 6, May 20, 1997, which prohibits connection to international networks except through approved "access channels," available at http://web.archive.org/web/20020613133506/http:/msnhomepages.talkcity.co...
- 19. "China Forms Information Security Oversight Committee," Xinhua News Agency, February 12, 1999.
- 20. Congressional-Executive Commission on China 2004 report. Supra.
- 21. Id.
- 22. J. Zittrain and B. Edelman, "Empirical Analysis of Internet Filtering in China," available at http://cyber.law.harvard.edu/filtering/china/. See also J. Zittrain and B. Edelman, "Internet Filtering in China," IEEE Internet Computing, March 1, 2003.
- 23. A Stroehlein, "Internet Censors in China Loosening Their Grip," May 23, 2003, available at http://web.archive.org/web/20041010021247/http:/www.ojr.org/ojr/world_re...
- 24. Rand Center for Asia-Pacific Policy, "China and the Internet: A Game of Cat and Mouse?" available at http://www.rand.org/international_programs/capp/newsletter/03/mar.html
- 25. Congressional-Executive Commission on China, Annual Report (2004), supra.
- 26. "China Enacts Sweeping Rules on Internet Firms," Reuters, October 2, 2000.
- 27. Sophie-H l ne Lebeuf and Wu Wei, "The Internet Great Wall: Internet censorship in China", 2010, available at http://www.rcinet.ca/projects/ch/china_web_censorship/index.shtml (in Chinese).
- 28. "China Jails Four Internet Activists for Subversion," Reuters, May 29, 2002.
- 29. US State Department Human Rights Report 2003 China, supra.
- 30. Reporters without Borders "Renewed call for release of Shi Tao after mother reads Tiananmen poem at Golden Pen Award" June 5, 2007, available at http://www.rsf.org/print.php3?id_article=10749
- 31. "Shi Tao and Yahoo," Human Rights in China, available at http://www.hrichina.org/public/highlight/
- 32. Michael Bristow,' Liu Xiaobo: 20 years of activism' BBC News, 9 December 2010, available at http://www.bbc.co.uk/news/world-asia-pacific-11492131
- 33. "China Enacts Sweeping Rules on Internet Firms," supra.
- 34. "US Embassy Beijing, Kids, Cadres and "Cultists" All Love It: Growing Influence of the Internet in China" (Beijing 2001), available at http://web.archive.org/web/20030405111759/www.usembassy-china.org.cn/eng...
- 35. "China Launches Crackdown on 'Harmful' Internet Content," Yahoo News Singapore, May 1, 2002, available at http://web.archive.org/web/20020807225418/http:/sg.news.yahoo.com/020501...
- 36. The anonymity provided by Internet caf s hearkens to the use of "big-character posters" of an earlier era and provides a unique opportunity for Chinese citizens particularly students to express personal opinions.
- 37. Human Rights Watch, A Human Rights Watch Backgrounder (2001), supra. Called "Internet Police 100," the software comes in versions designed for home, caf s and schools.
- 38. "China Seen Tightening Control over Internet Cafes," Reuters, June 10, 2003, available at http://in.tech.yahoo.com/030610/137/250dj.html
- 39. G. Kim and N. Tim, supra.
- 40. Shi Ting. "Search on for 4,000 Web Police for Beijing," South China Morning Post, June 17, 2005.
- 41. Neil Taylor. "Great Firewall Has Little Chance of Stopping Messages," South China Morning Post, July 6, 2004.
- 42. Id.; Amnesty International Report, China/Hong Kong, 2004.
- 43. "China bars new internet cafes," Associated Press, June 4, 2007, available at http://news.findlaw.com/ap/ht/58/06-04-2007/c21d00114c617805.html
- 44. China Internet Network Information Centre, The 28th Statistical Report on Internet Development in China, July 2011, available at http://www.cnnic.cn/dtygg/dtgg/201107/W020110719521725234632.pdf (in Chinese).
- 45. "Two Cyberdissidents Handed down Harsh Prison Sentences," The Internet Under Surveillance, Reporters Without Borders, September 17, 2004, available at http://www.rsf.org/rubrique.php3?id_rubrique=432.
- 46. "Cyber-dissident He Depu Begins Third Year in Prison," The Internet Under Surveillance, Reporters Without Borders, October 4, 2004, available at http://www.rsf.org/rubrique.php3?id_rubrique=432
- 47. Reporters Without Borders, "Cyberdissident Zhang Lin to Go on Trial for Posting Articles Including Lyrics to a Punk Song Online," supra.
- 48. Id.
- 49. See CNNIC's survey reports of the Internet in China, available at http://research.cnnic.cn/html/index_74.html
- 50. Reporters Without Borders, "Authorities Declare War on Unregistered Websites and Blogs", The Internet Under Surveillance, Internet Freedom Desk, available at http://www.rsf.org/rubrique.php3?id_rubrique=433
- 51. Id.
- 52. "Government drops plan to ban anonymous blogging but imposes self-discipline," supra.
- 53. Choi Chi-yuk, 'Net Tightens on Online Rumours,' South China Morning Post, October 7, 2011, availabe at http://www.scmp.com/portal/site/SCMP/menuitem.2af62ecb329d3d7733492d9253...
- 54. Available at http://news.xinhuanet.com/tech/2008-10/16/content_10201585.htm
- 55. "The Party, the People and the Power of Cyber-Talk," The Economist, April 27, 2006, available at http://www.economist.com/node/6850080?story_id=6850080
- 56. "Real name registry for mobiles in effect for one year, unaccepted by both sellers and buyers," Everday Economic News (China), September 1, 2011, available at http://company.nbd.com.cn/newshtml/20110901/20110901164252887.html
- 57. For the development of open government before the enactment of the ROGI and its causes, see generally Zhou Hanhua, "Open Government in China: Practice and Problems", Ann Florini, ed. The right to Know: Transparency for an Open World (New York: Columbia University Press,2007), pp. 92-106.
- 58. J. Horsley, "China's Pioneering Foray into Open Government: A Tale of Two Cities", July 14, 2003, available at http://www.freedominfo.org/2003/07/chinas-pioneering-foray-into-open-gov....
- 59. J. Horsley, "Shanghai Advances the Cause of Open Government Information in China," April 20, 2004, available at http://www.law.yale.edu/documents/pdf/Shanghai_Advances.pdf.
- 60. The Shanghai Provisions define "government information" as information held in physical form by government agencies that is related to economic and social management and public services. The "right to know" does not appear in China's Constitution or any national law to date. However, the concept was recently cited in China's report "Progress in China's Human Rights Cause in 2003." See J. Horsley, supra. See also State Council Information Office, Progress on China's Human Rights Cause in 2003, March 31, 2003, available at http://chineseculture.about.com/library/china/whitepaper/hr/blshr2003.htm.
- 61. The six exemptions are: (1) a state secret, (2) a commercial secret, (3) an individual's private information, (4) related to a matter that is in the course of being investigated, discussed, or processed, (5) related to an administrative enforcement action that might influence the enforcement activity or endanger an individual's life or safety, or (6) otherwise exempted from disclosure by law or regulation.
- 62. See Chen Clement, "Curtain rose yet uncertainness remains: FOI Regulation came into force," FOI in China, April 30, 2008, available at http://chinesefoi.org/blog/?p=34.
- 63. Local government rules (defang zhengfu guizhang) can be made by all provincial governments and a number of city governments approved by the State council. They have binding effect on both administrative organs and citizens.
- 64. See Zhou Hanhua, Expert Proposal for the Regulations of Open Government Information: Draft, Explanation, Considerations and Legislative Pattern (Beijing: China Legal Publishing House, 2003).
- 65. For the rationales for FOI laws in advanced democracies, see Bruce E. Cain, Patrick Egan, et al., "Towards more open democracies: The expansion of freedom of information laws", Bruce E. Cain, Russell J. Dalton, et al., ed. Democracy Transformed? Expanding Political Opportunities in Advanced Industrial Democracies (Oxford: Oxford University Press,2003). For the motivation of FOI legislations from a global perspective, see John M. Ackerman and Irma E. Sandoval-Ballesteros, "The global explosion of freedom of information laws" (2006) 1 Administrative Law Review, p 88-93.
- 66. See, for example, consecutive reports from 2009 to 2011 produced by the Center of Public Policy Studies of the Shanghai University of Finance and Economics.
- 67. Chen Yongxi, "The right to know unrelated to monitoring the government: A survey on the judicial protection of the right of access to information in China", in the 6th Annual General Conference of European China Law Study Association (Paris, September 2011), unpublished, at http://www.ecls.eu/paris_programme.pdf.