A Study of Cyber-Violence and Internet Service Providers' Liability: Lessons from China
Asy Cheung · The HKU Scholars Hub (University of Hong Kong) · 2009
I. INTRODUCTIONCyberspace has been likened by many to be wild West,1 difficult to tame and unruly. Yet great firewall of Government of People's Republic of China [China] has pinned down and filtered many freewheeling minds and spirits.2 When we are confronted with Orwellian nightmare of Big Brother overseeing us, many overlook fact that we have become Little Brothers monitoring each others' behaviour. With rise of blogs, discussion boards, and Youtube, we may become targets of false allegations or have our movements and gestures captured by modern technology at any moment to be broadcast on Internet for millions to watch and to criticize. The use of Internet by private citizens to achieve social shaming, monitoring and ostracism, or for private revenge is gaining prominence in China.The year 2007 brought several Internet scandals in China touching on defamation and privacy. These included a Peking University female graduate who allegedly appeared nude for philanthropic purposes while she was studying abroad.3 This, however, turned out to be a blatant lie.4 In cases concerning privacy, greater truth, greater libel. Some Internet users were not content merely to expose perceived wrongful deeds, but they were determined to hunt down targeted individuals by triggering flesh search engine.5 In Chinese, this is called renrou sousuo, literally meaning the search for human flesh. The human flesh search engine mobilizes thousands of individuals with a single aim: to dig out facts and expose social delinquents to baleful glare of publicity6 in a cyber relay. This form of Internet witch hunting has exposed details of an unfaithful husband,7 and of a hospital pharmacist deriving pleasure from torturing a kitten.8 Recently in 2008, a twenty-one-year-old woman was hunted down for expressing scornful remarks to victims of Sichuan earthquake.9In many cases, renrou sousuo tears apart lives of individuals concerned. For instance, young woman who showed callous disregard for earthquake victims was detained by police,10 and both unfaithful husband and kitten-torturer were dismissed by their employers.11 These recent events show that malicious speech and Internet witch-hunt have escalated into a form of cyber violence, with targeted individuals painfully feeling adverse impact in real life. Yet, these individuals have little legal recourse to protect their reputation and privacy. Many have little money to wage a legal battle, but perhaps even more troubling, they do not know whom to sue, especially when Internet postings are mostly anonymous. Compounding this difficulty, defamer or privacy violator may not be a single person. Intrusion is often done collectively in a series of anonymous Internet postings by numerous netizens. Some victims of defamation or privacy invasion have tried to sue Internet service providers (ISPs), but this has proven to be an uphill battle.12 Though Internet may have given the ultimate in free speech by giving voice to millions,13 it has also provided a means to disseminate false speech and intrude on people's privacy.Thus, this article argues that an effective way to solve current problem is to adopt a system of notice and take down on Internet service providers for defamation and privacy violations.14 This article begins with Part II, a discussion of current legal position in China. Part III critically examines China's current law and demonstrates its inadequacies for policing defamation and privacy violations. Part IV compares regimes of United Kingdom, European Union, and United States and argues that an effective approach requires that ISPs remove offending content upon receipt of actual notice. Such a system of notice and take down balances right to free speech on one hand and reputation and privacy on other without resorting to draconian intervention of criminal law. …