Management of the Internet to be more constitutional thinking

management of the Internet to be more constitutional thinking

Hu Yong

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6 month 8 , the State Council Information Office published in China White Paper on the Internet, stressed that China shall manage the Internet.White Paper sets out the 1994 years, China promulgated by the series of laws and regulations related to Internet governance, saying,"China adheres to prudent legislation, science legislation, reserve space for the development of the Internet."

I counted, the White Paper lists the relevant laws and regulations have 15 many more.China's Internet laws and regulations seem to be called complete, and principle of legislation also"set aside space for the development of the Internet" for the government in the lawful management of the Internet for a good premise.However, the strange thing is, there are scholars, including the Internet, including the field of mass communication is outside the field of law, no special law in addition to the Constitution-based.Zhan Jiang, media scholars that questioned the"no legislation Congress has decided," the strange situation, he means that in many Internet-related laws and regulations, the law is only slightly higher rank 2000 the NPC Standing Committee's decision on safeguarding Internet security, known as"Law" and the Electronic Signature Law of the PRC only through tort law is not long, the rest are all kinds of"provisions","Interim Provisions" (some of them have"provisional" the many years),"methods" and"Working Rules" until the"opinions","notice" and so on.

these"provisions","methods" and"notice" to from where? They come from a relationship with all the possible and the management of the Internet, regulatory body, including development and implementation of the Ministry of Industry and Information Technology, the State Council Information Office, Ministry of Public Security, Ministry of Health, the Ministry of Culture, Education, Press and Publication Administration of Radio, Film & TV Bureau, Administration for Industry, the China Internet Network Information Center, and so forth.

legislative drafting projects directly organized by the department, what would be disadvantages? Not need to do how complex brains to imagine, if it is put forward their own power, the pursuit of power in the legislative process and maximize their own interests to maximize the tendency is inevitable.Tianxiang Bo status in China's legislative system, the article used"the power sector of the interests of the sector of interest laws and regulations," which features China's legislative system to make accurate generalizations.This feature is reflected in the media area of ​​the law is particularly evident.

our media law, supremacy of the Constitution should have been down authorization.The Constitution is the people's power of attorney, any state power are the people's mandate.However, the reality is: the constitution as the general law, general law as administrative regulations, administrative rules and regulations as department regulations, departmental rules and regulations as leading instructions.The so-called legal management of the Internet, in such cases, often becomes a free"law" management, or even illegal administration.

cite an example.Just over a year ago 6 month 8 day, a report in The Wall Street Journal in China tightened control of the Internet exploded,"green dam" storm, then the demands of Internet users in China, and the convergence of Western pressure, the Ministry of Industry have announced the postponement of the Green Dam in the country pre-installed software.This year 8 month 20 days, Die Zeit reported that pre-notification Green Dam" have been misled,"the introduction of chronology.This is a letter to the Department related to the introduction of this policy to be canceled from the rare specimens."To enable more widespread green dam" to take in the cafes, schools, the idea of ​​mandatory installation of an extension to the citizens all the way PC , the forgotten powers to be exercised within the framework of the law, and shall not infringe the rights of private citizens for the bottom line.We can see that a national ministries in making decisions affecting the country hundreds of millions of Internet users, the argument is how careless, how hasty implementation of another.

even bigger problem: so many of the administrative rules, regulations, etc., which are it is not in line with the Constitution? Administrative regulations, departmental rules, is subordinate to the legal normative documents, but also an integral part of our legal system, but their legal status and legal effect to be less than the law, in particular, is lower than the constitution.Media Law by Richard Winter Zheng pointed out that this not only for the latter should be subordinated to the former, according to the provisions of the former formulation, and not in conflict with the former, but also reflects the country's coercive power in terms of the difference is there.

and we see that the Government legislation to regulate the Internet, the lack of constitutional thought, ignore the network democratic politics, to carry out public opinion and promote the role of citizens freedom of expression.Thirty-fifth the current constitution stipulates:"Citizens of the People's Republic of speech, press, assembly, association, of procession and of demonstration."As Internet users not only enjoy the Constitution 35 freedom of expression protected under article can also be based on 第四十一条, staff members in illegal acts with criticisms and suggestions and even complaints, charges and prosecute the right.However, in recent years, the relevant provisions of freedom of speech are often set prior to the administrative licensing, protection of basic civil and constitutional rights of the conflict.

example, 2008 years 1 May 31 from the date of implementation of the Internet audio-visual program service management requirements need prior permission from the network audio and video programs:" in the Internet audio-visual program services should be made in accordance with the provisions of Radio, Film and TV information on the competent authority audio and video programs permit network communication (hereinafter referred to as permits) or to perform filing procedures.Not made in accordance with the provisions of Radio, Film and TV licenses issued by competent authorities or the performance of record, no unit or individual shall not engage in Internet audio-visual program services."The provisions of Article II, said:" The term Internet audio-visual program services, is the production, editing, integrated and available to the public through the Internet audio programs, and for others to upload audio-visual program services communication activities", and production, editing, integration, dissemination of audio and video of the act itself is freedom of speech (freedom of expression).Freedom of expression should not be subject to prior administrative permission, even if the necessary administrative license, according to the provisions of Article VIII of the Legislation Law, the licensing restrictions on freedom of speech is fundamental right of citizens to license restrictions, must develop laws and regulations as the department rules without fundamental rights of citizens the right to license restrictions.

Again, 2009 years 12 May 26 Day of the PRC National People's Congress passed the Tort Law thirty-sixth article:" Internet users, Internet service providers use the Internet against the civil rights of others, he shall bear tort liability.Internet users use Web services to implement acts of infringement by the infringer the right to notify the network service provider to delete, shield, broken links and other necessary measures.Internet service provider after receiving the notice did not take the necessary measures in time, the expansion of some of the damage and jointly and severally liable to the network users.Network service provider that Internet users use their network service infringes civil rights, not take the necessary measures, and jointly and severally liable to the network users."This is a very typical reflection of the legislators on the public freedom of expression and public opinion of the conflict.As we all know, in recent years appeared on the network a large number of constitutional 第四十一条 wonderful practice, citizens right to know the use of public information and state agencies and state workers the right to criticize, make suggestions and carry out effective supervision by public opinion, however, This practice is likely due to the provisions of tort law the appearance of the abrupt end.Tort Act, sixteen general expression of the provisions of the network, especially the tort liability of network service providers will undoubtedly just the rise of network monitoring mortality, harm freedom of speech and public opinion space.This is not only a civil issue, first of all constitutional questions.

enter the information age in China, the question is not whether we should regulate the Internet, but rather How to specification.Operation in the field, this means two things: first, as far as possible use of existing laws; Secondly, if the Government make a mistake, then, should also be made too few errors in specifications.In the Internet has so many difficult questions the circumstances, the Government might not be the best solution.Ultimately, the Internet may birth a new specification method, less mandatory, and more believe that personal freedom and civil self-government forces.

In any case, there are more and more people realize that excessive concentration in the public domain abuse of power will bring the risk of such a power.Decentralized so that people can be exposed to the powerful of misconduct.The more people enjoy the power of supervision, to be launched from a broader perspective of supervision, potential problems and propose different insight.This process may not be a completely natural process.Even if we believe that the new situation will be the formation of the organic, the problem is that this process will be long.Therefore, public policy intervention is very necessary, but, the policy must have Internet users involved in the development agenda, in which free and open use of the Internet, should be regarded as a universal right, anyone can enjoy.We see that this is in line with the White Paper said, the basic goal of China's management of the Internet, namely"to promote the Internet's universal, barrier-free access and sustained and healthy development."