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By Doreen Weisenhaus

Lawyer Pu Zhiqiang was formally arrested on two offences —  “creating a public disturbance” (寻衅滋事罪) and “illegally obtaining the personal information of citizens” (非法获取公民个人信息)

The Arrest

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On June 13, 2014, the Chinese authorities announced the formal arrest of prominent rights lawyer Pu Zhiqiang, who had been detained in early May after attending a private meeting where he and several others discussed the military crackdown 25 years earlier of student-led protests in Tiananmen Square.

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“Creating a public disturbance”

The offence of “creating a public disturbance” (also often translated as “picking quarrels and provoking troubles”) refers to Article 293 (4) of China’s Criminal Law. According to Zhang Xuezhong, a Shanghai rights lawyer, the offence was likely connected to Pu’s attendance at a May 3, 2014, meeting at a private home during which participants discussed the events of the Tianamen Square crackdown on student-led protests. It may also be related to a photograph of the attendees, including Pu, which was posted online. If convicted of this offence, Pu faces a prison term of up to five to 10 years, depending on whether it also includes the act of “assembl(ing) other people to commit the acts.”

Article 293 (amended in 2011):

Whoever disrupts the social order by committing any of the following provocative and disturbing acts shall be sentenced to imprisonment of not more than 5 years, criminal detention or control:

  1. Assaulting any other person at will, with execrable circumstances;
  2. Chasing, intercepting, reviling or intimidating any other person, with execrable circumstances;
  3. Taking or demanding forcibly or vandalizing or occupying at will public or private property, with serious circumstances; or
  4. Making trouble in a public place, which causes a serious disorder of the public place.

Whoever assembles other people to commit the acts as mentioned in the preceding paragraph many times, which seriously disrupt the social order, shall be sentenced to imprisonment of not less than 5 years but not more than 10 years and may be fined in addition.”

If the offence requires that the disturbance occur in a “public place,” how would a private meeting attended by Pu justify this offence? Zhang and Jeremy Daum of the Yale China Law Center speculated that authorities may be including the Internet as a “public forum.” The offending actions could be the online posting of the photograph and/or comments about the meeting. A highly controversial joint interpretation by the Supreme People’s Court and Supreme People’s Procuratorate relating to internet speech crimes in September 2013 clarified that some types of online conduct can be subject to an interpretation of “provocation and causing disturbances”:

The dissemination of false information on information networks, which one has either invented or clearly knows to be fabricated information, or the organizing or inciting of others to disseminate it on information networks, creating an uproar and causing serious public disorder, is to be convicted and punished as the crime of ‘provocation and causing disturbances’ in accordance with article 293(4) of the Criminal Law. 

Daum also pointed to an earlier joint interpretation on Article 293 in July 2013 that clarified that a “public place” will be judged by a number of factors, including the type of venue and the scope and degree to which the forum was impacted. The offence has been used with increasing frequency against activists and others, most recently with three members of the anti-corruption New Citizens movement, who were sentenced on June 19 to prison terms of three years to six-and-a-half years. They had taken photos of themselves holding posters calling for more openness in government and posted them online. Until his detention, Pu had been the lawyer for one of the defendants. Lawyer Wang Quanping, who also was representing New Citizens defendants, was himself detained in April under this offence for posting anti-corruption comments on the side of his car. The offence of “creating a public disturbance” and several other similar ones referring to “assembled crowds” (Articles 290 – 292 of the Criminal Law), are more generally referred to as the “disturbing social order” offences. When the Criminal Law was amended in 1997, these offences replaced the prior offence of “hooliganism.”

“Illegally obtaining personal information of citizens”

The offence of “illegally obtaining the personal information of citizens” is a fairly recent one. It is based on Article 253 of the Criminal Law, which in the past dealt with postal workers and others who opened, hid or destroyed mail and other articles. But as concern in China grew over the use of personal data, particularly online, the offence was amended in 2009 (English text(Chinese text) as Article 253(A) to prohibit the illegal sale or unlawful disclosure of individuals’ personal data by government and private employees in various sectors and industries such as medical and financial who had access to the data.

Article 253 (A): “Where any staff member of a state organ or an entity in such a field as finance, telecommunications, transportation, education or medical treatment, in violation of the state provisions, sells or illegally provides personal information on citizens, which is obtained during the organ’s or entity’s performance of duties or provision of services, to others shall, if the circumstances are serious, be sentenced to fixed-term imprisonment not more than three years or criminal detention, and/or be fined. Whoever illegally obtains the aforesaid information by stealing or any other means shall, if the circumstances are serious, be punished under the preceding paragraph. Where any entity commits either of the crimes as described in the preceding two paragraphs, it shall be fined, and the direct liable person in charge and other directly liable persons shall be punished under the applicable paragraph.”

Since 2009, Chinese authorities have prosecuted many Article 253(A) cases against violators, typically involving consumer information, identity theft, subscriber telephone lists and so on. It is unclear what specific actions of Pu resulted in being formally arrested for this offence. Shanghai lawyer Zhang Xuezhong has written that he believes the offence may be based on the ground that Pu “has requested information on business registration on behalf of some media organizations.” If that is the case, Zhang does not believe that Pu has violated the law:

Pu’s action does not constitute the crime of illegally obtaining citizens’ personal information under Article 253(a) of the Criminal Law. First, shareholders of companies invest money and share the risk of the failure of the company. Under the limited liability system of shareholders, every company must disclose important information through the registration bodies of industry and commerce in order to protect the interest of potential business clients. The goal of company registration is to provide disclosure of information. This is the reason why Article 6, Clause 3 of the PRC Company Law clearly provides that “the public can request information on company registration at company registration authorities, (while) company registration authorities should provide such services.” Therefore, it is impossible to make it a crime for lawyers to seek information on any company on behalf of anybody. Secondly, according to the provisions of Article 253…illegally securing information refers to obtaining information by stealing or by methods in violation of the law. When a lawyer makes inquiries of a company’s registration information at the Administration for Industry and Commerce, they inquire according to the regulations and procedures stipulated by the Administration, or the lawyer will not be able to get the information. Under such circumstances, if the lawyer’s inquiry was illegal, the Administration would also have acted illegally by allowing the inquiry. It is therefore totally ridiculous for the Beijing police to consider a lawyer’s inquiry of business information an illegal act.

 

What’s next?

On June 9, one of Pu’s lawyers,  Zhang Sizhi, unexpectedly got a chance to visit Pu, who had been held in a Beijing detention center since May 6.  After the visit, the veteran defense lawyer wrote pessimistically about Pu’s fate:

On May 18, I told a reporter that Mr. Pu’s case was an ordinary one, and that I would handle it with the same approach as I would any other case. At that point, I was trying to limit the discussion to the charge of “picking quarrels and provoking trouble,” since Mr. Pu’s actions on May 3 clearly had nothing to do with “picking quarrels.” There have been major developments since then, and now it’s clear that Mr. Pu’s case is not an ordinary one, and we should not regard it as such. This situation requires us to put our heads together, to pool our energies.

For more discussion, see:


(Doreen Weisenhaus is Associate Professor and Director of the Media Law Project at the Journalism and Media Studies Centre, University of Hong Kong. She is author of Hong Kong Media Law: A Guide for Journalists and Media Professionals, Expanded Second Edition, Hong Kong University Press, May 2014)