It would be more appropriate to manage the Internet with constitutional thinking

The white paper, published by the State Council's information Office on the state of the internet in China, highlights China's actions to manage the Internet in accordance with the law. The White paper lists a series of laws and regulations relating to Internet governance issued by China since 1994, and says, "China insists on prudent legislation, scientific legislation, and reserved space for Internet development".

I counted, in the white paper, there are 15 laws and regulations. It seems that China's internet laws and regulations are basically perfect, and the legislative principle or "for the Internet Development Reserve space" for the government to manage the internet to prepare a good premise. However, it is strange that some scholars believe that the field of mass communication, including the Internet, is outside the field of law, except that the Constitution has no special law to rely on. Media scholars have questioned the strange situation of "the NPC without legislation and the decision". He refers to the numerous laws and regulations on the Internet, the law is slightly higher than 2000 years of the National People's Congress on the maintenance of Internet security decision, known as "law" only the "PRC Electronic signature Law" and the adoption of the Law on Tort liability, the rest are all kinds of "provisions", "interim provisions" (some have been "temporary" for many years), "methods", "work rules" until "opinion", "notice" and so on.

Where do these "rules", "methods" and "notices" come from? They come from all the authorities that may have a relationship with the Internet, and the regulatory and executive bodies include the Ministry of Industry and Information technology, the information Office of the State Council, the Ministry of Public Security, health, culture, education, press and publication Administration, radio, film and Television, The general Administration of Industry and Commerce, China Internet Network Information Center, etc.

The legislation project is drafted directly by the department, what drawbacks will it bring? No need to move how complicated the brain can imagine, if it is to put forward their own power, in the legislative process of the pursuit of power maximization and self-interest to maximize the trend is inevitable. In the article "The current situation of China's legislative system", the paper Tian Po the characteristics of China's legislative system by using the "power division, departmental interests and interests regulation". This feature is particularly evident in the field of media law.

The media law of our country should be constitutional supremacy and downward authorization. The Constitution is the authority of the people, and any state power is the authority of the people. However, the reality is: the Constitution is inferior to the general law, the general law is inferior to the administrative regulations, the administrative regulations are inferior to the Department regulation, the Department regulation is inferior to the leader instruction. The so-called legal management of the Internet, under such circumstances, often become no "law" management, or even illegal administration.

Give an example. Just a year ago June 8, a Wall Street Journal report, "China tightened Internet control" detonated the "Green dam" storm, after the Chinese netizens and Western pressure, the Ministry has to announce the postponement of the nationwide green Dam software. It is August 20, "Times weekly" reported "Green Dam pre-installed notice" was misled to the beginning of the story. It is a rare specimen of the ministry's policy from the introduction to the forced cancellation. In order to make Green dam more popular, it is necessary to extend the idea of mandatory installation in Internet cafes and schools to citizens ' PCs, forgetting that power must be exercised within the framework of the law, and that it should not infringe upon the private rights of citizens. From this we can see how careless the argument is and how hasty the implementation is when national ministries make a decision that affects hundreds of millions of netizens in the country.

There is a bigger problem: are there many administrative regulations, departmental rules and so on, are they all in conformity with the Constitution? Administrative rules and regulations, which belong to the normative documents of the law, are also part of our legal system, but their legal status and legal effect are lower than the law, especially under the Constitution. Media law scholar Wei Yongzheng pointed out that this is not only the latter to obey the former, according to the provisions of the former, and not inconsistent with the former, and in the embodiment of the state's coercive power is also different.

We see that when the government legislation regulates the Internet, it lacks constitutional thinking and ignores the role of the Internet in realizing democracy, supervising public opinion and promoting the freedom of expression of citizens. The current Constitution 35th stipulates: "Citizens of the People's Republic of China have freedom of speech, publication, assembly, association, procession and demonstration." "As netizens, not only enjoy the freedom of speech protected by the 35th article of the Constitution, but also the right to criticize, complain, Sue and prosecute the state functionaries for their illegal and negligent acts according to article 41st." However, in recent years, the relevant regulations often set a prior administrative license for the free speech of citizens, which contradicts the provisions of the Constitution to protect the basic rights of citizens.

For example, the implementation of the "Internet Audiovisual Program Service Management Regulations" of January 31, 2008 requires that the network audio-visual programs require prior permission: "The Internet audio-visual program service, should be in accordance with these provisions of the radio and Film and television department issued by the competent authority for the dissemination of audio and video programs license" (hereinafter referred to as " Or to perform the formalities of filing. Failing to obtain the license issued by the competent department of Radio, Film and television in accordance with these provisions or performing the formalities of filing, no unit or individual may engage in the Internet audio-visual program service. The second article of the regulation says: "The services of the Internet audiovisual programs referred to in these provisions, refers to the production, editing, integration and provision of video and audio programmes to the public via the Internet, as well as activities to provide for the uploading of audio-visual programs to others, while the production, editing, integration and dissemination of audio and video are the freedom of speech of citizens (freedom of expression). Freedom of expression should not be subject to prior administrative permission, even if it is necessary to set up an administrative license, under the provisions of law eighth of the Legislative act, the restriction on the freedom of citizens ' freedom of speech is to restrict the basic rights of citizens, it is necessary to enact laws, and the provisions, as departmental rules,

Another example, the December 26, 2009 NPC passed the "People's Republic of China Tort Liability Act" 36th stipulates: "Network users, network service providers use the network infringement of other people's civil rights and interests, should bear the tort liability." If the network user uses the network service to implement the tort, the infringed person has the right to notify the network service provider to take the necessary measures such as deleting, shielding and disconnecting the link. If the network service provider fails to take the necessary measures in time after receiving the notice, the extended part of the damage is jointly and severally liable to the network user. The network service provider knows that the network user uses its network service to violate the civil rights and interests of others, and fails to take the necessary measures, and the network user undertakes joint and several liability. "This is a very typical reflection of the legislator's resistance to the freedom of speech and the supervision of public opinion." As we all know, in recent years, there has been a great deal of wonderful practice on the 41st article of the Constitution, the citizens use the right to know public information and the right to criticize the State organs and national staff, and to launch effective supervision of public opinion, however, such practice is likely to come to an abrupt halt due to tort law. The 36th article of Tort Law stipulates that the tort liability of the network expression, especially the network service provider, will undoubtedly make the newly arisen network supervision aborted, and endanger the citizens ' freedom of speech and the supervision space of the public opinion. This is not only a question of civil law, first of all constitutional issues.

When China entered the information age, the problem was not whether to regulate the Internet, but how to standardize it. In the field, this means two: first, use the existing law as much as possible; second, if the government makes mistakes, it should make too few norms. With so many difficult questions on the Internet, the government has not seen the best solution. Eventually, the Internet may lead to a new normative approach that is less coercive and more trusting of the power of individual freedom and civic autonomy.

In any case, there is a growing awareness that the excessive concentration of power in the public sphere poses the danger of abusing that power. Decentralization allows people to expose the improper behavior of the powerful. The more people have the power of supervision, the more widely they can monitor and propose different super-knowledge of potential problems. This process may not be a completely natural process. Even if we believe that the new situation will form organically, the problem is how long the process will be. Therefore, public policy intervention is also very necessary, but the policy agenda requires the participation of netizens, in which the free and open use of the Internet should be regarded as a universal right which can be enjoyed by anyone. We see that this is in line with the basic objective of China's Internet management as stated in the White Paper, "Promoting universal, accessible access and sustained and healthy development of the Internet".