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Expert Interpretation | Promoting Good Governance on the Internet Through Procedural Law

Updated: Aug 24, 2023

Recently, the Cyberspace Administration of China (CAC) released the "Administrative Enforcement Procedures for Internet Information Departments" (hereinafter referred to as the "Procedures"). The Procedures apply to administrative enforcement actions taken by internet information departments, covering jurisdiction and application, administrative penalty procedures, execution, and conclusion, and explicitly stipulate rules for filing cases, investigating and collecting evidence, conducting hearings, making administrative penalty decisions, and delivering notifications. The introduction of the Procedures provides internet information department law enforcement officers with a complete, transparent, and fair enforcement process, upholding the concept of procedural justice. It has significant practical significance for regulating and rationalizing law enforcement activities in the internet information field.

1. The Unity of Strict Rule of Law on the Internet and Strict Adherence to Procedures

As a means of rule-based governance, the rule of law is an important approach to regulating the order of the internet, maintaining the internet ecosystem, and protecting the rights and interests of participants. Currently, cyberspace has become a new domain of national governance, a new space for social activities, and a reflection of real-world relationships. To ensure the sustainable and healthy development of the internet, it is necessary to explore the path of internet governance using the principles of the rule of law. The more rapidly the internet develops, the more it needs to be governed strictly according to the law. In recent years, the internet information departments have been continuously increasing their efforts to combat illegal activities in accordance with their statutory powers. They have handled a number of influential typical cases, exposed and warned against illegal and irregular actions, demonstrating legal authority and ensuring the effective implementation of the principle of rule of law in governing the internet.

At the same time, it should be noted that the rule of law is both rule-based and procedural-based. There should be internal consistency between the strict rule of law on the internet by internet information departments and strict adherence to procedures. Exercising administrative power in accordance with the law does not mean that administrative entities can arbitrarily execute legal rules. It requires presenting the facts and reasons for law enforcement through participatory, open, and fair legal procedures, thereby transforming the formal rationality of legal rules into practical rationality supported by public reasons. Without effective, reasonable, and strict procedural norms for law enforcement powers, it is likely to lead to arbitrary exercise of power and affect the social effects of law enforcement. In this sense, a reasonable, efficient, and operational administrative enforcement procedural system helps achieve the goals of rationality, efficiency, and fairness in internet information department's administrative enforcement activities. The Procedures, based on the existing "Administrative Enforcement Procedures for Internet Information Content Management" (issued in 2017), have systematically optimized the administrative enforcement procedures of internet information departments, covering various enforcement stages and providing detailed regulations, especially regarding operational processes. The Procedures not only specify the procedural rights of parties involved, including notification, application for recusal, hearing, application for hearings, application for review, and litigation, but also provide detailed provisions on the working procedures that enforcement officers must adhere to, such as basic standards for initiating investigations and filing cases, requirements for writing case handling reports, and the applicable situations for collective decision-making. Additionally, the Procedures introduce a record-keeping system for the entire enforcement process, a social supervision system, and a legal review system for significant enforcement decisions, which provide necessary safeguards for supervising law enforcement activities and protecting legitimate rights and interests of relevant parties. It can be said that the clarity and improvement of the administrative enforcement procedures of internet information departments and their strict adherence during implementation will further safeguard the legal rights and interests of relevant parties and significantly enhance the level and capability of administrative enforcement by internet information departments.

2. The Unity of Strict Enforcement and Fair Enforcement

Enforcement on the internet should not only be strict but also fair. Strict enforcement requires law enforcement officers to adhere to the law without relaxation, distortion, or negligence. Without strict enforcement, the rule of law in cyberspace would be difficult to implement. After the enactment of laws and regulations, whether law enforcement agencies can adhere to the legal standards, respond promptly and efficiently to the requirements of internet governance, and effectively prevent and control illegal activities in cyberspace in accordance with their statutory responsibilities will directly affect people's sense of achievement and satisfaction with internet governance. Fair enforcement requires that law enforcement ensures that the parties involved receive and perceive justice. "Justice must not only be achieved but also be achieved in a visible manner." The norms of openness, transparency, and rationality in law enforcement procedures can constrain arbitrary and capricious behavior, embody procedural justice, and promote the acceptability and social recognition of law enforcement decisions through procedural fairness. From a social perspective, the higher the fairness of law enforcement procedures, the higher the degree of recognition from the parties involved and society, and the stronger the awareness of the rule of law in cyberspace, which is conducive to promoting pluralistic and good governance of internet governance.

In terms of fair enforcement, the "Procedures" first highlight the requirement of procedural neutrality. For example, it establishes a "recusal system" to avoid interference in case handling due to interests and personal biases. Secondly, it strengthens the rights of the parties involved to speak and participate in administrative enforcement processes. The most prominent improvement is the substantial enhancement of the administrative penalty hearing system based on the institutional foundation of the "Regulations on Content Management." This includes detailed enumeration of the applicable scope of administrative penalty hearings, extending the time for parties to apply for hearings from three days to five working days, emphasizing the public nature of the hearings, and making clear provisions on the exclusive effectiveness of hearing transcripts. Finally, it improves the procedural legitimacy requirements for evidence collection, such as emphasizing that "evidence should be verified as true before it can be used as the basis for determining the facts of a case. Evidence obtained by illegal means shall not be used as the basis for determining the facts of a case.

3. The Unity of Law Enforcement Intensity and Law Enforcement Temperament

As the Internet and society become increasingly intertwined, illegal activities in cyberspace can have significant impacts on the rights and interests of individuals and social order. In order to maintain social order and protect the rights and interests of individuals, it is necessary for the government to play a crucial role in cyberspace governance and regulation. Law enforcement in the field of cyberspace must be vigorous. However, the pursuit of law enforcement intensity does not mean rough or excessive enforcement. It is important to emphasize the value rationality of law enforcement and ensure that law enforcement activities are forceful, precise, and tempered.

The "Regulations" clearly embody the concept of balancing leniency and severity, and integrating legal principles, based on the corresponding rules expressed in the revised "Administrative Penalty Law" in 2021. For example, provisions such as "If the illegal act is minor and promptly corrected without causing harmful consequences, no administrative penalty shall be imposed" and "For first-time offenses with minor consequences that are promptly corrected, no administrative penalty may be imposed" not only make law enforcement activities more humane but also uphold the principle of combining punishment with education. Additionally, the regulations stipulate that "No administrative penalty of fine shall be imposed on the same illegal act committed by the party more than twice. If the same illegal act violates multiple legal norms and should be fined, the punishment shall be based on the higher amount of fine", which echoes the principle of "no repeated punishment for the same offense" in the "Administrative Penalty Law," enhances predictability for the parties involved, and avoids improper over-penalization. Furthermore, for those who are economically disadvantaged and subject to penalties, the regulations provide for installment payment of fines and a deferred payment process, offering certain protective measures for relatively vulnerable parties.

Overall, the "Regulations" revolve around the standardization, fairness, rationality, and humanity of administrative law enforcement activities in the cyberspace sector. It provides an important institutional foundation for China's cyberspace governance system and governance capacity building, enhances the fairness and effectiveness of administrative law enforcement activities, and further promotes the development of China's digital economy, digital society, and digital rule of law.



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