How a History of Censorship Shaped Ireland and China’s Initial Approaches to

HOW A HISTORY OF CENSORSHIP SHAPED IRELAND AND CHINA’S INITIAL APPROACHES TO INTERNET REGULATION

Emer Nolan

Internet regulation became a pressing legal issue for states from the moment it became widely available to the public. The question of balancing citizens' freedom of speech with the need for the protection of vulnerable users has been answered differently by different actors such as governments, internet service providers and international organisations. The subject of this article is a comparison of the different early approaches towards internet regulation taken by Ireland and China, two countries that had previously adopted similar positions in relation to censorship.

The History of Censorship in Ireland – The Influence and Legacy of the Catholic Church

The name chosen for the Government appointed ‘Committee on Evil Literature’ of 1926 is a strong indicator of Ireland’s early attitude towards censorship and its acceptance of its importance within society. The constitutional offence of blasphemy that applied to all publications within the state up until the 2018 referendum, bears little resemblance to the role of the Roman censor in maintaining control over the empire. Meanwhile in Ireland, under the Censorship of Publications Acts 1929-1967,1 the Censorship of Publications Board was empowered to censor ‘the publication or the sale and distribution of unwholesome literature.’2

An example of the influence of the Catholic Church over Ireland’s ‘draconian’3 censorship regime, is that of information pertaining to abortion and contraception. The denial of this information to women and their families for decades demonstrates the strength of the legacy left by the Church in relation to censorship. The Irish censor James Montgomery, tasked with the role of determining which films should be banned or have cuts made in Ireland from 1923 to 1940, published works such as ‘The Menace

1 Censorship of Publications Acts 1929-1967. 2 ibid. 3 Kevin Rockett, ‘Protecting the Family and the Nation: The official censorship of American cinema in Ireland, 1923‐1954’ (2000) Historical Journal of Film, Radio and Television, 20(3) 283-300.

of Hollywood’ and acted as a ‘moral sieve’ for films of an un-Christian nature.4 His successor Dr Richard Hayes changed the title of the 1940 film ‘I Want a Divorce’ to ‘The Tragedy of Divorce’.5 Efforts were made to challenge the law in this area in cases such as Melton Enterprises Ltd v The Censorship of Publications Board Ireland.6

The move away from such a paternalistic censorship structure took place in 2008 with the change in title to the ‘Classifier of Films’. The mission statement of the Irish Film Classification Office (IFCO) states that the aim of the office has the protection of young people at its core and references freedom of expression.7 This is a clear demonstration of the societal change that has taken place in Ireland, and the need for public bodies and legislature to reflect this change.

The History of Censorship in China – Mao’s CCP and the Legacy of Imperial China

The Censorate, established during the Qin dynasty (221-207BC) was an organ of political and administrative control that has been a part of China’s governmental structure for over two millennia. Although this was a tool of surveillance rather than censorship, it has significance when the control of media and thought that exists in present day China is considered.8

Government control of the media under the leadership of Mao Zedong could be considered ‘among the most complete control’ of information possible for a country.9 The control that the government exercised over the media rendered journalism little more than a mouthpiece for CCP rhetoric and propaganda.10 These sweeping censorship measures included not only the banning of specific publications, but also encouraged an environment of self-censorship where citizens reported their friends and family to authorities.11

4 ibid. 5 ibid. 6 Melton Enterprises Ltd v The Censorship of Publications Board Ireland [2003] IESC 55. 7 Irish Film Classification Office, Annual Report of the Director of Film Classification [Department of Justice and Equality] 2017. 8 Charles Hucker, ‘The Traditional Chinese Censorate and the New Peking Regime’ (1951) American Political Science Review 45(4) 1041 – 1057. 9 Margaret E. Roberts, Censored: Distraction and Diversion Inside China's Great Firewall (Princeton University Press 2018) 99–109. 10 Susan Shirk, China: Fragile Superpower (OUP 2007); Roberts (n 9). 11 Roberts (n 9).

Through the transition to a market economy under Deng Xiaoping beginning in 1978 a change in the provision of information to citizens also took place. In order to reduce the economic burden being placed on the government, control over the media was loosened.12 This transition simultaneously saved the government money and aided the move towards an open economy. Although freedom of expression did not exist in the way that it does in countries such as the United States, enforcement was loosened especially in comparison to the Mao era.13 However, the state retained large amounts of control over the media, through implicit and explicit means. An example of this control being exercised is the media block that followed the events leading up to, during and after the Tiananmen Square protests in June 1989. The lack of widespread internet access at the time aided the government’s control over coverage of the events, however the protests marked a turning point in the information control strategy employed.14

Drawing a parallel between the roots of censorship in Ireland and China, it is interesting to observe the lengths that both nations were willing to go to in order to control public opinion, albeit with different motivations. The influence of the Catholic Church and it’s need to control the morality of the people of Ireland through the banning of films and other publications is not incomparable to Mao’s desire to promote Party ideology and Leninist principles.15

Early Internet Regulation in Ireland – a Slow Response

Internet regulation in Ireland has been slow to develop, to the detriment of user safety. Rather than issuing one comprehensive Bill addressing internet regulation, pre-existing legislation has been amended and interpreted so as to cover legal issues surrounding expression on the internet. Some elements of the online sphere were provided with specific legislation in the early years of the internet, such as the Electronic Commerce Act 2000. However in other cases a different approach was taken, the Non-Fatal Offences Against the Person Act 199716 which covered the criminal offence of harassment, despite the availability of the internet to the general public at the time of its publication, made no reference to potential online harassment. Provision is made for communications ‘by telephone’.17 This is an area in which no early response to the

12 Lynch (1999, Chapter 2). 13 Roberts (n 9). 14 ibid. 15 ibid. 16 Non-Fatal Offences Against the Person Act 1997 10(1). 17 ibid.

internet existed and the archaic nature of the legislation18 hindered efforts to combat cyber harassment and communications via the internet that could potentially be censored.

Difficulty was also encountered in the drafting of the Child Trafficking and Pornography Act 1998 in relation to internet regulation. This is an area where internet regulation and a limitation on freedom of expression in order to protect vulnerable users appears paramount as the existence of the internet facilitates crimes against them.19 However, the rapid development of internet technology led to difficulties surrounding the Acts provisions, soon after it was commenced.20

Early academic comment regarding internet regulation’s possible impact on freedom of expression indicated that protection of the common good should be paramount, particularly in relation to vulnerable users.21 It was noted that while taboos about sex have declined in Irish society, that child pornography is still considered highly offensive and merits restricting rights of free expression and speech.22

Early Internet Regulation in China – a Sweeping Approach

By 1995, it was decided that to open China up to the internet would be in the country’s best interest, to promote economic growth. With this expansion, came strategic limitations to freedom of expression and censorship.23 The CCP regulation of media takes the form of multilevel management,24 with the Central Publicity (also known as propaganda) Department (CPD) and the State Council Information Office (SCIO) as the principal censors.25 The SCIO is responsible for regulating internet news sites and was established in 1990, ahead of any Irish legislation.26 The State also maintains a

18 Michael O’Doherty, Internet Law (Bloomsbury 2019) 8.88. 19 ibid 8.02. 20 ibid 8.27. 21 Rosemary Horgan, ‘Child Pornography and the Internet—Freedom of Expression Versus Protecting the Common Good’ (1999) IJFL 2(3), 7-9. 22 ibid. 23 Roberts (n 9). 24 Shirk (n 10). 25 ibid. 26 ibid.

monopolistic position over internet infrastructure. State owned companies own at least 51% of all nine (state licensed) Internet Access Providers.27

A hint at regulation was made in the Ordinance for Security Protection of Computer Information Systems in 1994, demonstrating the strict approach that China planned to take when regulating this new forum. The first official internet regulation legislation was announced in 1996, the Interim Provisions Governing Management of Computer Information Networks. Four categories of information were initially prohibited from being produced or transmitted online. These are information that would harm national security, disclose state secrets, threaten social stability, or promote sexually suggestive material (art 13).28 These regulations were published in 1998 and swiftly followed by the Measures for Managing Internet Information Services (Measures, 2000). These regulations expanded the scope of the regulations published previously.29 This excerpt from Article 15 of the 2000 Measures demonstrates the broad and vague nature of the regulations on internet speech in China, even in their conception:

ISPs (internet service providers) shall not produce, reproduce, release, or disseminate information that contains any of the following: 1) Information that goes against the basic principles set in the Constitution; 2) Information that endangers national security, divulges state secrets, subverts the government, or undermines national unity; 3) Information that is detrimental to the honour and interests of the state ··· 6) Information that disseminates rumours, disturbs social order, or undermines social stability ··· or 9) Other information prohibited by the law or administrative regulations.

Conclusion

The very slow attempts at regulation by the Irish legislature throughout the late 1990’s, early 2000’s, are a stark comparison to the swift, sweeping approach taken by China simultaneously. After tracking the societal changes that had taken place within both countries throughout the 20th century it could be said that these changes impacted significantly both the government's ability and willingness to restrict freedom of expression on the internet.

27 Haiping Zheng, ’Regulating the Internet: China’s Law and Practice’ (2013) 4 (1) Beijing Law Review 2013, 37-41. 28 ibid. 29 ibid.