HKU Bulletin May 2020 (Vol.21 No.2)

The COVID-19 coronavirus outbreak that started in Wuhan this past winter triggered deep questions about the flow of information in Mainland China, as officials played down the threat until it became too big to ignore. To those who experienced SARS in 2003, the situation was depressingly familiar. Dr Clement Chen Yongxi of the Faculty of Law was an MPhil student during SARS. In 2002, he had witnessed the drafting of a new freedom of information regulation for Guangzhou – the first of its kind in China – and he was dismayed that it failed to make the municipal government more transparent about the SARS outbreak. The situation prompted his research interest in the gap between law on paper and law in action, and to observe: “What happened with SARS is closely related to what is happening now.” As in Guangzhou, the central government had ostensibly improved freedom of information with the 2007 introduction of the Regulation on Open Government Information (ROGI) which, ironically, was partly motivated by SARS and other cover-ups. But this failed to ensure prompt reporting about COVID-19. Whistle- blowing doctors in Wuhan felt compelled to go to social media about the threat rather than official channels such as news agencies, and they were summoned and disciplined by the police for their efforts. So why haven’t the lessons been learned? Dr Chen’s research over the past 12 years sheds light on the flaws – and progress – of information control on the Mainland. No right to monitor government Dr Chen said the ROGI was initially considered a positive step because for the first time in Chinese history, citizens had the right to demand information from their government. But two critical defects have limited its impact. One is that it conflicts with other laws which restrict disclosure of information and prevail over ROGI. The other is that it contains a wide scope of exemptions, including disallowing the disclosure of information that ‘endangers social stability’, which is not defined. This gives government agencies wide discretion to interpret things as they see fit. The judicial response to the government’s denial of access to information has been cautious. Courts examine closely the motive of the applicant, but subject agency claims to various degrees of scrutiny. As a result, they support information requests relating to the applicant’s personal interests, such as their property rights, but refrain from enforcing ‘watchdog requests’ concerning government accountability or the common good. “Some judges have even claimed that the right to information under ROGI does not amount to the right of monitoring the government. This is a bit ironic because the nature of freedom of information laws almost around the world is as an instrument to support democracy and allow citizens to monitor government operations,” he said. “This partly explains why, after 17 years, ROGI doesn’t prevent a public emergency similar to SARS from being covered up.” Dr Chen also finds connections between freedom of information and privacy and the new social credit system. Similar to ROGI requests, court rulings on privacy tend to support individuals seeking to protect Chinese law allows access to information on the one hand but restricts it on the other, which has a troubling impact on everything from virus outbreak controls to the country’s new social credit system. THE PARADOX OF INFORMATION CONTROL IN CHINA themselves from other private entities, such as individuals and corporations, but act differently on privacy claims against agencies holding public power, such as the government. “In the absence of a general law that regulates government collection and use of personal data, citizens find it difficult to sue the government for privacy violation. Nor is there an effective legal mechanism to guard oneself against government surveillance,” including the new social credit system, which is being rolled out across the country, he said. ‘Trustworthiness’ and double punishment The social credit system rates each citizen’s ‘trustworthiness’, but its operation deviates from legal principles such as proportionality and no double punishment. For instance, if a person is deemed ‘untrustworthy’ for failing to pay an administrative fine, that assessment will remain attached to their rating long after they face the legal consequences. As a result, they may encounter bans or difficulty in purchasing airline tickets, unfavourable rates on loans and other punishments. Moreover, the person will usually not be notified about their untrustworthy rating nor why it has been applied – they discover the rating only when they try to use a service, such as book a flight. “In classical administrative law, there should be no double punishment. If I rush a red light, I should be fined, but after I fulfil my legal liability, that is it. I would not be punished twice or three times for a single misbehaviour,” he said. Credit China is the official portal for promulgating policies of the social credit system and sharing data concerning the trustworthiness of individuals and entities. “This is entirely a new, strange way of decision-making. It overly focusses on the deterrent effect but without looking carefully into the rationale or severity of punishment.” Dr Chen is concerned about the challenges facing administrative law in China, given the slow response of the legal system to the datafication of society as demonstrated by the social credit system, and restrictions on freedom of information and privacy. “When ROGI came in, I hoped it could be a game changer for government transparency and accountability. The subsequent developments show otherwise,” he said. What happened with SARS is closely related to what is happening now. DR CLEMENT CHEN YONGXI 18 The University of Hong Kong Bulletin | May 2020 19 RESEARCH

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