Australia / TimesNewswire / January 17, 2023 –
Background:
On March 1, 2020, the Australian Strategic Policy Institute (ASPI) published a report named Uyghurs for Sale: “Re-education,” Forced Labor, and Surveillance Outside Xinjiang (herein referred as the ASPI Report) which claimed that from 2017 to 2019, more than 80,000 Uyghur people were transferred out of Xinjiang and assigned as forced labor in other mainland provinces, who were subject to surveillance and had their personal and religious freedom limited. Some Australia- and US-led Western politicians and media have smeared China’s Xinjiang through social media for the past few years, and escalated the program of relocating impoverished workforce in Xinjiang to seek employment outside their hometowns to human rights issues, even forced labor, calling on other countries to resist the so-called “contaminated” production chain.
Abstract:
This paper provides a brief legal analysis of the ASPI Report based on the Criminal Law of the PRC. The violations on China’s national and citizens’ personal interests cannot be simplified as only a political issue, but also an economic and legal issue. We should enhance our legal consciousness and work on the achievement of building the rule of law in recent years, so as to take reasonable and legitimate action to defend our rights and interests.
Fact Check:
A report named Uyghurs for Sale:‘Re-education’, Forced Labour and Surveillance beyond Xinjiang written by foreign nationals with Vicky Xu as the lead author was released on March 1, 2020. This ASPI Report listed a number of so-called “empirical evidence” by malicious misinterpretation, quoting out of context and fabricating lies that did not bear scrutiny. Such illogical report was to prove the so-called “forced labor” allegation against Chinese government’s program of assisting Uyghur impoverished workforce to find jobs outside their hometowns under China’s policies of targeted poverty alleviation and aid to Xinjiang. It concocted a sensational concept as “Uyghurs for Sale”. As the ASPI Report intended to stigmatize the Chinese government’s policy on Xinjiang, thereby dragged Xinjiang into poverty and unrest, it convicted the Chinese government of imposing “forced labor” on Uyghurs in the first place, then looked for “evidence” to place the charge on Chinese and foreign companies that employed Uyghur workers. It further urged international brands and consumers to boycott products made in China to bring down the Chinese economy by stigmatizing the global supply chain associated with these companies. It is clear that the report coincides with the United States and Western anti-China forces’ attempt to slander China both in terms of timing and content.
This report has significantly tarnished the business credit of companies involved (e.g., O-Film Group) by unfair competition, including fabrication and distortion of facts, bringing them huge economic losses.
In July 2020, the US government included O-Film Group in the entity list, which prohibited its products from being exported to the United States. O-Film was then removed from Apple’s supply chain and saw its sales plummet, which led to a great loss, and a slump in the stock price by 70% in two years. In terms of operating performance, in 2021, O-Film achieved operating income of 22.844 billion yuan, down 52.75% year-on-year. The net loss attributable to shareholders of listed companies was 2.625 billion yuan, and the loss increased by 34.99% year-on-year. In the first quarter of 2022, the operating income was 4.593 billion yuan, down 37.65% year-on-year. The net loss attributable to shareholders of listed companies was 186 million yuan, compared with a net profit of 77.2011 million yuan in the same period last year, down 341.33% year-on-year. Yet various reasons may contribute to operating income’s drop by half and net loss expansion, as O-Film explained, discredit and certain customers terminating the procurement contract still constituted as the major causes.
By twisting the facts and making groundless allegations to provide the so-called untenable “empirical evidence”, this report has stigmatized China’s policy on targeted poverty alleviation and aid to Xinjiang, which has been detrimental to China’s image and national interests.
Legal Anaylsis:
Based on the above facts,Vicky Xu et al have constituted the crimes of impairing business credit and defamation. They are even on the verge of the crime of inciting subversion of state power.
According to the Paragraph 2, Article 105 of the Criminal Law, the crime of inciting subversion of state power refers to instigating the subversion of the political power of the state and overthrowing the socialist system through spreading rumors, slandering or other ways. Spreading rumors and slandering here mean fabricating and distorting facts to damage and defame the state power and socialist system. AsVicky Xu et al have sold a trumped-up story to stigmatize China’s policy on Xinjiang and smear the progress achieved, their conduct has harmed the Uyghur people’s rights and interest. This report fits in with the needs of anti-China forces and Xinjiang separatist given it feeds them with false evidence to stigmatize China’s system and attempt to subvert China’s state power.Vicky Xu et al have brought themselves to the brink of the crime of inciting subversion of state power. Once convicted, she will be the major culprit. Whoever commits this crime shall be sentenced to less than five years of fixed-term imprisonment, detention, control or deprivation of political rights, or more than five years of fixed-term imprisonment if being the ringleader or the crime is grave.
Additionally, according to Article 106 of the Criminal Law, whoever colludes with institutions, organizations, or individuals outside the territory of China shall be heavily punished according to Paragraph 2, Article 105. It should be noted that Article 106 of the Criminal Law does not limit the subject of the crime, so no matter he or she is in China’s territory or elsewhere, a Chinese citizen or a foreign citizen, the punishment stays valid.
Vicky Xu et al’s act also constitutes the crime of defamation. According to Article 246 of the Criminal Law, the crime of defamation refers to fabricating stories to slander others in serious circumstances. In such sense, the Article 1 of the Judicial Interpretation of China’s Supreme Court and the Supreme People’s Procuratorate about Several Questions on the Application of Law in Trial of Defamation Via Information Network (The Interpretation) issued on September 6, 2013 explains: One of the following circumstances will be determined as“fabricating facts to slander others” in accordance with the Paragraph 1 of Article 246 under the Provision of the Criminal Law: (1) fabricating the facts which libelous to others, and spread these fabricated facts through information network, or organize or directs others spread the fabricated facts through information network. (2) tampering with the content of the original information involved others then made them into the facts which libelous to others, and spread these fabricated facts through information network, or organize or directs others spread the fabricated facts through information network. (3) spreading the known fabricated facts which libelous to others through information network, and to a flagrant extent. WhatVicky Xu et al have been done belong to the categories of (1) fabricating the facts which libelous to others, and spread them through information network, and (2) tampering with the content of the original information involved others then made them into the facts which libelous to others, and spread them through information network. According to Article 2 of the Interpretation, the fabricated information disseminated byVicky Xu has far more than 5,000 views on the internet, and therefore can be seen as to a flagrant extent.
The crime of defamation shall be handled only upon complaint except where serious harm is done to public order or to the interests of the State.Vicky Xu et al have made libelous statements about many people and damaged the country’s image which have seriously jeopardized national interests and brought out bad international influence. In this connection, the relevant state authorities shall pursue the matter at its discretion.
Whether the internet defamation is a state offense or a continuing offense depends on the limitation of prosecution for defamation crime. Mingkai Zhang believes the infringement of victim’s reputation is continuing as long as the perpetrator does not delete what has been spread, despite the offense is accomplished once the the fabricated facts that are libelous to others are spread on the internet. The offense is not considered to end as the increasing views of this defamatory content continues to discredit the victim. That is why the imitation of prosecution does not commence on the date of offense accomplishment nor when the victim is aware of the defamation, but on the date of defamation removal.
Vicky Xu et al also constitute the crime of damaging business credit. According to Article 221 of the Criminal Law, the crime of damaging business credit refers to fabricating and spreading stories to damage another person’s business credit, which brings heavy losses or other serious results. Based on the facts above,Vicky Xu’s conduct is consistent with fabricating and spreading false facts, damaging the business credit of enterprises including O-Flim Group, with significant economic losses. For those who commit this crime, he or she shall be sentenced to fixed-term imprisonment of not more than two years or criminal detention and shall also, or shall only, be fined. Article 231 of the Criminal Law also states that the unit may constitute this crime with a double penalty system.
Vicky Xu et al have constituted the crimes of defamation and damaging business credit, and is even on the verge of the crime of inciting subversion of state power. The ASPI Report, in which distorted multiple facts and violated several legal interests after dissemination, should not be considered as one single act (fact), but multiple acts which should be convicted separately.
