The Search For Toothache MM
(yWeekend) Tianya Does Not Accept Responsibility For "Internet arrest warrant." By Zhang Medi. January 11, 2007.
Ever since being named as the target of an "Internet arrest warrant" posted at the Tianya forum, Hunan resident Zhang Pu's real life was subjected to a great deal of harassment. Last September, he sued Tianya Online Network Technology Limited Corporation in court. On January 4, he received the court verdict and vindicated himself.
Even today, he still has no idea how he was dragged into a battle of saliva on the Tianya forum. He was branded a "fugitive" on the Internet, and his home telephone number, his mobile telephone number and his private information were all published.
When Zhang Fu was unable to locate the netizen who initiated the incident, he sued Tianya in anger and hoped that the judicial system could put a full stop to this absurd episode of the "Internet arrest warrant." Tianya lost the initial trial, but the legal specialist at the company informed our reporter that the company intends to appeal the verdict.
In the battle of saliva at Tianya, Zhang Fu became the target of a netizen named Toothache MM (or Toothache Little Sister). On June 14 last year, Toothache MM published a post titled <Someone is libeling me in a magazine; the public security bureau is investigating, and the consequences may be serious> and published the home address of Zhang Fu and the fact that his 8-year-old daughter was adopted; it also said that Zhang Fu had previously been detained and is now a fugitive from the law. On June 17, through the complaints by Zhang Fu, Tianya deleted all the posts that contained personal information.
After his private information was published, Zhang Fu received a large number of nuisance telephone calls. Since he was unable to locate Toothache MM, he sued Tianya in court for violation of privacy. The trial took place at the People's Court in Taojiang county, Hunan province. The result was a loss for Tianya, which was required to pay 30,000 RMB in damages and a public apology.
On January 4, Zhang Fu obtained the verdict document from his lawyer. Although he won this case, his greatest regret was that he has not been able to find Toothache MM.
Our reporter checked the online history of Toothache MM. The last time was at 11:31 on December 1, 2006. Toothache MM has not shown up since.
After the incident, Zhang Fu attempted to find Toothache MM through the clues provided by netizens. For this purpose, he read more than 1,000 forum posts. "I have read all the posts that either praised or condemned her." According to the contact information provided by netizens, "I made a telephone call and a Mr. Peng received the call. He denied that he is Toothache MM and warned me not to call or else he would charge me with slander."
Zhang Fu had tried to locate Toothache MM through Tianya. "At the court on September 21, Tianya legal specialist Ms. Su said that she can only offer me an IP address. What is the use of me suing an IP address?"
"I complained repeatedly to the Tianya administrators. I demanded that they ban Toothache MM permanently from the Tianya forum, I asked the Tianya representative to write a personal letter of apology and so on. They ignored me completely. So I was ultimately forced to sue in court." Zhang Fu believes that the Internet information provider Tianya "had disseminated information that insulted and libeled me and must therefore accept legal responsibility."
Zhang Fu believed that Tianya was slow in deleting the posts. There were three posts that revealed his private information. Under the insistent complaints from Zhang Fu, Tianya deleted those posts on three separate occasions. "I sent in a total of 136 complaints during the process. The deletions were completed 35 hours after I began to complain."
So who leaked his private information? That is an unsolved puzzle for Zhang Fu.
Zhang Fu speculated that leaker was a friend named "Ms. Minmin" in Shanghai. "Ms. Minmin is the girl that I know best. She knows more about my personal information than anyone else. I heard her say that she had contact with Toothache MM before. I speculate that Toothache MM must have gotten my data through Miss Minmin."
Were Zhang Fu's speculations correct? He is unsure.
"It is a minor thing if I was the only one dragged into this. But my mother and my daughter should not have been involved." Zhang Fu believes that even though the incident took place half a year ago, there is still a dark shadow in his life.
Due to the constant stream of strangers calling his home telephone, the daughter has learned that she was adopted. "My daughter cried for one whole afternoon because she did not like a clothing item. After she found out about her history, she has been very emotional sensitive."
The 78-year-old mother has become emotionally volatile. "When strangers call, including certain reporters, she would curse them out."
"Tianya intends to appeal the verdict. That is for certain." When our reporter called the Tianya legal specialist Su Xueying, she told us firmly about Tianya's attitude.
Tianya refuses to accept the sentence because "the verdict did not cite any precise legal article and therefore we believe that the verdict has no legal basis."
As for Zhang Fu's demand to provide the real address of Toothache MM, "we really do not have the information. She reached us through some Internet connection. We can look up the IP address, but we cannot just give it to Zhang Fu. Just because someone makes a telephone call does not mean that we must provide him with the IP address. He can go through the public security bureau and the law enforcement departments to make the request, and we will cooperate with that."
Su Xueying does not believe that Tianya is responsible for finding Toothache MM. "He is the victim. He can ask go through the courts to send a letter to request for Toothache MM's IP address. He can look up the location of that IP address and ask the local public security bureau's Internet monitoring department there to find Toothache MM."
Presently, monitoring of contents posted by netizens is done after the fact. "The filtering capabilities at Tianya can only automatically filter certain opinions related to current affairs, such as those that oppose the Party and the nation. We cannot filter personal information. Most forum masters will deleted something that lists names and telephone numbers, or else they are deleted as soon as complaints are received."
So what kind of monitoring can be considered timely? "There is no clear definition under the present laws. The judge is free to decide." Su Xueying believed that Tianya deleted the posts about Zhang Fu in a timely manner.
Actually, this lawsuit has caused Tianya to reflect upon the gaps in its monitoring process. Su Xueying said: "We will be even stricter in the future about the monitoring. We will increase the number of forum masters. We will manage and train our forum masters better. We will also improve our technical capabilities for monitoring."
During the period while Zhang Fu was suing Tianya over the "Internet arrest warrant," the instigator Toothache MM has not appear as a real person. What was going through his/her mind while posting this "Internet arrest warrant"? Was the outcome of the "Internet arrest warrant" satisfactory? Did he/she realize that there was a basic problem with the concept of the "Internet arrest warrant" itself?
Will this particular lawsuit make the "Internet arrest warrant" itself fodder for future legal actions in the future? Does Tianya's loss means that the hubbub of the "Internet arrest warrant" has been pushed into a legal dead-end? Our reporter spoke to Chinese Remin University Commercial Law professor Yang Lixin.
"The Internet arrest warrant is an illegal act. It is wrong in itself." Yang Lixin determined the "Internet arrest warrants" to be "illegal."
He believes that the only legally effective arrest warrant comes from the public security department. A netizen does not have the right to "seek the arrest" of others. "Arrest" is a term used in a criminal proceeding. To issue an "Internet arrest warrant" with a name is to violate the rights of the other party. The actions of netizens on the Internet are not completely beyond legal constraints.
In all the incidents of "Internet arrest warrants" last year, the purpose was usually one of two reasons: those that are based upon personal interests and those that are based upon public interests.
Yang Lixin believes that "there is basically no progressive meaning in Internet arrest warrants, but there are problems of violation of rights. Even if you were well-meaning at first, you did not need to use an Internet arrest warrant. An arrest warrant treats the other party as a criminal. It is best not to use a term such as an 'arrest warrant.'"
Yang Lixin believes that any arrest warrant based upon private interests is basically violating the rights of others. As for "Internet arrest warrants" based upon public interests, he believes: "This can be considered not to involve violation of rights, as in the especially abominable case of the torture of cats. If the photographs of the principals are located and published during the search, there isn't a big problem."
In the Zhang Fu affair, did Tianya have cause to feel wronged and want to appeal?
Yang Lixin said: "The Internet forums control the contents through a certain process, but they cannot review each and every piece beforehand. This is different from the rights violation cases that occur in traditional media. This is because the forum cannot monitor before publication. They do not have the technology or the energy."
"As for the victim, the website was obviously violating his rights. But you cannot ask the website to assume the responsibility first. The person who posted the information has the foremost responsibility. The website has the responsibility to help find the poster. If the website refuses to delete the post or else does not delete it in a timely manner (such as delaying for two to three days), then the website should be held responsible."