Nude Chat Is Not Illegal In China

This story is taken from Legal Mirror via Sohu.  Here is the situation itself.

On September 28, the State Council's General Administration of Press, the Ministry of Public Security and the Ministry of Information Industry joined in a special effort against those who use "nude chats" and other types of pornography-for-profit businesses.

On November 14, the Public Security Bureau's Public Information Network Safety and Monitoring Bureau announced that the police had received more than 1,600 tips from the general public about 'nude chats.'  From these tips, the police built 396 cases, arrested 221 suspected criminals and disciplined 370 other persons involved in the case.

Yesterday, the reporter learned that the Dongcheng Procuratorate that they have recently received an Internet "nude chat" case.  Upon information, this is the first 'nude chat' case ever in Dongcheng and also the first such announced case in Beijing.

The 43-year-old male named Chai is a temporary worker at a certain Beijing unit and his job duty is to maintain computers.  Usually, Chai's favorite hobby is to do Internet chat.  At the end of July this year, a certain male netizen named Dada whom Chai enjoys chatting with suddenly told him one day: "Let me take you a good place -- audio-visual chat!"  So Chai followed the instructions and arrived at the chat room known as "Young women" at 263.com's EConversation audio-visual chat section.

To Chai's surprise, this was a 'nude chat room.'  There were males and females inside.  Including Chai, there were five men and one woman, with a married couple.  Within the chat room, everybody chatted in the nude.  The couple even engaged in some sexual activity.  Those who enter this chat room must be "good Internet friends" who have received the secret code from "good acquaintances."  Very soon, Chai was immersed in it.

On August 9, the Beijing City Internet Monitoring Department went through 263.com and saw that there were five men and one women engaged in pornographic shows in the Young women chat room.  Upon investigation, they were able to find Chai.  Chai admitted that he did it, and the Public Security Bureau then asked the Dongcheng Procuratorate to approve the arrest of Chai for the crime of "disseminating pornographic materials."

But is there even a crime here?  It turns out that many people are unsure.

Concerning the nature of Chai's case, the prosecutors Zhao Gehua and Han Xiaorong told the reporter: "According to the situation in this case, it is very difficult to say that there was a criminal act to disseminate pornographic materials.  Under the existing laws, it is inappropriate to treat this as a criminal offense.  This is because first, the only people who can enter the chat room are also the performers; second, according the to Public Security Bureau, there is no way to estimate the number of visitors to that chat room."

According to Zhao Gehua, in September 2004, the Supreme People's Court and the Supreme People's Procuratorate issued a judicial explanation concerning pornographic activities on the Internet: "The judicial explanation was that the punishment for the distribution of pornographic materials shall depend the numbers for hits, pictures and words on the web site.  But there is no clear requirement for an audio-visual pornographic crime such as 'nude chat.'  So this is going to make it difficult to specify the crime."

Prosecutor Han Xiaorong said: "Concerning pornographic performances, the punishment is usually for the crime of organizing.  But organizing pornographic performances usually means presenting a performance to an audience at a certain locale.  This does not fit the situation of this case.  Besides, Chai was not the organizer."

According to China University of Politics and Law criminal law professor Pei Guangchuan, it is not correct to characterize this as a "crime of disseminating pornographic materials" because "the body does not equal materials."  "For now, the law is blank insofar as any clear requirements for 'nude chat' are concerned.  I would recommend the relevant departments to organize expert scholars to study it in terms of criminality or public opinion."

People's University of China doctoral student Zhang Zhiyong analyzed that Japan, the United States and other countries have addressed the 'nude chat' problem in terms of crimes that "endanger public morals."  He suggested that the appropriate actions for now should be administrative penalties (such as detention or fines) and labor re-education.

Prosecutor Han Xiaorong believes that the gender of the "nude chat" participants is not the key factor in determining whether 'nude chat' is a crime or not.  If it involves illegal profits and organized pornographic performances, then it would not matter if the "nude chat" was with persons of the same or opposite sex.  "Same-sex 'nude chat' may also cause bad social influence.  The public security and the procuratorate should also step in."

What happens when a married couple or a one-on-one non-organized and non-profit couple wishes to engage in passionate chatting?  Is that a crime?

Prosecutor Zhao Gehua told the reporter that there is no clear legal regulations about this problem.  More often, it depends on people's own standards and knowledge.  Presently, there is usually no punishment.

So the verdict on 'nude chat' is conditional.

There are three types of 'nude chat.'

1. It is an organized pornographic performance in which someone is providing an Internet venue with guidance and tolerance; there are paid 'nude chat' performers; and the purpose is to obtain economic profit.
2. It is an Internet public conference in which people provide pornographic performances for each other; this is no different from performing such acts in public space in the real world.
3. It is peer-to-peer and invisible to outsiders.

From the report in Liaoning Legal News, the first two are obviously illegal and can be prosecuted through the relevant laws.  The efforts made by the State Council's General Administration of Press, the Ministry of Public Security and the Ministry of Information Industry were directed against these two types of pornographic activities through the Internet chat services.  The third type that has no organization and guidance are difficult to prosecute.  But the organizers may not be the performers themselves.  For example, in the Internet chat services, there are often obviously suggestive and indicative phrases such as "passionate men and women," "men and women enjoy," "E-night passion" and so on.  These types of come-on's were obviously allowed by the Internet operators and the purpose was to make sure that young men and women engage extensive in this type of 'nude chat' so that the  operators can obtain direct or indirect gains.  This can still be considered a form of organized activity for profit.