There has been a flood of scholarship on the importance of information to governance in recent years, focused on democratic and authoritarian countries alike. Scholars have recognized a shift in authoritarian regimes from rule by force and fear to increased use and manipulation of information as a way to build popular support and stay in power.
Direct censorship remains a tool of authoritarian control, but authoritarian rulers also turn to other strategies to crowd out critical voices, including information flooding, distraction, manipulation of public opinion online, and the creation of technical barriers to those seeking information.
Authoritarian countries have also borrowed governance mechanisms from liberal systems, including greater use of transparency as a tool for addressing a range of challenges.
Borrowing runs both ways, with elected leaders in democratic as well as newly authoritarian states borrowing from authoritarian playbooks to cement their authority.
Despite this burgeoning conversation about the centrality of information management to democratic and authoritarian governments, scholars are only just beginning to address the role of legal information in sustaining authoritarian rule. Scholarship on the spread of authoritarian law has largely focused on how authoritarian rulers subvert legal norms or use law and courts to maintain social stability, foster economic development, or boost their own legitimacy.
There has been less attention to how such states build narratives about their legal systems or the role of legal information in such systems.
Rapid digitization of court information has brought renewed focus both to the lack of legibility in legal systems around the world and to the question of how courts produce and use public information.
Courts play essential roles in information management: Courts are sites where information about law is negotiated, and their decisions about whether and how to publicize case outcomes have the potential to shape public perceptions of the legal system, society, and the state more generally.
This lack of attention to legal information stems in part from two common beliefs: Liberal legal systems are inherently transparent, and authoritarian legal systems closely guard information. Sustained scholarship has detailed problems with transparency and legibility in the U.S. legal system.
At the same time, authoritarian legal systems, most notably China, have begun to put vast quantities of legal information online, with more than 141 million court judgments posted online since China’s Supreme People’s Court (SPC) established the China Judgements Online (CJO) website in 2014.
This Essay presents a case study showing how legal information can be manipulated: through the deletion of previously published cases from China’s online public database of court decisions. Using our own dataset of all 42 million cases made public in China between January 1, 2014, and September 2, 2018, we examine the recent deletion of criminal cases from the CJO website. Our data suggest that the reasons court officials remove cases are often reactive and ad hoc. But, taken together, the decision(s) to remove hundreds of thousands of unconnected cases shape a narrative about the Chinese courts, Chinese society, and the Chinese Party-State.
Literature on authoritarian regimes has explored why such states embrace transparency.
In this Essay, we ask different questions: What previously public information is removed, and why? Media accounts of the recent case removals in China frame case deletions largely as efforts to shield the Chinese legal system from international scrutiny.
In contrast, we find that the deletion of cases likely results from a range of overlapping concerns. These include the international and domestic images of Chinese courts, institutional relationships within the Chinese Party-State, worries about revealing negative social phenomena, and concerns about copycat crimes. We identify a trend of “sensitivity contagion,” in which a small number of potentially sensitive cases leads to the removal of all cases involving certain categories of crimes, despite most cases being routine. These concerns reflect the multiple audiences for the public release of court data in China. Viewing disappeared cases also provides a window into fault lines in Chinese society, revealing areas of sensitivity largely overlooked in prior scholarship.
Our findings also provide insight into the interrelated mechanisms of censorship and transparency in an era in which data governance is increasingly central. We highlight how courts seek to curate a narrative that protects them from criticism and boosts their standing with the public and within the Party-State. Prior writing on authoritarian legal systems has generally assessed courts’ power in terms of their ability to decide cases on the law absent external influence or to rule against other state actors.
Examining how Chinese courts manage the removal of cases suggests that how courts curate and manage information disclosure may also be central to their legitimacy and influence.
The findings we present reflect the Chinese political–legal system. Yet the questions raised are likely to have wider application as legal systems worldwide confront how much information to make public, how long information should remain public, who should determine when information is removed from the public domain, and the effect of mass digitization of court information on court and litigant behavior. Chinese courts may be unusual in their emphasis on equating the total number of cases made public to the fairness of the legal system and for the reasons they remove cases from public view. But they are unlikely to be alone in determining that not all court information should remain public or in seeking to use legal information to shift how they are perceived.
This Essay proceeds in five parts. Following this introduction, Part I discusses the background to Chinese courts’ embrace of transparency in the 2010s through the mass publication of court judgments, as well as more recent signs of and probable reasons for the retreat from such policies. Part II provides a brief overview of three relevant but largely disconnected strands of academic literature that provide a conceptual background to this Essay: scholarship on transparency in authoritarian regimes, writing on censorship in China, and studies of how authoritarian states manage information to maintain power. Part III turns to our study of cases deleted from the China Judgements Online website, setting forth our methodology and findings regarding the deletion of criminal cases from the site. Part IV analyzes the categories of deleted cases in detail, highlighting broad categories of deleted cases: cases involving potential criticism of the courts or legal system, and cases that involve negative social phenomena or potentially portray other political–legal institutions in a negative light. Part V discusses the implications of this Essay’s findings for theories of authoritarian information management and for understanding the role and authority of courts in authoritarian regimes. The Essay ends with a brief conclusion, noting that the issues and questions this Essay raises may not be limited to authoritarian legal systems.