Joe Benjamin, an expert in cross-border disputes and transactions in China and a partner at Elliott Kwok Levine & Jaroslaw, has been focusing on this area. He is also a registered arbitrator of the Shenzhen Court of International Arbitration.
In recent years, Western multinationals including Mercedes-Benz and Marriott International have come under fire from Beijing for inadvertently touching on sensitive topics in advertising and customer communications, accusing them of “hurting the feelings of the Chinese people.”
In such cases, the company being blamed is often quick to apologize and ask for forgiveness. But soon there may be a greater price to pay.
Recently, Chinese legal academics and lawyers have drawn attention to a provision in a draft amendment to the Public Security Administration Punishment Law, which is currently undergoing public comment, that would prohibit “hurting the feelings of the Chinese nation” Behaviors and Commodities”.
The unprecedented proposal sparked an uproar and may represent the largest grassroots backlash against a new Chinese law in decades. For many, the language in the draft was reminiscent of the incident last year when a young woman in Suzhou was detained simply for taking a selfie in a kimono in public.
Some Chinese are asking whether the new law will make it illegal to eat sashimi or read Japanese comics. The authorities had not made the proposal public but have remained silent.
However, in the past, activities such as mocking the People’s Liberation Army, awarding a Nobel Prize to a dissident writer, and meeting the Dalai Lama have been deemed by government spokesmen or state media to have “hurt the feelings of the Chinese people.”
The law would expand police powers, although the definition of “hurt feelings” remains vague. Chinese criminal law experts call the Public Security Administration Punishment Law a “mini-criminal code.” Police already rely on it to detain suspects without formal charge or arrest. In cases of “hurt feelings”, police will have the power to issue fines and detain violators for up to two weeks.
Journalists, financial analysts and lawyers may worry about whether their work will be seen as “hurting the feelings of the Chinese people.” A pessimistic view of the Shanghai stock market or a requirement for corporate disclosures to comply with the U.S. Uyghur Forced Labor Prevention Act could be considered misconduct.
If disclosures based on U.S. regulations and laws violate Chinese law, then China will indeed become “unsuitable for investment” from the perspective of foreign investors.
Last May, after China responded to U.S. chip export restrictions, U.S. semiconductor company Micron announced plans to produce next-generation memory chips in Japan worth $3.6 billion. Would this violate “hurt feelings” laws? Or what about the same month when Microsoft said Chinese hackers had attacked systems supplying the U.S. military base in Guam?
In 2009, when Xi Jinping visited Mexico as Vice President of China, he suddenly complained to a group of overseas Chinese that “some well-fed foreigners have nothing better to do than accuse us.”
This raised eyebrows, but at the time many inside and outside China believed or hoped that Xi Jinping was a potential liberal who might follow in the reformist footsteps of his late father. But reality is different.
Jorge Guajardo, Mexico’s former ambassador to China, recently told an interviewer that an incident occurred during Xi Jinping’s first meeting with a foreign head of state at the Boao Forum on Hainan Island in 2013.
Mexican President Enrique Peña Nieto made off-the-cuff mentions of the idea of a “China-Mexico CEO Dialogue” with China. It could hardly be more innocent, but Xi Jinping was reluctant to hear the offer and after an awkward moment the parties moved on. The only reasonable explanation is that the proposal was not in the script.
The “hurt feelings” laws reflect Xi’s dissatisfaction with the West while also signaling his desire for local law enforcement to have another tool to further the Communist Party’s mobilization goals if needed. Xi Jinping has repeatedly said that the party itself will be responsible for creating and enforcing laws in China. Under the new law, no one should doubt who directs the party and ultimately determines harm to the Chinese people.