Tencent's WeChat social media network has blocked dozens of LGBTQIA+ university student profiles, stating that some had broken internet information guidelines, prompting worries of sexual orientation discrimination online. The social media site has deactivated accounts linked to the LGBTQIA+ community and university-based LGBTQIA+ groups. In response to the termination of their accounts, a number of student LGBTQIA+ organisations have published statements commenting on the closure. Fudan University's Zhihe Society said that "our activities will not stop due to the closure. On the contrary, we hope to use this opportunity to start again with a continued focus on gender and society, and to embrace courage and love".
Members of the LGBTQIA+ community have often feared discrimination in China. Homosexuality was decriminalised in 1997, but it was nonetheless regarded as a mental disease until 2001, and same-sex marriage is still illegal in China. While all Chinese citizens are constitutionally guaranteed the right to equality and the inviolable right to the freedom of expression, China's Cybersecurity Law restricts the dissemination of information that undermines the "social order" and the release of information for and about the LGBTQIA+ community could be considered illegal.
International human rights laws guarantee members of the LGBTQIA+ community certain inherent human rights, regardless of their social status. While China is yet to ratify the International Covenant on Civil and Political Rights (ICCPR), it is not excused from human rights obligations under international law. The ICCPR incorporates human rights which are granted to all people under customary international law, making them binding against all states as peremptory norms. This includes the right to be treated equally and receive the same freedoms, including the freedom of expression on social media platforms. States have an obligation under international law to protect, respect, and ensure these rights and freedoms. The obligation to ensure human rights requires states to take legislative and administrative measures to protect individuals' rights from private organisations.
The United Nations considered the effect of social media on discrimination in its report of the independent international fact-finding mission on Myanmar, stating that "the role of social media is significant. Facebook has been a useful instrument for those seeking to spread hate, in a context where, for most users, Facebook is the Internet". Social media sites aim to reduce discrimination through their platforms. For instance, on Facebook, content is removed if it attacks people based on their religion, race, ethnicity, or national origin. However, when social media platforms fail in this respect, states ought to prevent discrimination through the moderation of such private companies.
In the case of Joseph R. Biden, Jr. v. Knight First Amendment Institute at Columbia University, the United States Supreme Court considered the regulation of private social media companies for public benefit and to ensure human rights. Justice Clarence Thomas, in his concurring opinion stated that, "as Twitter made clear, the right to cut off speech lies most powerfully in the hands of private digital platforms. The extent to which that power matters for purposes of the First Amendment and the extent to which that power could lawfully be modified raise interesting and important questions".
When it comes to the rights of expression and association, a significant amount of power lies in the hands of social media platforms. However, the obligation of the states to protect, respect, and ensure human rights creates a responsibility to take all reasonable measures to prevent violations of human rights by private organisations. This includes enacting legislations and policies to protect members of the LGBTQIA+ community from discrimination and taking measures to facilitate their participation in economic, social, and political life. Countries have dealt with such discrimination through various legal measures, including legal recognition of members of the LGBTQIA+ committee, landmark judgements reinforcing their rights, guidelines and guidebooks to create awareness, and amending anti-discrimination laws to include discrimination against persons based on their sexual orientation.
The deletion of profiles on Wechat based on sexual orientation would be considered discrimination and unequal treatment. States are required to take measures to avoid such abuses of the right to equality, hence China's government must ensure that such discrimination is not overlooked. China committed to five proposals on LGBTQIA+ concerns made as part of the UN Human Rights Council's Universal Periodic Review in 2019, including enacting anti-discrimination legislation within a year. However, this legislation is yet to be enacted. The next step toward abolishing discrimination and bringing everyone closer together is to prevent homophobic behaviours of private organisations that degrade the lives of members of the LGBTQIA+ community and ensure freedom of speech and expression on all public fora.
Geeta Moni is a third-year law student, pursuing B.A.LL.B. (Hons.) at National Law Institute University, Bhopal. She displays a penchant for global health law, human rights, public international law, and environmental law. Besides law, she spends her time painting and is captivated by a range of musical genres from Hindustani classical to Spanish rap.