Protecting Citizens’ Lawful Rights and Interests, Stimulating the Healthy Development of the Network
– Relevant persons in charge from the Supreme People’s Court and the Supreme People’s Procuratorate Answer Journalists’ Questions concerning the “Supreme People’s Court and Supreme People’s Procuratorate Interpretation concerning Some Questions of Applicable Law When Handling Uses of Information Networks to Commit Defamation and Other Such Criminal Cases”
This interview was posted on the Supreme People’s Procuratorate website on 10 September. It provides somewhat of a background to the recent SPC/SPP Interpretation on online defamation, even if it mainly rehashes generalities. it is interesting that this interview refers to future legislative developments, potentially indicating that a process either to formulate a detailed law on online defamation or an amendment to the Criminal Law may be underway.
Q: Our country’s Criminal Law has provided for the crime of defamation, the crime of provocation, the crime of extortion and blackmail and the crime of illegal business. Why did the “Two Supremes” produce a special Interpretation to deal with use of information networks to commit crimes such as defamation, provocation, extortion, blackmail, illegal business, etc.?
A: In recent years, information technology has developed rapidly, information networks with the Internet at the centre, and including telecommunications networks and radio and television transmission coverage networks are spreading wider every day, and have become an indispensible component part of the popular masses’ work, study and life. Because information networks have the characteristics of communality, anonymity and convenience, some law-breakers use information networks as a sort of new platform for crime, they recklessly commit crimes such as defamation, provocation, extortion, blackmail, illegal business, etc., infringing citizens’ right to reputation, right to property and other such lawful rights, they upset public order and destroy market order, which carries grave social harm, the popular masses are extremely resentful about this, and all walks of society strongly react. In order to satisfy the need to struggle with online crime and respond to the call of the broad popular masses, the Supreme People’s Court and Supreme Peoples Procuratorate have, on the basis of a long time of investigation and research, broadly soliciting opinions and scientific reasoning, timely formulated and published the “Interpretation”, which as an important real significance.
First, there is a need to protect citizens’ lawful rights and interest. Committing defamation, provocation and other such crimes online sometimes infringed citizens’ right to reputations, and sometimes infringes citizens’ right to property. Online rumour fabrication and dissemination makes it difficult to distinguish true and false information in cyberspace, and has also impeded netizens’ obtaining true information from information networks. The “Interpretation” punishes the use of information networks to commit defamation and other such crimes according to the law, it is able to uphold justice for victims and restore their reputations, it is able to protect citizens’ lawful assets against violations and is able to provide a standardized, orderly and healthy online environment for the broad popular masses.
Second, there is a need to clarify the legal basis to effectively attack crime. At present, the use of information networks to commit defamation, provocation, extortion, blackmail, illegal business and other such criminal activities are rampant. In comparison with adopting traditional means to commit the abovementioned crimes, the use of information networks to commit the abovementioned crimes that emerged over the past few years has particularities in their form of objective manifestation, but this sort of crime indubitably has real social harm. Because online information has characteristics such as a broad scope of diffusion, rapid dissemination speed, an influence that is not easy to remove, etc., the use of information networks to commit defamation and other such crimes carries a graver social harm than using traditional means to adopt the abovementioned crimes. But because our country’s Criminal Law does not contain concrete provisions with regards to the use of information networks to commit defamation and other such crimes, the problem exists in practice that applicable law is insufficiently clear. The “Interpretation” clarified the conviction and penalty standards for the use of information networks to commit defamation, provocation, extortion, blackmail, illegal business and other such crimes, which benefits the unification of judicial standards, standardized judicial activity, assists judicial organs in correctly and powerfully attacking this sort of criminal activity according to the law.
Third, there is a need to safeguard social and public order. Cyberspace has already merged into one with the real society, they are inseparable. The use of information networks to commit provocation and other such crimes has created grave destruction of social and public order. Especially the fabrication of false information, its diffusion on information networks, and acts of jeering and stirring up trouble easily lead to mass incidents and create grave upsets of public order. The “Interpretation” tightened the criminal law net, and attacks this sort of criminal activities according to the law, which assists in safeguarding social and public order and creating a good social environment for the broad popular masses.
Fourth, there is a need to guarantee citizens’ right of expression and supervision. Citizens’ expressing discourse on information networks according to the law and exercising their constitutional rights are protected by the laws of our country. But “freedom of speech” on information networks is not without limits. No country’s laws will permit “freedom of speech” that defames others. The “Interpretation” has detailed the legal boundaries of expression on information networks, and citizens may fully exercise the rights of expression and supervision endowed by the Constitution according to the law.
Fifth, there is a need to stimulate the healthy developments of information networks. The use of information networks to commit defamation, provocation, extortion, blackmail and other such crimes has resulted in the fact that information networks are no longer “pure lands”. A number of professionalized “online pushers” have even emerged, consequently, the fabrication and dissemination of rumours on information networks has become a sort of criminal activity with a relatively strong organization, resulting in “a loss of standards” in information network order, and online chaos breaking out, this influences regular economic and social order. The publication of the “Interpretation” assists in standardizing online order, strengthening daily supervision and management over information networks, expanding strength to deal with unlawful acts, and safeguarding regular economic and social order.
In fact, in order to strengthen management over information networks, our country’s legislative organs have published corresponding legal documents in the past already. In 2000, the National People’s Congress Standing Committee formulated the “Decision concerning Safeguarding Internet Security”, which clearly pointed out that: where the Internet is used to commit defamation, extortion, blackmail and other such acts, constituting a crime, criminal liability will be pursued according to the relevant provisions of the Criminal Law. Against the background of the rapid development of information networks, and especially the clear trend of the “Three Network Integration” of the Internet, telecommunications networks, and radio and television transmission coverage networks, in order to unify the application of the law, there was a necessity to produce a judicial interpretation on the use of information networks to commit defamation, provocation, extortion, blackmail, illegal business and other such crimes, and further clarify concrete conviction and penalty standards.
To sum up, the publication of the “Interpretation” assists in punishing defamation, provocation, extortion, blackmail, illegal business and other such crimes that all walks of society universally pay close attention to at present, according to the law, it complies with the universal expectation of the broad popular masses in the new era and urgent need to strictly punish cybercrime according to the laws and standardize information network order.
Q: In the process of formulating the “Interpretation”, which basic principles did the “Two Supremes” follow?
A: The “Interpretation” is an important legal document to strictly punish the use of information networks to commit defamation, provocation, extortion, blackmail, illegal business and other such crimes according to the law under new circumstances. The “Two Supremes” have given this high attention, have been extremely cautious, and haven taken more than a year of investigation and research, they have broadly solicited opinions from legislative organs, administrative organs and other judicial organs, expert scholars and persons from all walks of society on a nationwide scale, conducted earnest research and argumentation, have repeatedly revised and perfected it, and have now finally completed it. Generally speaking, the content of the “Interpretation” conforms to the spirit of legislation and the real situation of society. The process of formulating the “Interpretation”, has mainly abided by the following principles.
First, persisting in the principle of statutory penalties, and interpreting according to the law. The “Interpretation” clarified concrete conviction and penalty standards strictly according to the constitutive elements of the crimes of defamation, provocation, extortion, blackmail, illegal business, etc., as provided in the Criminal law, in integration with the characteristics of the acts of using information networks to commit the above-mentioned crimes and its real harm. Every article has a clear legal basis, conforms to the basic principle of statutory penalties, and reflects the basic requirement of interpretation according to the law. At the same time, the “Interpretation” contains clear provisions concerning the determination standard for “grave circumstances” in committing crimes, the determination standard for accomplices to crime, etc., to guarantee that in practice, cases are handled strictly according to the law.
Second, systematic interpretation aimed at the characteristics of cybercrime. The use of information networks to commit defamation and other such crimes is only a new manifestation form of defamation and other such crimes in the online era, but it has a larger real harm than traditional defamation and other such crimes. In practice, some people concoct facts harming other persons’ reputations and disseminate them on information networks, defaming other persons; some people fabricate false information and disseminate it on information networks to jeer and stir up trouble, upsetting public order; some people threaten or blackmail others through disseminating, deleting or otherwise dealing with information on information networks, demanding public or private property from them; there are also a number of so-called “online public relations companies” and “online pushers” who provide posting and other such services of fabricated false information on information networks, illegally seeking economic gain and immorally amassing wealth, etc. Such use of information networks to commit crimes is similar to using traditional means to commit crime, they shall also be convicted and punished according to the Criminal Law. With regards to the use of information networks to commit defamation, provocation, extortion, blackmail, illegal business and other such crimes, to which the popular masses react relatively prominently at present, the “Interpretation” provides systematized interpretation according to the provisions of the Criminal law and in integration with the characteristics of information networks, it provides a clear legal basis to attack the above-mentioned crimes according to the law and accumulates beneficial experiences in order to further deepen information network crime legislation.
Third, scientific interpretation on the basis of real judicial needs. Following the development and spread of information networks, in recent years, a number of cases on the use of information networks to defame others or commit extortion or blackmail already occurred, the People’s Courts have already imposed convictions and punishments according to the crime of defamation or the crime or extortion or blackmail, and have obtained good legal effects and social effects. Because of this, the “Interpretation” is, in fact, the scientific summary of judicial practice and experience. In the formulation process of the “Interpretation”, we have conducted full research and investigation, and when determining standards for criminal punishment for corresponding crimes, have broadly solicited opinions and suggestions form all sides, and conducted evidentiary analysis. The concrete provisions of the “Interpretation” conform to judicial reality and have a strong operative nature.
Fourth, emphasis on education, propaganda and guidance, fully giving rein to the function of the “Interpretation”. In the process of formulating the “Interpretation”, we have persisted in the basic criminal policies of weighing leniency and severity, persisted in equally stressing attacking the use of information networks to commit defamation and other such crimes and protecting citizens’ rights of expression and supervision, we have paid attention to utilizing the positive effects of punitive methods in prevention, standardization, education, guidance and other such aspects. The “Interpretation” is based on present reality, and attacks the use of information networks to commit corresponding crimes to which the people strongly reacted according to the law, it benefits stimulating corresponding departments to strengthen daily management over information networks, perfect prevention mechanisms for law-breaking and crime online, educate the broad netizens to consciously standardize their online words and deeds, and to achieve the good social effect of “attacking the extremely small minority and educating the large majority”. Thus it can be seen that the “Interpretation” has provided powerful legal guarantees to protect the lawful rights and interests of citizens, legal persons and other organizations, and safeguard social order.
Q: Articles 1 through 3 of the “Interpretation” clarify which concrete content of the use of information networks to commit defamation crimes? How are these to be correctly grasped in practice?”
A: Articles 1 through 3 of the “Interpretation” respectively regulate the method of conduct of, criminal threshold, and public prosecution criteria for the use of information networks to commit defamation crimes, this is the main content of the “Interpretation”.
First, Article 1 of the “Interpretation” is divided into two Paragraphs, which clarify the method of conduct of using information networks to commit defamation crimes, which is a question of determination of “fabricating facts to defame others”. Concretely, it includes three methods of conduct: the first is “fabrication and dissemination”, meaning that Paragraph I Clause (1) provides for the acts of fabrication of facts harming the reputation of other persons and disseminating them on information networks or organizing or inciting other persons to disseminate them on information networks. The second is “distortion and dissemination”, meaning that Paragraph I Clause (2) provides for acts of use of information networks to distort the content of original information involving other persons into facts harming other persons’ reputations, and disseminating them on information networks, or organizing or inciting persons to disseminate them on information networks. The third is “clearly knowing that facts are false and disseminating them”, meaning that Paragraph II provides that acts of clearly knowing that facts are fabricated and harm other persons’ reputations, disseminating them on information networks, with vile circumstances, are to be interpreted as “fabricating facts to defame others”. The above acts all reflect that the actor has a subjective intent to fabricate facts to defame others, and may be determined to committed the defamation crime of “fabricating facts to defame others”. In the “new media” era, everyone may become an information publisher and disseminator, every person shall consciously abide by the provisions of the law. Information networks are no “extra-legal territory”, those actors who recklessly fabricate facts and maliciously defame others shall bear the corresponding legal liability according to the law.
Second, Article 2 of the “Interpretation” clarifies the criminal thresholds for the use of information networks to commit defamation crimes. Because information networks have characteristics such as rapid dissemination speeds as well as the difficulty to eliminate the content of online posts, the use of information networks to commit acts of defamation often can create grave and real harmful consequences. Article 2 of the “Interpretation” clarifies the criminal threshold standards for the use of information networks to commit defamation crimes in terms of the hit or browsing rates, or the number of reposts of the defaming information, the real harmful consequences caused by the act of defamation, the subjective malice of the defaming actor and other factors. In practice, some law-breakers fabricate facts harming other persons’ reputations and maliciously disseminate them on information networks, where within a very short period of time, the hit rate can be numbered by the tens of thousands, dissemination is very rapid, the bad influence very broad, causing a grave influence on the victim’s work and life, or even causing mental disorder with the victim or other such grave consequences, this should be convicted and punished as criminal defamation according to the law.
Third, Article 3 of the “Interpretation” clarifies the procedural conditions for the public prosecution of the use of information networks to commit criminal defamation. On the basis of the provisions of the Criminal Law, criminal defamation cases are to be initiated upon complaint, except where they “gravely harm social order or national interests”. Article 3 of the “interpretation” provides for seven kinds of circumstances, triggering mass incidents, triggering upsets of public order, triggering ethnic or religious clashes, slandering many persons, causing vile social influence, harming the country’s image, gravely harming national interests and causing vile international influence, that shall be determined as “gravely harming social order and national interests”, public prosecution procedures may be used, the public security organs may file cases and investigate them, procuratorial organs may raise an indictment. The use of public prosecution procedures for this sort of criminal defamation both conforms to the provisions of the Criminal law, and to the real need of effectively dealing with the use of information networks to commit criminal defamation. All levels’ judicial organs must correctly understand and grasp the above circumstances, and must give prominence to attacking focus points and punishing criminal defamation according to the law, and must also implement the criminal policy of weighing leniency and severity, preventing that the area of attack is expanded.
Q: Article 5 of the “Interpretation” provides that the use of information to concoct and disseminate false information, causing grave upsets of public order, is to be convicted and punished as criminal provocation, on which considerations is this based?
A: Article 5 Paragraph II of the Interpretation clarifies that where information networks are used to fabricate or disseminate false information, jeer or stir up trouble, causing grave upsets to public order, this shall be convicted and punished as criminal provocation. At present, a few law-breakers fabricate and disseminate false information on information networks on a large scale, the information of this content is not directed at specific natural persons, but is aimed at upsetting social order and harming public interests. This sort of information, when disseminated online, easily triggers social panics and causes grave upsets to social order. Recently, many mass incidents happened in various locations, many are triggered by law-breakers fabricating false information and disseminating it on information networks.
Cyberspace belongs to the public space, online order is also an important component part of social and public order. Following the rapid development of information technology, information networks and people’s real lives have become merged together, they are inseparable. Safeguarding social and public order is the common responsibility of the whole body of netizens. Some law-breakers use information networks to maliciously fabricate and disseminate false information, jeer and cause trouble, triggering grave upsets of social and public order, this causes real social harm, and criminal liability should be prosecuted for criminal provocation.
Q: Article 6 of the “interpretation” provides that threatening or blackmailing others through disseminating, deleting or otherwise dealing with information on information networks, and demanding public or private property, where values are relatively large, or the abovementioned act is committed repeatedly, is to be convicted and punished as criminal extortion or blackmail. What are the concrete forms win which this sort of crime manifests itself? How will judicial organs, during the process of adjudication, correctly determine the boundary between criminal and non-criminal?
A: Article 6 of the “Interpretation” clarified determination standards for the use of information networks to commit criminal extortion or blackmail. It is mainly aimed at a number of law-breakers who publish negative information online involving a victim or an injured work unit, or collect negative information related to a victim or injured work unit online, actively contact the victim or injured work unit, and demand property from them, giving reasons such as helping them delete it or “sink to the bottom”. There mainly are two forms in which this sort of crime manifests itself, being: “posting” extortion and “post deletion” extortion, the former is blackmail by going to announce negative information and requiring that the victim hands over property, the latter is first disseminating negative information on information networks, and then extorting the victim by demanding he hands over property to delete the posts. This sort of act essentially means that the actor takes illegal ownership, and uses information networks to threaten or blackmail others, victims are forced to hand over property because of fear or because they are under some sort of pressure, this confirms to the constitutive elements of the crime of extortion or blackmail, and shall be convicted and punished as criminal extortion or blackmail.
In judicial practice, attention shall be paid to correctly delimiting crime and non-crime from two sides. First, it is necessary that the actor must actively threaten or blackmail the victim or injured work unit, and ask for property. If the actor does not actively contacts the victim to arrange for the deletion of posts, and does not threaten or blackmail him, but in circumstances where the victim actively drops in and requests the deletion of posts, and the actor collects fees from the victim under headings such as “advertising fees, support fees”, “service fees”, etc., it shall not be determined to be criminal extortion and blackmail. Second, this article uses the description “information”, and not “false information”. Where actors threaten that they will publish negative information about victims or injured work units on information networks, even if it is true, as long as the actor starts from an objective of unlawful possession, and extorts public or private property by disseminating or deleting this negative information, it will constitute criminal extortion or blackmail.
Q: Article 7 of the “Interpretation” provides that providing paid-fro information deletion services through information networks with a commercial aim, or providing paid-for information dissemination and other such services through information networks where it is clearly known that the information is false, and this upsets market order, this is to be convicted and punished as the crime of illegal business. This provisions are mainly aimed at which kind of situations. How is this to be correctly determined in judicial practice?
A: Article 7 of the Interpretation clarified punishment standards for the use of information networks to commit the crime of illegal business. The National People’s Congress Standing Committee “Decision concerning Safeguarding Internet Security” and the State Council “Internet Information Service Management Rules” contain clear provisions on information provision service activities through the Internet to online users. In practice, a number of so-called “online public relations companies”, “marketing companies”, “online pushers” and others, provide paid-for information deletion services to other persons on information networks with a commercial aim and without permits, or provide paid-for information dissemination and other such services to others through information networks, clearly knowing that the information is false, this sort of activity violates State provisions and upsets market order, it brings relatively great harm to society, and shall be convicted and punished as illegal business.
This Article clearly provides that for the provision of paid-for information dissemination and other such services to other persons through information networks to constitute a crime, there is a precondition that the actor must clearly know that the information he disseminates is false information. if the actor does not clearly know that the disseminated information is false information, even if fees are collected, it will not be determined to be a crime of illegal business. But in relation to the provision of paid-for information deletion services through information networks, the “Interpretation” does not demand that the actor clearly knows that the deleted information is false information. At present, the main business of a number of illegal “online public relations companies” is “post deletion”, a considerable part of the information they delete is true information disseminated by the popular masses. The State protects information network users’ regular and lawful information circulation and service activities, this also is an important component part of the market order of online information services. Where actors delete information network users’ true information for payment, they violate the broad netizens’ lawful rights and interests, and gravely destroy the online information services market order, in conformity with the constitutive elements of the crime of illegal business, this shall be punished according to the law.