This interview with the SPC’s Gao Jinghong was published on 16 October in Seeking Truth.
Cyberspace Should Have Laws and Rules, Citizens’ Rights Must Be Guaranteed According to the Law
– Interviewing the Supreme People’s Court Judicial Committee Full-Time Member Gao Jinghong
On 9 September 2013, the Supreme People’s Court and the Supreme People’s Procuratorate jointly issued the “Interpretation concerning Some Issues of Applicable Law in Handling the Use of Information Networks to Commit Defamation and Other Such Criminal Cases” (hereafter simply named “Interpretation”), which clarified that cyberspace is public space, and that online order is an important component part of social and public order, it defined crime and punishment yardsticks for online defamation and other such acts, unified standards for judicial organs’ handling of corresponding criminal cases, and at the same time ensured that people understand that only if the law is obeyed in cyberspace, citizens’ rights can be guaranteed. As soon as the “Interpretation” was published, all walks of society paid close attention to it and responded enthusiastically to it. This journalist specially interviews the Supreme People’s Court Judicial Committee Full-Time Member Gao Jinghong, and asked him to explain some hot points and questions.
Q: The formulation and implementation of this “Interpretation” is an important step for our country in moving towards online rule of law. Please tell us a bit about its background, main content and importance.
A: Following the rapid development of information technology, information networks with the Internet at the centre, and including telecommunications networks and radio and television coverage networks have become more widespread every day, the “three network integration” trend emerged, which not only stimulated economic and social development, but also greatly made people’s work and lives more convenient, at the same time, it promoted the popular masses to positively exercise their rights of expression and supervision according to the law. It must also be seen that a number of lawbreakers use information networks as a new platform for crime, they recklessly commit defamation, provocation, extortion, blackmail, illegal business and other such crimes, criminal methods are becoming networked, the characteristic of illegal profit-seeking is prominent, the chain of organization clear, citizens’ rights to reputation, property and other lawful rights and interests were violated, and public order and market order is upset. The broad popular masses have strongly reacted against this, and there was a real need for punishment according to the law.
In recent years, in order to strengthen information network management and standardize information network order, the State has successively rolled out a series of laws and regulations, including the NPC Standing Committee “Decision concerning Safeguarding Internet Security”, the State Council “Internet Information Service Management Rules”, etc., which have had a positive effect on stimulating the healthy development of information networks. Although the criminal law contains provisions concerning criminal defamation, criminal provocation, criminal extortion and blackmail and criminal illegal business, it does not contain special provisions on the use of information networks and especially the Internet to commit defamation and other such crimes, because of this, the problem that applicable law is insufficiently clear exists in practice. In this regard, the Supreme People’s Court and Supreme People’s Procuratorate have taken a year of deep investigation, research, and broad solicitation of opinion from all sides, and learned from the management experiences of other countries concerning information networks, and after repeated research and revision, published this “Interpretation”.
The “Interpretation” has ten articles in total, which are aimed at the characteristics of the present use of information networks to commit criminal defamation, provocation, extortion, blackmail and illegal business, in integration with the real situation of judicial practice, they provide for issues such as the act of “concocting facts to defame others” when using information networks to commit defamation, the criminal standards for “grave circumstances” as well as the conditions for prosecutorial procedures when matters “gravely harm social order and national interests”; they provide that using information networks to insult or threaten others, or concoct false information and spreading it on information networks, constitutes criminal provocation; they provide for questions of establishing the use of information networks for extortion, blackmail and illegal business. The “Interpretation” is helpful in unifying judicial standards and standardizing judicial acts, and has an important significance in attacking the use of information networks to commit defamation and other such crimes according to the law, protecting citizens’ lawful rights and interests, safeguarding social order, and standardizing the information network order.
Q: Some people believe that cyberspace is a virtual space, and that online discourse cannot create direct harm to the real society. How should this viewpoint be regarded?
A: This sort of viewpoint is incorrect. First, cyberspace is not a “virtual space”. Cyberspace has virtuality under some circumstances, such as the characters of real-life people “killing” their opponent characters in some online games, this sort of acts does not bring harm to real society, and it is not necessary to bear criminal liability for the crime of wilful killing, the social public also knows that “this is false”, such a cyberspace has a certain virtuality.
Bit the essential characteristic of cyberspace is not this sort of “virtuality”, but it is “instrumentality” and “publicity”. In the present society, the social masses more often obtain information, buy goods, interact, communicate and engage in public opinion supervision through this public platform of information networks, this has caused cyberspace to have a correspondingly clear public quality and social quality. The online society is an important component part of the real society, and has melded into one with real society, becoming inseparable; the online public space is a real public space. For example, in reality, everyone likes shopping online, they can stay at home and complete acts such as entering stores, selecting products, conclude contracts, paying, etc., which is convenient and quick. These actions are all completed online, and are “most assuredly” acts of buying and selling products, both sides of the deal are bound by the sales contract, and bear statutory rights and obligations. This sort of contractual relationship is clearly protected by the law, and regulated by the law.
On the basis of the above-mentioned “instrumentality” and “publicity” of cyberspace, online information will inevitably generate a direct and real influence on society. Concocting facts that defame other persons’ reputations, and using information networks as a tool and platform to spread defaming information will directly violate the victim’s right to reputation; using methods of dealing with information online networks such as dissemination on or deletion from information networks to threaten and blackmail other persons, demanding public or private property, will directly violate the victim’s property rights; concocting false information and spreading it on information networks to stir up trouble will bring grave harm to public order, etc. In fact, the use of information to commit defamation and other such crimes is only a new form of manifestation of defamation and other traditional crimes in the network era, it has the same social harm as traditional defamation and other such crimes, and in view of the rapid dissemination and broad audience of network information, the social harm that is caused may be even created. To this end, this should be convicted and punished according to the relevant provisions of the Criminal Law.
Governing the network according to the law and attacking the use of the network to commit defamation and other such crimes is not only what the people desire, it is also a global tendency in the area of criminal justice. The network is not an “area outside of the law” in any country; the US, the UK, Korea and other countries have published special laws to strengthen regulation over information networks. The publication of the “Interpretation” benefits the rectification of information network order, stimulates corresponding organs to strengthen management over information networks, and to perfect prevention mechanisms against legal violations and crime online. At the same time, the “Interpretation” can give rein to the positive function of punitive measures in the area of prevention, education, etc., guide the broad netizens to consciously standardize their online words and deeds, and ensure the good social results of “attacking the absolute minority, and educating the absolute majority”.
Q: As the “Interpretation” punishes the use of information networks to commit defamation and other such crimes according to the law, how is this reflected in legal protection for citizens’ lawful rights and interests?
A: Some cases of defamation, extortion, blackmail and other such crimes committed on information networks harm citizens’ right to reputation, some harm citizens’ property rights. Online acts of fabricating and disseminating rumours also lead to difficulties in differentiating the truth or falsity of information in cyberspace, which obstructs netizens’ obtaining true information from information networks. The “Interpretation” has persisted in the principle of integrating punishing crime and protecting citizens’ lawful rights and interests, and upholds justice for victims through punishing the use of information networks to commit defamation, extortion, blackmail and other such crimes according to the law, it resorts reputations and protects citizens’ property rights from infringement. At the same time, it has also created a standardized, orderly and healthy network environment for the broad popular masses.
Looking from the angle of safeguarding social and public order, online order is the extension of real public order, squarely looking up to the social harm created by online crime, and controlling online acts through rule of law thinking and rule of law methods, is a real need to safeguard online order. The “Interpretation” has complied with the universal expectations and urgent demands of the popular masses concerning punishing information network crime according to the law, and standardizing information network order, it has tightened the net of the criminal law, it attacks this sort of criminal activity according to the law, which benefits safeguarding social public order and creating a desirable social influence for the broad popular masses.
A: Information networks are important platforms for the public to reflect opinions and suggestions. How does the “Interpretation” reflect this with regards to the legal protection for the freedom of speech?
A: One point must be made clear first, online defamation cannot be confused with free speech. At present, information networks have become an important platform for public interaction. Free speech is a basic right of citizens provided in our country’s constitution, the broad popular masses’ expressing the popular will, paying attention to social hot sports and incidents, and conducting public opinion supervision through online posting are important methods by which citizens exercise their right of free speech and participate in national political life. Citizens’ expressing discourse on information according to the law and exercising the rights endowed by the Constitution, are protected by the laws of our country. The Party and the government are able to understand social situations, the emotions of the masses and netizens’ opinions and suggestions concerning public affairs through all sorts of information and debates online.
But discourse on information networks is not without boundaries. At the same time that citizens exercise their right of expression, they cannot touch the bottom line that the law has instituted with regards to free speech. “Free speech” does not mean “free rumours”, free speech on information networks is not without borders. No country’s laws will permit “free speech” that defames other persons. A freedom that is not limited will lead to chaos due to a lack of rules, and the end result will be that a good free speech order will be challenged and even destroyed, that public platforms on which citizens express opinions, advice and suggestions become places with a pestilent atmosphere where others are attacked, abused and slandered.
After the “Interpretation” was published, there was a sort of voice that believed that the publication of the “Interpretation” was intended to suppress the space for online free speech, and was even intended to attack or retaliate against critics or people raising suggestions, this sort of understanding is incorrect. For example, in the “Criminal Law Revision Draft (8)”, it is provided that drink-driving must be “criminalized”, the objective for this was not to limit everyone driving cars onto the roads, but was intended to limit specific individuals to drive cars onto the road in a dangerous manner, thus safeguarding traffic order and safety, and thereby protecting the majority of the people to drive cars onto the roads in an even safer manner. As a similar rationale, the “Interpretation” persists in the principle of statutory punishment and strict criminal standards, and will not deal with those who disseminate false information online without knowing the truth, and with acts of expressing extreme or even inaccurate critical opinions on the internet, in a criminal manner. Therefore, the publication of the “Interpretation” cannot be intended to “control” online discourse, but is intended to protect the broad citizens’ right to expression and to realize free speech in the true sense of the term.
The “Interpretation” has provided clear boundaries concerning the ways of action in using information networks to commit criminal defamation, it has provided concrete and clear legal bases for attacking this sort of criminal activity according to the law. At the same time, it has also clarified the legal boundaries of expression and speech on information networks, to make it clear to people which speech can be expressed and which speech infringes the law, it thereby guarantees that the broad popular masses can fully exercise the right of expression and the right of supervision endowed to them by the Constitution, according to the law, and it protects the freedom of speech of the broad popular masses to the largest extent.
Q: At present, “online anti-corruption” has become an important channel of public opinion supervision. How does the “Interpretation” differentiate between online anti-corruption and criminal defamation?
A: At present, the broad netizens use information networks to conduct “online anti-corruption” and “Weibo anti-corruption”, which has had a positive effect in anti-corruption and pro-honesty work. Some corruption cases have been brought to light first on networks, they have attracted the high attention of the relevant departments and have been timely dealt with afterwards. We attack online crime, but cannot give up at the slightest obstacle or smother the vitality of the network, we can certainly not block communication paths and suppress critical voices, this sort of worry is unnecessary.
With regards to the broad popular masses reporting or exposing other persons’ unlawful or undisciplinary acts through information networks, relevant departments shall deal with this earnestly, verify them responsibly, and timely publish the investigation results. Even if a part of the reported or exposed content is inaccurate, as long as there is no wilful concoction of facts to defame others, or where it does not fall into the category of clearly knowing that facts are concocted to defame others, and disseminating them on information networks, they should not pursue criminal liability for defamation. But against those acts of wilful concoction of facts to defame others under the pretence of “online anti-corruption”, and especially organized activities of defaming others on a large scale, it is necessary to firmly pursue criminal liability according to the law.
At the same time that judicial organs attack online rumours, clean up the online space and transmit positive energy, they must strictly grasp the boundaries of laws and policies. They must both attack unlawful and criminal activities of using reporting to commit defamation, and must prevent that accidental injury occurs to those informers who vigorously conduct public opinion supervision and who do not have the intent to defame, especially reports where a part of the reported content is inaccurate. Thereby, they must guarantee the organic unity of attacking criminal defamation and guaranteeing citizens’ exercise of the right to supervision, and guarantee that every case can stand the test of the law and history.