Two High Bulletin Network Defamation Judicial Interpretation Conference

Absrtact: The Supreme People's Court held a press conference on the afternoon of 9th to issue the interpretation of the Supreme People's Court and the Supreme People's Procuratorate on the application of the law in criminal cases such as defamation, etc. (hereinafter referred to as "interpretation"). This judicial interpretation

The Supreme People's Court held a press conference on the afternoon of 9th to publish the interpretation of the Supreme People's Court and the Supreme People's procuratorate on several issues concerning the application of law in criminal cases, such as defamation, etc. This judicial interpretation will be implemented on September 10, 2013. Jungong, spokesman of the Supreme People's Court, explained the background and main contents of the interpretation as follows:

Video: Two high Bulletin Network Defamation Judicial Interpretation Conference full

In recent years, the use of information network to implement various types of criminal activities, especially the use of the Internet and other information networks to slander defamation of the criminal phenomenon is more prominent: someone in the information network fabricated facts malicious slander others, damage others reputation; some people use socially sensitive hot issues, ammunition, and mislead people , causing serious chaos in public order, and even caused mass incidents, some people in the information network to publish, delete negative information to coerce, to obtain victims or injured units of property, amass money. Some people in the short term through this kind of extortion illegal profit millions of yuan. It is noteworthy that there have been some of the society specializing in disinformation, speculation, "delete posts" and other activities of the so-called "Network public relations Company", "Planning Marketing Organization" and "network pushing hands." They are for the purpose of profit, in violation of state regulations, paid to provide "delete posts", "post" and other services, for a large amount of illegal interests, making online rumors, speculation activities more and more show a kind of organizational characteristics. We can see clearly the insider and social harmfulness of such criminal activities in some cases which have been detected by the public security organs and released to the society recently. The vast majority of the people suffered, the community to this strong reflection, unanimously called for the use of Information network enforcement of criminal activities such as disinformation and slander.

Over the years, the state to strengthen the Internet management, standardize the Internet order, has issued a series of laws and regulations, such as the Standing Committee of the National People's Congress on the maintenance of Internet security decisions, the State Council, "Internet Information Services Management measures", the Ministry of Public Security "Computer Information Network international networking security Management And so on, to promote the healthy development of the Internet has played a positive role. But because the Internet and other information networks have the characteristics of public, anonymity, convenience and so on, some criminals will be the information network as a new crime platform, wanton implementation of defamation, provocation, extortion, illegal operation and other crimes. The purpose of the "interpretation" is to adapt to the urgent need of the new situation in the fight against cyber crime, to interpret the relevant provisions of the criminal law according to the characteristics of the new type of crime, and to provide a clear basis for the judicial interpretation of the relevant crimes in the judicial practice. Solve the problem that the masses reflect strongly.

Supreme People's Court, the Supreme People's Procuratorate of the use of information network to carry out defamation and other criminal law issues, conducted a more than a year of in-depth research, a comprehensive collection of various situations, the existing problems were systematically combed, widely consulted the legislature, the executive authorities, other judicial organs, experts and scholars and other social aspects of the views, and learn from other countries of the legal rules and regulations, through repeated research and demonstration, and constantly revise and perfect, respectively, after the Supreme People's Court trial committee 1589th meeting, the Supreme People's Procuratorate 12th procuratorial Committee 9th meeting to discuss the adoption of this "interpretation."

The interpretation is of great significance and far-reaching implications. First, the enactment of the "interpretation" is to combat the use of information networks to implement related crimes of the actual needs. Through the explicit use of information network for defamation and other crimes of criminal sentencing standards, in order to combat such crimes, provide a clearer basis for judicial interpretation. It is advantageous to unify the judicial standard and standardize the judicial behavior. Second, the enactment of "interpretation" is the need to protect the legitimate rights and interests of the people. The use of information network to carry out defamation, extortion and other crimes, infringement of the reputation of the citizens, property rights, the judiciary to punish such crimes in accordance with the law, to protect the legitimate rights and interests of the masses. The interpretation also provides the masses of people with legal weapons to fight against such crimes. Third, the enactment of the "interpretation" is to maintain the social public order. The use of information network to implement the crime of provocation, especially the fabrication of false information, spread on the information Network, the act of booing, sometimes even lead to mass incidents, resulting in serious public order disorder. It is advantageous for the people to create a good social environment for the judicial organs to punish such crimes according to law. Finally, the enactment of the "interpretation" is the need to protect the rights of expression and supervision of citizens. The laws of any country will not allow the "freedom of speech" to slander others. By clarifying the legal boundaries of speech on the information network, citizens can fully exercise the freedom of speech and supervision conferred by the Constitution according to law. The formulation and promulgation of "interpretation" is also the need to promote the healthy development of information network. It is helpful to standardize the network order and provide a healthy and orderly network environment for the masses of people.

There are 10 articles in the interpretation, which mainly stipulate eight parts.

(a) Clarify the use of information networks to carry out defamation crimes, namely, "fabricating facts to slander others" identification problem. The first article of the interpretation takes the form of an enumeration, (a) the typology and materialization of the provisions of article No. 246 of the Penal Code "fabricating facts to slander others", including: 1. Fabricating facts that damage the reputation of others, spreading on the information network, or organizing or instructing personnel to spread on the information network; 2, The fact that the original information of others involved in the information network is tampered with as damaging the reputation of others, spread on the information network, or organize and instruct the personnel to spread on the information network. As long as one of the above two situations is met by the interpretation, it can be identified as "fabricating facts to slander others".

The second paragraph of the interpretation also stipulates that "the fact that it is fabricated that damages the reputation of another person is spread on the information network, and the circumstances are bad, with the theory of ' fabricating facts to slander others '." "If the perpetrator knowingly commits a false infringement of the reputation of another person, and has carried out the act of spreading it on the information network subjectively, intentionally violating the right of others ' reputation, and objectively causing actual damage to the reputation of others, the circumstances are bad, and the penalty for defamation is in accordance with the penal law. However, if the perpetrator does not know that the false facts fabricated by others and posted on the information network, even if the victim's reputation caused a certain damage, in accordance with the principles of subjective and objective, also does not constitute libel.

At present, the vast number of netizens use information network for "Network anti-corruption", "micro-bo anti-corruption", for anti-corruption work played an active role. The majority of Internet users through the information network to prosecute, to expose other violations of law and discipline, the relevant departments should be taken seriously, responsible verification, timely publication of the results of the investigation. Even if some of the contents of the prosecution or disclosure are untrue, as long as they are not deliberately fabricated to slander others, or if they are not known to be fabricated in the knowledge of the facts of the damage to others, the information network should not be prosecuted for criminal liability.

(ii) Clear the use of information networks to implement the crime of defamation standards, namely "serious circumstances" of the identification problem. The second article of "interpretation" takes the listed way, and the "serious circumstances" standard in the constitutive elements of libel is embodied from the actual clicks, browsing and forwarding of defamation information, the consequence of defamation, the subjective malignancy of the perpetrator and so on, which is more operable in judicial practice. Under article II (a) of the interpretation, "if the same libel information is actually clicked, accessed more than 5,000 times, or is forwarded more than 500 times, it should be considered as a" serious plot "for defamation, thus setting a very strict and quantified criterion for the crime of libel. Considering that forwarding information will result in many people browsing the forwarding information, through empirical research and professional argumentation, this article makes a distinction between the number of clicks, the number of views and the number of times forwarded by the libel information.

Article II (ii) of the interpretation stipulates that "the serious consequences of insanity, self-inflicted injury or suicide of the victim or its near relatives" shall be deemed to be defamatory "serious". If the above-mentioned harmful consequences occur in real life, then do not ask defamation information is actually clicked, browsed or forwarded times, can be directly identified as "serious circumstances", according to the law to be punished. The second article (iii) of the interpretation stipulates that "the administrative punishment for defamation and the defamation of others" in two years is also identified as "serious plot", which embodies the importance and evaluation of criminal law to the subjective malignant and personal danger of the perpetrator.

In general, the interpretation of the use of information networks to carry out defamation acts constitute the standard of defamation, set a more stringent "threshold." If the perpetrator has committed a defamation act, but does not conform to the circumstances of "serious circumstances" as stipulated in the interpretation, it cannot be considered as libel. This fully embodies the legal and accurate crackdown on the use of information networks to carry out defamation crimes, while maximizing the protection of the rights of the majority of netizens, to maximize the embodiment of education, guidance-oriented spirit.

(c) The condition of applying the information network to apply the public prosecution procedure of defamation crime is clarified, that is, "seriously endangering the social order and national interests". According to the criminal law, libel is a case of "telling before handling" except "seriously endangering social order and national interests". If the victim does not bring a lawsuit to the People's Court on his own accord, the people's Court shall not impose penalty on the perpetrator of defamation, except "seriously endangering the social order and national interests". This means that defamation cases "seriously endangering the social order and national interests" should be investigated by the public security organs and the people's Procuratorate prosecute. In order to specify the conditions for applying the Public prosecution procedure to the use of information networks for defamation criminal cases, the third section of "interpretation" lists seven cases of "serious harm to social order and national interests": 1, causing mass incidents, 2, causing public disorder, and 3 causing ethnic and religious conflicts; 4, slandering many people, causing adverse social effects 5, damaging the image of the state, seriously endangering national interests, 6, causing bad international influence, 7, other serious harm to social order and national interests. This provision, not only fully respect the rights of the parties to dispose of, protect the legitimate rights and interests of victims, but also help to vigorously combat those serious harm to social order and national interests of defamation crimes.

(iv) Clear the Use of information network to implement the problem of the identification of troublemakers. Information networks have two basic properties, tool properties and public properties. The information network is regarded as an effective way to obtain information, buy and sell goods and send and receive mails, which indicates that the information network has "tool attribute". At the same time, information network is also a platform for people to communicate, is the extension of real life, is an important part of social public order, but also has a strong "public property." The fifth of interpretation, combining the two basic attributes of information network, has made clear the two basic behavior ways of using information network to carry out the crime of causing trouble and trouble.

Article fifth of the interpretation is aimed at the use of information networks as a "tool", using information networks to implement abusive, intimidating, bad circumstances, and to disrupt the social order of criminal acts. In real life, the abuse or intimidation of others at will, the circumstances of the bad, constitute a crime of trouble. Some criminals use the rapid spread of network information, not easy to eradicate and other characteristics, with the help of Internet abuse, intimidation of others, social harm more. The interpretation will make use of the information network for the implementation of the above act is clearly in line with the provisions of article No. 293 (ii) of the Penal Code, to help fully protect the reputation and human dignity of citizens, increase the network "positive energy", the maintenance of public order, in line with the spirit of the law.

The second paragraph of article Fifth of the interpretation stipulates that "fabricating false information, or knowingly fabricating false information, spreading it on the information network, or organizing or instructing an officer to spread on the information network, to cause serious confusion in the public order, in accordance with the provisions of paragraph (iv) of article No. 293 of the Penal Code, To be convicted and punished for trouble-causing offences. Cyberspace belongs to public space, and network order is an important part of social public order. With the rapid development of information technology, information network and people's real life has been integrated, inseparable. It is the common responsibility of all netizens to maintain social public order. Some criminals use the information network to maliciously fabricate and disseminate false information, stir up trouble, cause serious chaos in public order, and have considerable social harmfulness, and should be prosecuted for criminal responsibility.

(five) Clear the use of information network to implement the crime of extortion problem. "Interpretation" sixth stipulates that "in the information network to publish, delete and other ways to deal with network information for the reasons, threats, coerce others, obtain public and private property, a large amount, or multiple implementation of the above-mentioned Acts, in accordance with the provisions of article No. 274 of the criminal law, extortion conviction punishment." There are usually two basic means for the perpetrator to coerce and threaten through the information network: First, "post-type", that is, to release negative information as a threat to the victims to obtain property; the second is "delete post type", that is, first of all, in the information network to disseminate negative information, and then to help victims "delete posts" as a basis, threats, Coerce the victim and claim the property. These two basic means, in essence, are the use of Information Network, the initiative of the victims to coerce, threatening behavior, and then obtain public and private property, fully in line with the provisions of the criminal law of extortion of the constituent elements of the crime of extortion should be prosecuted for criminal responsibility.

(vi) Clear the Use of information network to carry out illegal operation of the crime of identification and punishment problems. Article seventh of the interpretation expressly provides for violations of state regulations, for the purpose of profit, through the information network paid to provide the deletion of information services, or knowingly is false information, through the information network paid to provide information and other services to disrupt the market order, constitutes a crime, that is, "the amount of illegal operation of the individual is more than 50,000 yuan, Or the amount of illegal income is more than 20,000 yuan, the amount of illegal operation of the unit is more than 150,000 yuan, or the amount of illegal income is more than 50,000 yuan, the crime of illegal business conviction and punishment. The decision of the Standing Committee of the National People's Congress on the maintenance of Internet security and the administrative measures for Internet Information Services of the State Council make clear provisions for the provision of information service activities through Internet to internet users. If the perpetrator violates the relevant provisions of the State and carries out the above acts and the circumstances are serious, it shall be punished by the crime of unlawful operation.

This article clearly stipulates that, through the information network to other people paid to provide information and other services, constitute the crime of illegal business, the perpetrator must knowingly published information is false information as a prerequisite. If the perpetrator does not know that the information published is false information, even if a certain fee is collected, it should not be considered as an illegal business crime. However, the interpretation does not require the perpetrator to knowingly delete the information as false if it is paid to others through the information network. At present, some "network public relations Company" business is mainly "delete posts" business, but the deletion of the information is a considerable part of the vast number of users published real information. The State protects the information network users ' normal and lawful speech and information exchange activities according to law, which is an important part of the basic market management order of information Network Service. The behavior that the perpetrator deletes the real information published by the Information network users for the purpose of profit, not only violates the legitimate rights and interests of the netizens, but also destroys the order of the Information Network Service market, and punishes the crime of illegal operation.

In addition, taking into account the use of information networks to carry out illegal operation of criminal activities, often in the form of companies, enterprises and other forms of organization, the interpretation of article seventh also the Unit through the information network to carry out illegal operation of the crime made provisions, and according to the amount of illegal business or illegal income, The amount standard of different legal penalty ranges for the crime of the Unit is stipulated.

(vii) Clear the Use of information network to carry out defamation, provocation, extortion, illegal operation and other crimes of the common crime. Eighth of the interpretation stipulates that "knowingly others use the information network to carry out defamation, to provoke trouble, extortion, illegal operation and other crimes, to provide them with funds, places, technical support and other help, to the joint crime." "The perpetrator, knowing that others use the information network to carry out defamation, trouble-making and other criminal activities, and to provide funds, places and technical support to others, and to complete related criminal activities together with others, in conformity with the constitutive elements of defamation, provocation and trouble, shall bear the corresponding criminal responsibility."

It should be emphasized that in order to implement the criminal policy of leniency and leniency, to punish the crime, to prevent the expansion of the face, this article clearly stipulates that the provision of funds, places, technical support and other criminal responsibility to help the perpetrator, must be aware of other people using information network to carry out defamation, provocation, extortion, illegal operation and other crimes as a prerequisite. If the use of information network to other people to carry out the relevant criminal activities are not aware of, even if objectively played a role in helping, nor constitute a crime.

(eight) It is clear that the use of information network to carry out defamation, trouble-making, extortion, illegal operation and other crimes of the number of crime problems and the principle of punishment.

The use of information network to carry out defamation, provocation, extortion, illegal operation and other criminal activities, may also constitute other crimes. For example, article No. 221 of the Penal Code provides for the offence of damaging commercial reputation, the reputation of commodities, the offence of incitement to violence against the law under article No. 278, the crime of fabricating and intentionally disseminating false terrorist information as stipulated in article No. 291, etc. As for the perpetrator of the use of information network to carry out defamation and other crimes, but also to commit other charges, the interpretation of Article Nineth stipulates that should be punished in accordance with the provisions of heavier penalties.