Cyberviolence Regulations

by Jeremy Daum | 2023/09/27 5:21 PM

What is cyberviolence?

For the purposes of these Opinions and Chinese law more generally, Cyberviolence includes a few types of online misconduct: Defamation, Insult, violations of privacy, and disruptions of online order.

Why are these guiding opinions being issued?

As elsewhere, cyberbullying, misinformation, and defamation are serious problems in China despite its strict content controls and censorship regime. For over a decade, China has been regularly finetuning its internet regulations to try and keep pace with new technologies and applications.  This has often focused on stopping the ‘spread of rumors’ to  maintain social order, but the protection of vulnerable groups and individual rights  has been increasingly prominent.

The new Guiding Opinions further recognize that cyberviolence offenses pose unique challenges for victims as compared to their offline equivalents in that they are often carried out at a larger scale and against strangers. Victims may have difficulty in gathering evidence or even identifying the offenders. As such a major focus is on empowering courts, prosecutors, and police to play a more active role in addressing cyberviolence offenses, to better protect victims. Not all of this is new, but it is re-emphasized in the Opinions.

What measures do the Opinions authorize to encourage greater justice sector enforcement?

1.       Injunctions: In recognition that the harm from these offenses is difficult to effectively remedy, the Opinions encourage the use of preliminary injunctions where victims can show a current or imminent harm.  (11) A separate type of punitive injunction may be included with some criminal penalties after trial, preventing the offender from engaging in similar behavior or working in certain related fields. (17).

2.       Increased Enforcement: In addition to expanding the range of cases in which prosecutors might begin a public prosecution (see below in discussion of offenses), and encouraging more investigations and prosecutions through oversight, the Opinions also encourage a greater range of penalties. This includes punishment under the Public Security Administration Punishments Law (7), which is currently being revised to include non-criminal penalties that can be used against less serious versions of these offenses. It also includes a list of “aggravating factors” for these offenses (8), such as:

·         Targeting minors or disabled persons,
·         Using generative AI in the offense,
·         Fabricating sex-related scandals and stories for insult and defamation,
·         Organizing “troll armies” to push information,
·         And where offenses are organized by service providers.

3.       Support for civil litigation and private prosecutions: Courts are told to support victims’ civil claims for compensation for violations of reputation and privacy rights. (9). In cases where the prosecutors will not file a public prosecution, but the victim will initiate a citizens’ private prosecution, the police may be requested to help them gather evidence that is difficult for them to access on their own, lending state authority even to these private prosecutions. (11)

4.       Public interest litigation- As used here, public interest litigation does not refer to normal rights protection lawsuits for the public good, but litigation by the procuratorate to protect the rights of large groups of citizens. Cases can focus on the behavior of private actors or review the enforcement actions of government bodies, allowing greater oversight by the procuratorate to change offending conduct and seek remedies for large-scale violations that are often the focus of public concern. (16).

5.       Education: Justice sector actors are prodded to release example cases and other education on cyberviolence, to help establish online behavioral norms, and make clear that “cyberspace is not lawless”. (19)

 

The Offenses:

Defamation and Insult are both included in Article 246 of the Criminal law where they are punishable by up to three years imprisonment. Because these offenses most directly target a specific individual rather than the whole of society,  prosecutors will only pursue this charge where the social order or national interests are seriously endangered. In other situations, the victims are entitled to pursue private criminal prosecutions and civil remedies themselves.

A 2013 judicial interpretation jointly released by the Supreme People’s Court and Procuratorate concerning the online defamation under article 246 made international news because it considered the number of ‘clicks’ and ‘views’ as a measure of how serious the offense was. Specifically, it defined ‘serious circumstances’ as requiring:

  1.           5,000 or more clicks or views, or 500 transmissions.
  2.           Serious harm to the victim, such as suicide, psychological aberration etc.
  3.           An offender who has previously received an administrative punishment for defamation in the last two years, or
  4.           Other serious circumstances.

“Fabrication of Information to defame others” as used in this offense can include any online dissemination of false information harmful to someone else’s reputation, either by creating information whole-cloth or tampering with existing online information. The crime is established even if one spreads information that one knows to be false rather than inventing it themselves, or causes others to disseminate it online, rather than disseminating themselves.

The “serious endangerment of social order or national interests” that is required for prosecutors to handle a case was addressed by both the earlier interpretation and the new Opinions.

The online defamation interpretation held that this requirement was met when the offense:

  1.              Causes a mass incident;
  2.  Causes public disorder;
  3.  Causes ethnic or religious conflicts;
  4.  defamation of multiple persons that creates a repugnant social impact;
  5.  Harms the national image, seriously endangering national interests;
  6.  Creates a repugnant international impact; or
  7.  Has other situations that seriously endanger social order or national interests.

The Opinions address only the endangerment of social order portion, providing that it is met where a vile social impact results because it:

  1. Causes serious harm to the victims or their families (suicide, severe trauma),
  2. Is aimed at the general public and seriously undermines online order, with a large number of vulgar and malicious comments resulting,
  3. Defames multiple people,
  4. Where people were organized to publish information across several platforms,
  5. Other situations that seriously endanger social order.

Violations of Citizens’ Personal Information

In 2015, Criminal Law Amendment 9 added a new article concerning violations of citizen’s personal information. Article 253-1 actually contains two related offenses:

    1. Selling or providing citizens’ personal information to others
    2. Stealing or otherwise illegally acquiring citizens’ personal information.

The Opinions give the example of organizing doxing campaigns to publish someone’s personal information to the general public as conduct constituting a violation

An earlier 2017 Interpretation on crimes under this provision went into more detail on key provisions:

There is a violation of state provisions  where laws, regulations, or even departmental rules have been violated. While it was not yet passed when the interpretation was made, this would include the 2021 Personal Information Protection Law and subsequent authority released under it that have created a fairly comprehensive system of protections for user data being used by businesses etc.

Illegally obtaining information through other means can include purchase, receipt, or exchange, or the collecting information while performing duties or providing services.

Both offenses are considered to have serious circumstances where:

(1) Selling or providing tracking information used by others in the commission of a crime;

(2) Selling or providing citizens’ personal information to others that one knows, or should know, will be used to perpetrate crimes;

(3) Illegally acquiring, selling, or providing 50 or more items of tracking information, communications content, credit rating information, or information on assets;

(4) Illegally acquiring, selling, or providing 500 or more items of housing information, communications records, physical health information, transaction information, and other such citizens’ personal information that might impact security in one’s person or property

(5) Illegally acquiring, selling, or providing 5,000 or more items of citizens’ personal information other than that provided for in items (3) and (4);

(6) Where the amounts do not reach the standards provided in items 3-5, but if taken together according to the relevant rations, the relevant quantity standards are met.

(7) unlawful gains are 5,000 RMB or more;

(8) Selling or providing others with citizens’ personal data that was obtained in the course of performing professional duties, and reaching half or more of the volume or quantity standard provided for in items (3)-(7).

(9) Having previously received a criminal punishment for violating citizens’ personal information or having received an administrative punishment within the last 2 years, and again illegally acquiring, selling, or providing citizens’ personal information.

(10Other situations of serious circumstances.

The illegal provision, sale, or acquisition of information other than that in items (3) and (4) above can be considered to have serious consequences where:

1.       50,000 RMB or more was earned,
2.       Having a repeat offense within 2 years of receiving a criminal or administrative punishment for violating personal information,
3.       Other situations of serious circumstances.

And the situations are especially serious where the violation:

  1. leads to death, serious injury, trauma, or kidnapping;
  2. causes major economic loss or vile social impact,
  3. The quantities or amounts involved are 10x the standards provided in items (3)-(8) above.
  4. Other especially serious situations.

Use of Networks to Break Laws.

Article 287-1 contains wide-ranging charges related to using the internet to break laws that were added to the Criminal law in 2015.

A 2019 judicial interpretation added more detail to the offense. Most critically, Article 7 of the Interpretation, greatly expanded the scope of this crime, by defining ‘illegal and criminal’ to include crimes, and illegal activity of the same type as crimes, but has not yet reached the level of a crime. This means that article 287-1 makes it a crime to use the internet in furtherance of some non-criminal activity.  Given the amount of activity that now occurs online through mobile device, this is not an a trivial interpretation.

This expansion is somewhat limited by the requirement that the circumstances of the offense be serious.

Refusal to perform Security Obligations

Also added to the Criminal Law in 2015’s amendment 9, Article 286-1 relates to refusals to perform security duties, including stopping and reporting criminal activity, after having been told to do so. It was also the subject of the 2019 judicial interpretation.

It’s important to note that “Network Service Providers” as used here involves not only those providing internet access, but also most any online products:

Each of the articles  listed  elements  for  establishing  the offense is also further elaborated on in the interpretation:

(1) Cause the transmission of a large volume of unlawful information;

Large Volumes is defined as

(2) Cause leaks of user information, causing serious consequences;

Serious Consequences is defined as leaking:

[Note the numbers are about pieces of information, not necessarily reflecting the number of persons whose information was leaked] OR where the leak causes:

[The severity of economic losses is sometimes considered on a regional basis, but it is unclear what amounts need to be involved. Guidance on issues of causation, and disruption of social order have been addressed in other criminal contexts]

(3) Cause the destruction of evidence in criminal cases, where the consequences are serious.

Serious Consequences is defined as the destruction of evidence where:

(4) Other serious circumstances.

Other Serious Circumstances include: 

  1. Not keeping logs or verifying identification for the vast majority of users,
  2. Refusals to make corrections several times w/in 2 years,
  3. Resulting in services or facilities being used:
    • primarily for illegal ends,
    • for network attacks with serious impacts,
    • for national security, terrorist activity crimes, underworld criminal organization crimes, embezzlement and bribery, of other major crimes;
    • to damage state organs’ information networks or networks used to provide public services
  4. Other situations
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Jeremy Daum is a Senior Fellow of the Yale Law School Paul Tsai China Center, based in Beijing, with over a decade of experience working in China on collaborative legal reform projects. His principal research focus is criminal procedure law, with a particular emphasis on protections of vulnerable populations such as juveniles and the mentally ill in the criminal justice system, and is also an authority on China’s ‘Social Credit System’. Jeremy has spoken about these issues at universities throughout China and in the U.S.; and has co-authored a book on U.S. Capital Punishment Jurisprudence for Chinese readers. He is also the founder and contributing editor of the collaborative translation and commentary site Chinalawtranslate.com, dedicated to improving mutual understanding between legal professionals in China and abroad.
He translates, writes, edits, does web-design, graphic design, billing, tech support, and social media outreach for China Law Translate.

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