Guiding Opinions on Punishing Cyberviolence Violations and Crimes (Draft for Comment)

[Source]https://www.court.gov.cn/zixun/xiangqing/402962.html

In order to correct and punish illegal and criminal cyberviolence activities, to effectively preserve citizens' personality rights and the normal order online, the Supreme People's Court, Supreme People's Procuratorate, and Ministry of Public Security have drafted these "Guiding Opinions on Punishing Cyberviolence Violations and Crimes (Draft for Comment)" on the basis of the Criminal Law, Criminal Procedure Law, Civil Code, Public Security Administration Punishments Law, and other relevant provisions, and hereby releases them to the public for the solicitation of comments, with the period for feedback concluding on June, 25, 2023.

The public may submit comments through the following channels:

1. Please send e-mails to: xsjsxgca@163.com;

2. Please send letters to: Research Office of the Supreme People's Court, No. 27 Dongjiaomin Lane, Dongcheng District, Beijing, Zip Code: 100745; Legal Policy Research Office of the Supreme People's Procuratorate, No. 147 Beiheyan Street, Dongcheng District, Beijing, Zip Code: 100726.

Please indicate “Feedback on the Document on Governing Cyberviolence” on the email subject line or envelope.

These Opinions are drafted on the basis of the Criminal Law, Criminal Procedure Law, Civil Code, Civil Procedure Law, the Public Security Administration Punishments Law, and other laws and in consideration of law enforcement and judicial practice, in order to lawfully punish and correct cyberviolence crimes, to effectively preserve citizen’s rights and interests, and the normal order online.

I. Fully recognize the social harm of cyberviolence, lawfully preserve citizens’ rights and interests, and order online.

1. Cyberviolence, such as targeting individuals online by wantonly publishing information that is derogatory or insulting, false and defamatory, or that violates privacy, demeans others’ reputations, harms others’ reputations, and has sometimes caused serious consequences such as “social death, or even derangement, or suicide; disrupts order online, undermines the online ecology, fouls the atmosphere of cyberspace, and seriously impacts the public’s feeling of safety. Unlike traditional violations and crimes, cyberviolence is usually carried out against total strangers, and victims have practical difficulties in areas such as identifying the violators and collecting evidence, and the cost of protecting one’s rights is exceedingly high. The people's courts, people’s procuratorates, and public security organs should fully recognize the social harm of cyberviolence and persist in the position of strict punishment, actively perform their duties in accordance with law, provide full legal remedies for the victims of cyberviolence, preserve the public’s sense of security, and preserve the normal order online.

II. Correctly Apply the Law to Strictly Punish Cyberviolence Violations and Crimes in Accordance with Law.

2. Punish online defamatory conduct in accordance with law. Those that create or publish rumors on information networks, demeaning others’ personalities or harming others’ reputations, are to be convicted and punished for the crime of defamation where the circumstances are serious and the requirements of Criminal Law article 246 are met.

3. Punish online Insult in accordance with law. Those who use methods such as wantonly insults, vicious attacks, or disclosing privacy to openly insult others, are to be convicted and punished for criminal insult where the circumstances are serious and the requirements of Criminal Law article 246 are met.

4. Punish violations of citizens’ personal information in accordance with law. Those who organize ‘human flesh search engines [coordinated doxing campaigns] to illegally collect and publish citizens' personal information to the unspecified majority on information networks, are to be convicted and punished for violating citizens’ personal information where the circumstances are serious and the requirements of Criminal Law article 253-1 are met.

5. Punish offline provocation in accordance with law. Those who extend cyberviolence offline by carrying out provocations against the victims of cyberviolence and their families such as through intercepting and insulting, provoking and intimidating, or destroying property are to be convicted and punished for the intentional destruction of property or provocation and causing disturbances [aka picking quarrels] where the requirements of Criminal Law article 275 or 293 are met.

6. Punish the use of cyberviolence for malicious marketing or hype in accordance with law. Where, for reasons such as increasing interest or expanding traffic, network service providers do not lawfully perform network security management obligations regarding cyberviolence information they discover, and do not make corrections after being ordered to employ corrective measures by the regulatory departments, causing the dissemination of a large volume of unlawful information or where there are other serious situations, they are convicted and punished for the crime of refusing to perform network security management obligations where the requirements of Criminal Law article 286-1 are met; and where other crimes are concurrently constituted, the conviction and punishment are to be for the provisions with the heavier punishment.

7. Punish cyberviolence violations in accordance with law. Where carrying out online defamation, insult, or other cyberviolence does not constitute a crime but meets the requirements for public security administration punishments, administrative punishment is to be given in accordance with law.

8. Strictly punish cyberviolence violations and crimes in accordance with law. Persist in making law enforcement and justice strict, cyberviolence violations and crimes shall be severely pursued in accordance with law, to truly correct the mistaken tendency of law to fall short where there are too many offenders. Focus on combatting malicious initiators, organizers, promoters, and those who will not change their ways. The spirit of strict punishment shall be embodied against cyberviolence violations and crimes, to let the public fully experience fairness and justice. Cyberviolence violations and crimes that have any of the following situations shall be give a heavy punishment:

(1) It was carried out targetting minors or persons with disabilities;

(2) Where “water brigades” [水军- so named for being paid to irrigate traffic or followers, piling on an issue] or “hatchet men” were organized to carry it out;

(3) Fabricating “sex-related” topics to encroach on others’ personal dignity;

(4) Using “deep synthesis” technology to publish illegal or negative information, going against public order and good custom, ethics, and morality;

(5) Where initiated or organized by network service providers;

9. Do a good job in rights protections in civil matters in accordance with law. Where cyberviolence is carried out against others infringing on others’ reputation or privacy rights, and the victim demand that the perpetrator bear responsibility for civil compensation, the people’s courts are to support it in accordance with law.

10. Correctly understand the standards for identifying violations and crimes. Reporting or exposing other’s criminal or illegal conduct through information networks shall not be found to be illegal or criminal defamation so long as the facts are not intentionally distorted or known to be distorted, and intentionally published. Even where the views are biased or phrasing is extreme, commenting or criticizing the words and actions of others shall not be found to be illegal or criminal insult so long as it is not wanton abuse or malicious smearing.

III. Clear Litigation Procedures and Promptly Provide Effective Legal Remedies

11. Implement legal provisions on public security organ assistance in collecting evidence. Where victims raise private prosecutions concerning online insult or defamation, and upon review the people's courts find that it will be difficult for the victims will have difficulty in providing evidence, the public security organs may be requested to provide assistance in accordance with paragraph three of Criminal Law article 246. Based on the people's courts’ requests and the specific circumstances of the case, the public security organs shall promptly ascertain the actors and collect evidence on the dissemination of insulting or defamatory information and on the impact caused. Where, after the public security organs assist in collecting evidence, the requirements for accepting private prosecutions are reached, the people's court shall decide to file the case; where relevant evidence cannot be collected, the public security organs shall explain the situation to the people's court in writing.

12. Correctly understand the requirements for public prosecutions for criminal insult and defamation. Based on the second paragraph of Criminal Law article 246, where carrying out criminal insult or defamation seriously endangers social order or the national interests, a public prosecution shall be initiated. As to whether online insult or defamation seriously endangers social order, factors such as the subject of the infringement, motives, scope of information dissemination, and harmful consequences shall be considered in making a judgment.

Where online acts of insult or defamation have any of the following circumstances, it shall be held to “seriously endanger the social order” as provided by the second paragraph of Criminal Law article 246:

(1) It causes serious consequences to the victims such as psychological aberration or suicide, having a vile impact;

(2) Where the general public is the subject of the infringement, the related information is spread widely online, leading to a large volume of vulgar and malicious comments, seriously undermining order online, impacting the public’s sense of security;

(3) Insult or defamation of multiple persons that creates a vile social impact;

(4) Spreading defamatory or insulting information several times, or organizing or directing persons to spread large volumes of defamatory or insulting information, causing a vile social impact;

(5) Other situations that seriously endanger social order.

13. Apply public prosecution procedures for criminal cases of insult and defamation in accordance with law. The public security organs shall promptly open a case in accordance with law for online insult and defamation crimes that seriously endanger social order. Where victims initiate private prosecutions in the people's courts at the same time, the people's court persuades the private prosecutor to withdraw the private prosecution or make a ruling to not accept it; where it has already been accepted, a ruling shall be made to end the trial, and the private prosecutor may participate in proceedings as a victim. Where victims initiate private prosecutions for online acts of insult or defamation, and after review the people’s courts find that the related conduct seriously endangers social order, the case shall be transferred to the public security organs.

14. Strengthen oversight of case filing efforts. In online insult, defamation, or cyberviolence cases applying charges such as infringement of citizens' personal information, where the people's procuratorate feels that the public security organ has not filed and investigated where it should do so, or the victim feels that the public security organ has not filed and investigated where it should do so and submits it to the people's procuratorate, the people's procuratorate shall request that the public security organ explain the reason for not filing a case. If the people's procuratorate feels that the public security organ's reason for not filing the case is not sustainable, it shall notify the public security organ to file the case and after receiving the notice, the public security organ will file the case.

Higher-level public security organs shall strengthen guidance and internal oversight of lower-level public security organs' operations in opening cyberviolence cases.

15. Use the system of injunctions against infringement of personality rights in accordance with law. Where rights holders have evidence showing that the perpetrators are currently or imminently carrying out violations of their personality rights, that their lawful rights and interests will suffer a harm that is difficult to repair if the conduct is not promptly stopped, and they apply to the people's courts to employ an injunction against the perpetrators on the basis of Civil Code article 997, the people's courts may make an injunction on infringement of personality rights in accordance with law based on the specific circumstances of the case.

16. Initiate public interest litigation in accordance with law. Where cyberviolence harms the societal public interest, the people’s procuratorates may initiate civil public interest litigation in the people’s courts in accordance with law.

Where internet service providers do not perform information network security management obligations in accordance with law regarding cyberviolence information that they discover, causing a large amount of illegal information dissemination or other serious consequences, harming the societal public interest, the people's procuratorate may initiate public interest litigation in the people's courts in accordance with law.

IV. Implement Related Work Requirements to Truly Improve Comprehensive Governance Measures

17. Effectively Safeguard Victims’ Rights and Interests. In situations where cyberviolence information is widely spread, the harm is large, and the impact is difficult to eliminate, information on the progress of the case should be promptly released to the public in accordance with law clarifying the true facts, and effectively eliminating the negative impact. Apply the system of leniency for those who admit guilt and accept punishment [plea leniency system] in accordance with law, urging defendants to plea, earnestly repent, and effectively protect victims’ personality rights through means such as public apologies in the media.

18. Strengthen connectivity and cooperation. People's courts, people's procuratorates, and public security organs should strengthen communication and coordination, to unify law enforcement and judicial conceptions, unify understandings of the character of cyberviolence and the procedures for case handling, orderly connecting procedures for private and public prosecutions, to ensure the smooth investigation, prosecution, and trial of cases. The public security organs should promptly hear the comments and suggestions of the people's procuratorates in major, sensitive, or complicated cases to ensure that cases are lawfully and reliably handled.

19. Do a good job on legal publicity. The responsibility system of “having those who enforce the law, explain the law” should be earnestly implemented, giving full play to the role of law enforcement case filing in rules guidance, value orientation, and behavioral norms. Publish example cases on cyberviolence at appropriate times, making clear to the public that “cyberspace is not a lawless area”, educating and guiding netizens to conscientiously obey the law, leading to a civil societal atmosphere.

20. Promote the comprehensive governance of cyberviolence. Rooted in law enforcement and judicial functions and on the foundation of handling cyberviolence-related cases in accordance with law, do real source management, deeply analyze the root causes of cyberviolence, proactively make judicial and procuratorial recommendations, promote the continuous improvement of long-term effective mechanisms for governing cyberviolence, reducing the occurrence of cyberviolence at its source, and creating a cyberspace that is clean and positive.