Guiding Opinions on Punishing Cyberviolence Violations and Crimes in Accordance with Law

Promulgation Date: 2023-9-20
Title: Guiding Opinions of the Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Public Security on Punishing Cyberviolence Violations and Crimes in Accordance with Law
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Promulgating Entities: Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security
Source of text: https://www.spp.gov.cn/spp/xwfbh/wsfbt/202309/t20230925_629255.shtml#2

To the high courts, people's procuratorates, public security offices, PLA military courts and military procuratorates of all provinces, autonomous reasons and directly governed municipalities, and and Construction Corps branch courts established by the Xinjiang Uighur Autonomous Region's High Court, and Xinjiang Construction Corps procuratorates, and public security departments:

These Guiding Opinions on Punishing Cyberviolence Crimes in Accordance with Law are hereby issued for your earnestly implementation: Please report major problems encountered in implementation, to the Supreme People's Court, the Supreme People's Procuratorate, Ministry of Public Security, respectively.

Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security

2023/9/20

These Opinions are drafted in order to lawfully punish and correct cyberviolence crimes and to effectively preserve citizen’s rights and interests and the normal order online, and are based on the Criminal Law, Criminal Procedure Law, Civil Code, Civil Procedure Law, the Personal Information Protection Law, the Public Security Administration Punishments Law, the Joint Interpretation of the Supreme People's Court and Supreme People's Procuratorate on Several Issues on the Application of Law in the Handling of Criminal Cases of Using the Information Networks to Carry Out Defamation and Other Crimes, as well as other laws and judicial interpretations, and in consideration of law enforcement and judicial practice.

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

1. Cyberviolence, such as targeting individuals on information networks 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 effective legal remedies for the victims, preserve the public’s sense of security, and preserve order online.

II. Correctly Apply the Law to Strictly Punish Cyberviolence Crimes and Violations 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 wanton insults, malicious slander, 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 of people, 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; and where, in accordance with the Criminal Law and judicial interpretations, it concurrently constitutes other crimes, the conviction and punishment is to be in accordance with the heavier offense.

5. Punish the use of cyberviolence for malicious marketing or hype in accordance with law. Where, for reasons such as increasing interest or expanding traffic, Internet users’ public accounts are used to send or transmit information about cyberviolence crimes and violations, and the requirements of Criminal Law article 287-1 are met, it is to be convicted and punished as the crime of illegal use of the information networks; and where, in accordance with the Criminal Law and judicial interpretations, it concurrently constitutes another crime, the conviction and punishment is to be in accordance with the heavier offense.

6. Punish refusals to perform information network security management obligations in accordance with law. Where network service providers do not lawfully perform network security management obligations regarding information on cyberviolence violations and crimes that 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 is to be in accordance with the heavier offense.

7. Punish cyberviolence violations in accordance with law. Where carrying out online insult, defamation, 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. The spirit of strict punishment shall be embodied against cyberviolence violations and crimes, to let the public fully experience fairness and justice. Persist in making law enforcement and justice strict, cyberviolence violations and crimes are to 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, malicious promoters, and those who will not change their ways. Cyberviolence violations and crimes that have any of the following situations are to be give a heavy punishment in accordance with law:

(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], “hatchet men”, or others were organized to carry it out;

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

(4) Deep synthesis and other generative AI technologies were used to publish illegal information;

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

9. Support civil rights protection in accordance with law. Where cyberviolence is carried out against others infringing on others’ reputation or privacy rights, and the victims 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 somewhat biased, 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 to Promptly Provide Effective Legal Remedies

11. Implement legal provisions on public security organ assistance in collecting evidence. Based on the third paragraph of Criminal Law article 246, in cases 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. 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. Internet service providers shall lawfully provide necessary technological support and assistance for public security organs’ collection of evidence. 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 in accordance with law. 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 to make 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 or their close family such as psychological aberration or suicide, having a vile social 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, having a vile social impact;

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

(4) Organizing or instigating persons to publish insulting or defamatory information on several online platforms, having a vile social impact;

(5) Other situations that seriously endanger social order.

13. The application of 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 insulting and defamatory conduct that seriously endangers social order. Where victims concurrently initiate private prosecutions in the people's courts, the people's court may ask 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, the relevant materials are to be sent to the public security organs, and the private prosecutor may participate in proceedings as a victim. Where victims initiate private prosecutions for online acts of insult or defamation before the public security organs open a case, 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.

Where victims or their close relatives report cases of online acts of insult or defamation to the public security organs and, upon review, the public security organs find that a crime is constituted but that the requirements for public prosecution are not me, they may inform the reporters to initiate a private prosecution in the people's courts.

14. Strengthen oversight of case filing efforts. In accordance with relevant laws and judicial interpretations, the people's procuratorates are to strengthen oversight efforts on cases of cyberviolence crimes.

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.

People’s procuratorates handling public interest litigation cases in the area of cyberviolence governance may request that network service providers provide technical support and assistance in accordance with law.

IV. Implement work requirements and promote the enhancement of comprehensive governance

17. Effectively Safeguard Victims’ Rights and Interests In handling cases of cyberviolence, the victims and their legal representatives or close relatives shall be promptly notified that they have the right to retain an agent ad litem and informed that they have the right to apply for legal aid in accordance with law. In situations where there is cyberviolence information is spread widely, the harm to society 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. Professional prohibitions or injunctions may be announced in accordance with law for defendants sentenced to criminal penalties.

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, orderly connecting procedures for private and public prosecutions, to ensure the smooth investigation, prosecution, and trial of cases. Where the public security organs hear the comments and suggestions of the people's procuratorates in major, sensitive, or complicated cases, the people's procuratorate shall provide them promptly to ensure that cases are lawfully and reliably handled. Improve linkage mechanisms for administrative law enforcement and criminal justice, strengthen coordination and cooperation, form a normalized work layout in all units perform their own duties and effectively work together, effectively punishing in accordance with law, and correcting cyberviolence crimes and violations.

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, making clear that “cyberspace is not a lawless area”, educating and guiding netizens to conscientiously obey the law, leading to a civilized 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, use means such as judicial and procuratorial recommendations and public security instructions to promote the multifaceted joint governance of cyberviolence, consolidate the primary responsibility of online information service providers, continuously improve long-term and effective governance mechanisms, fundamentally reducing the occurrence of cyberviolence, and creating a clear and positive cyberspace.