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According to the Supreme People’s Procuratorate, in order to punish illegal and criminal activities of cyber violence in accordance with the law, effectively safeguard citizens’ personal rights and interests and normal network order, in accordance with relevant provisions of the Criminal Law, Criminal Procedure Law, Civil Code, Civil Procedure Law and Public Security Management Punishment Law, the Supreme People’s Court , the Supreme People’s Procuratorate, and the Ministry of Public Security have drafted the “Guiding Opinions on Legally Punishing Cyber Violence and Crimes (Draft for Comment)”, which is now open to the public for comments.
The following is the full text of the Guiding Opinions of the Supreme People’s Court, the Supreme People’s Procuratorate, and the Ministry of Public Security on Punishing Cyber Violence and Crimes in accordance with the Law.
Supreme People’s Court Supreme People’s Procuratorate Ministry of Public Security
Guiding Opinions on Legally Punishing Cyber Violence and Crimes
(Draft for comments)
In order to punish illegal and criminal activities of cyber violence in accordance with the law, and effectively safeguard the rights and interests of citizens’ personality and normal online order, this opinion is formulated in accordance with the Criminal Law, Criminal Procedure Law, Civil Code, Civil Procedure Law, Public Security Administration Punishment Law, and other legal provisions, combined with law enforcement and judicial practice. .
1. Fully understand the social harm of cyber violence, and safeguard the rights and interests of citizens and cyber order in accordance with the law
1. Online violent acts of abusing, insulting, slandering, slandering, and violating privacy against individuals on the Internet, belittling the personality of others, damaging the reputation of others, and some causing serious consequences such as “social death” or even insanity, suicide, etc. Disturbing the order of the network, destroying the network ecology, causing hostility to run rampant in the network space, and seriously affecting the public’s sense of security. Different from traditional crimes, cyber violence is often carried out against strangers who have never met before. The victim has practical difficulties in identifying the offender and collecting evidence, and the cost of rights protection is extremely high. People’s courts, people’s procuratorates, and public security organs must fully understand the social harm of cyber violence, adhere to the stance of severe punishment, actively perform their duties in accordance with the law, provide adequate legal remedies for victims of “cyber violence”, safeguard the legitimate rights and interests of citizens, maintain the public’s sense of security, and maintain Normal network order.
2. Accurately apply the law and severely punish cyber-violent crimes in accordance with the law
2. Punish online defamation according to law. Creating and disseminating rumors on the information network, belittling the personality of others, and damaging the reputation of others, where the circumstances are serious and comply with the provisions of Article 246 of the Criminal Law, shall be convicted and punished for the crime of defamation.
3. Punish online insults in accordance with the law. Whoever publicly insults others by means of wanton abuse, vicious attacks, or disclosure of privacy on the information network, if the circumstances are serious and complies with the provisions of Article 246 of the Criminal Law, shall be convicted and punished as the crime of insult.
4. Punish violations of citizens’ personal information in accordance with the law. Organizing “human flesh searches” to illegally collect and distribute citizens’ personal information to an unspecified majority on the information network, where the circumstances are serious and comply with the provisions of Article 253-1 of the Criminal Law, shall be convicted and punished as the crime of violating citizens’ personal information.
5. Punish offline nuisance behavior according to law. Extending cyber violence to offline, intercepting and insulting victims of cyber violence and their relatives and friends, causing disturbances, intimidating, destroying property and other nuisance behaviors, in line with the provisions of Articles 275 and 293 of the Criminal Law, Convicted and punished for the crime of intentionally destroying property and the crime of picking quarrels and provoking trouble.
6. Punish in accordance with the law malicious marketing and hype behaviors carried out through cyber violence. For the purpose of hyping up popularity, promotion and drainage, etc., network service providers fail to perform their information network security management obligations in accordance with the law for discovered cyber violence information, and refuse to make corrections after being ordered by regulatory authorities to take corrective measures, resulting in a large amount of illegal information being disseminated or other Serious circumstances that meet the provisions of Article 286-1 of the Criminal Law shall be convicted and punished as the crime of refusing to perform information network security management obligations; if other crimes are constituted at the same time, they shall be convicted and punished according to the provisions of heavier punishment.
7. Punish illegal acts of cyber violence in accordance with the law. Those who commit cyber-violent acts such as defamation and insults on the Internet, which do not constitute a crime and comply with the provisions of the Public Security Management Punishment Law, shall be given administrative punishment according to law.
8. Severely punish cyber-violent crimes in accordance with the law. Adhere to strict law enforcement and justice, and for cyber violence and crimes, they should be seriously investigated in accordance with the law, and the wrong tendency of “the law does not blame the public” should be effectively corrected. We must focus on cracking down on malicious initiators, organizers, facilitators, and repeaters. For online violence and crimes, the spirit of severe punishment should be reflected, so that the people can fully feel fairness and justice. Whoever commits cyber violence crimes shall be severely punished under any of the following circumstances:
(1) Implemented against minors and disabled persons;
(2) Organized “water army” and “thugs” to carry out;
(3) fabricating “sexual” topics that infringe on the personal dignity of others;
(4) Using “deep synthesis” technology to publish illegal or bad information, which violates public order, good customs, and ethics;
(5) Initiated and organized by network service providers.
9. Do a good job in civil rights protection work in accordance with the law. When cyber violence is committed against others, infringing on others’ reputation rights, privacy rights and other personal rights, and the victim requests the perpetrator to bear civil liability, the people’s court shall support it in accordance with the law.
10. Accurately grasp the standards for identifying illegal and criminal acts. Reporting or exposing other people’s crimes or violations of laws and disciplines through the information network, as long as the facts are not intentionally fabricated or knowingly spread the fabricated facts, it should not be determined as a crime of defamation. Comments and criticisms on other people’s words and deeds, even if the views are biased and the remarks are extreme, as long as they are not wanton abuse or malicious slander, they should not be considered as insulting and illegal.
3. Unimpeded litigation procedures and timely provision of effective legal remedies
11. Implement the legal provisions of the public security organs to assist in the collection of evidence. If the victim files a private prosecution for online insults or defamation, and the people’s court finds that it is indeed difficult for the victim to provide evidence after review, it may request the public security organs to provide assistance in accordance with the provisions of the third paragraph of Article 246 of the Criminal Law. The public security organs shall, according to the requirements of the people’s courts and the specific circumstances of the case, promptly identify the actors and collect relevant evidence materials such as the dissemination of insulting and defamatory information and the impact it caused. With the assistance of the public security organ in obtaining evidence, if the conditions for accepting a private prosecution case are met, the people’s court shall decide to open the case; if the relevant evidentiary materials cannot be collected, the public security organ shall explain the situation to the people’s court in writing.
12. Accurately grasp the conditions for public prosecution of insult and defamation. According to the provisions of the second paragraph of Article 246 of the Criminal Law, those who commit crimes of insult and defamation, seriously endangering social order and national interests, should file a public prosecution. As for whether online insults and defamation seriously endanger social order, a judgment should be made based on factors such as the target of the infringement, motive and purpose, behavior, scope of information dissemination, and harmful consequences.
Under any of the following circumstances, the conduct of online insults and defamation shall be determined as “seriously endangering social order” as stipulated in the second paragraph of Article 246 of the Criminal Law:
(1) Causing serious consequences such as the victim’s insanity, suicide, etc., with bad influence;
(2) Arbitrarily targeting the general public and disseminating relevant information on a large scale on the Internet, causing a large number of vulgar and malicious comments, seriously disrupting the order of the Internet, and affecting the public’s sense of security;
(3) Insulting or slandering many people, causing bad social impact;
(4) Disseminating defamatory or insulting information repeatedly, or organizing or instigating personnel to disseminate large amounts of defamatory or insulting information, causing adverse social impact;
(5) Other circumstances that seriously endanger social order.
13. Apply the public prosecution procedures for insult and defamation criminal cases according to law. For online insults and defamation crimes that seriously endanger social order, the public security organs should file the case in a timely manner according to law. If the victim files a private prosecution with the people’s court at the same time, the people’s court shall persuade the private prosecutor to withdraw the private prosecution or rule not to accept it; if the case has been accepted, it shall rule to terminate the trial, and the original private prosecutor may participate in the lawsuit as a victim. For Internet insults and defamation, where the victim initiates a private prosecution, and the people’s court finds that the relevant act seriously endangers social order after review, it shall transfer the case to the public security organ.
14. Strengthen the supervision of case filing. In cases of cyber violence involving cyber insults, slander, and crimes of infringing on citizens’ personal information and other crimes, if the people’s procuratorate believes that the public security organs should file a case for investigation but does not, or the victim believes that the public security organ should file a case for investigation but does not, report to the people If proposed by the procuratorate, the people’s procuratorate shall request the public security organ to explain the reasons for not filing the case. If the people’s procuratorate believes that the reason for not filing the case cannot be established by the public security organ, it shall notify the public security organ to file the case, and the public security organ shall file the case after receiving the notification.
Higher-level public security organs should strengthen the professional guidance and internal supervision of lower-level public security organs on the filing of cyber-violence cases.
15. Apply the prohibition system for infringement of personality rights in accordance with the law. If the obligee has evidence to prove that the perpetrator is committing or is about to commit an illegal act that infringes on his personality rights, and if he fails to stop it in time, his legal rights and interests will be irreparably damaged, and he shall apply to the People’s Court for an order in accordance with Article 997 of the Civil Code Where the perpetrator stops the relevant behavior, the people’s court may make an injunction against the infringement of personality rights according to the specific circumstances of the case.
16. Initiate public interest litigation in accordance with the law. Where online violence harms social and public interests, the people’s procuratorate may file a public interest lawsuit with the people’s court in accordance with the law.
Where network service providers fail to perform their information network security management obligations in accordance with the law with regard to discovered cyber violence information, resulting in the massive dissemination of illegal information or other serious circumstances that harm the public interest, the people’s procuratorate may file a public interest lawsuit with the people’s court in accordance with the law.
4. Implement relevant work requirements and effectively improve comprehensive management measures
17. Effectively protect the rights and interests of victims. In view of the fact that related information about cyberbullying spreads widely, has great harm, and the impact is difficult to eliminate, it is necessary to release case progress information to the society in a timely manner in accordance with the law, clarify the truth, and effectively eliminate adverse effects. Apply the leniency system for pleading guilty and accepting punishment in accordance with the law, urge defendants to confess guilt and accept punishment, sincerely repent, and make public apologies through the media, etc., to achieve effective protection of the personality rights of victims.
18. Strengthen connection and cooperation. People’s courts, people’s procuratorates, and public security organs must strengthen communication and coordination, unify law enforcement and judicial concepts, unify understanding of the nature of online violence and case handling procedures, and orderly connect private prosecution procedures and public prosecution procedures to ensure smooth investigation, prosecution, and trial of cases. For major, sensitive, and complicated cases, the public security organs must listen to the opinions and suggestions of the people’s procuratorate in a timely manner to ensure that the cases are handled safely and according to law.
19. Do a good job in publicizing the rule of law. It is necessary to conscientiously implement the responsibility system of “whoever enforces the law and popularize the law”, and give full play to the role of rule guidance, value orientation and behavioral norms in law enforcement and case handling. Timely release typical cases involving cyber violence, clearly convey to the society that “cyberspace is not a place outside the law”, educate and guide the majority of netizens to consciously abide by the law, and lead the society in a civilized fashion.
20. Promote comprehensive governance of cyber violence. Based on law enforcement and judicial functions, on the basis of handling cases related to cyber violence according to the law, conduct actual litigation source governance, in-depth analysis of the root causes of cyber violence, proactively put forward judicial and procuratorial suggestions to relevant regulatory authorities, and promote cyber violence governance The long-term mechanism has been continuously improved to fundamentally reduce the occurrence of cyber violence and create a clean cyberspace.
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