Lawyer Yang Xunjie: Core lawyer of the Economic Crime Defense and Research Center of Guangqiang Law Firm.
Research on the crime of illegal business operation
Is it illegal for an internet troll to provide paid post deletion services?How to defend effectively?
Foreword: In the Internet era, what enterprises are most afraid of is that "good things don't go out, bad things spread thousands of miles", some negative information circulates on the Internet, which seriously affects the image of the enterprise, leads to poor sales of the company's goods, and even causes the enterprise to go bankrupt and go bankrupt. For this reason, the deletion of negative reviews and information circulating on the Internet has become a key demand of corporate public relations. In the market economy environment, there is demand, which will give rise to the corresponding market, and paid deletion of posts has naturally become a "way to make money", but paid deletion of posts is prohibited by law, and is even suspected of constituting the crime of illegal business.
1. Online trolls were convicted of the crime of illegal business operations for providing paid deletion of negative posts
Basic case details] From 2018 to December 2019, Wang deleted negative posts on the Internet for Yuan's education and training in Shanghai through his **store, "Shanghai Fire Network***", and Yuan paid Wang a service fee through **. After that, from June 19, 2019 to September 3, 2019, Yuan paid Wang several times through WeChat transfer to delete negative online public opinion for a certain technology in Hangzhou, Yuan paid a total of RMB 11,700, and Wang deleted more than 20 negative online public opinions for Yuan, and collected a total of RMB 16,500. After investigation, for the purpose of personal profit, Wang used mobile phones, laptops and other equipment to undertake paid deletion of posts, posting, top posts and other businesses through ** orders and other methods, and provided others with services such as paid deletion of posts and public opinion annual subscriptions, and made a total profit of 177,680 yuan.
The court found that Wang violated state regulations and provided information through the information network for a fee for the purpose of profit, and the circumstances were serious, and his behavior constituted the crime of illegal business operation and should be punished in accordance with law.
2. What laws and regulations does the paid deletion of posts by online trolls violate?
On September 5, 2013, the Supreme People's Court and the Supreme People's Court issued the "Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases of Using Information Networks to Commit Defamation" (hereinafter referred to as the "Interpretation"), which stipulates how to apply the law to the use of information networks to delete posts. or clearly knowing that it is false information, providing services such as publishing information through information networks for a fee, disrupting market order, and following the provisions of Criminal Law article 225 (4), it is to be convicted and punished as the crime of illegal business operations. ”
Some people will ask that the premise of the constituent elements mentioned in the aforementioned provisions is "violation of state regulations", so what state regulations do online trolls violate by providing paid deletion services?
First, Article 4 of the Measures for the Administration of Internet Information Services stipulates that the State shall implement a licensing system for commercial Internet information servicesImplement a filing system for non-commercial Internet information services. In other words, the provision of Internet information services must obtain the corresponding license or perform the filing procedures, and if the network trolls do not obtain a license to engage in commercial Internet information services, they will violate the provisions of the aforementioned laws and regulations and operate without a license.
Second, as early as December 28, 2000, the Decision of the Standing Committee of the National People's Congress on Safeguarding Internet Security, adopted at the 19th Session of the Standing Committee of the Ninth National People's Congress, states that "in order to maintain the order of the socialist market economy and social management, the use of the Internet to sell fake and shoddy products or to make false propaganda about goods and services constitutes a crime shall be investigated for criminal responsibility in accordance with the relevant provisions of the Criminal Law." "The establishment and development of the Internet are accompanied by the establishment and development of the Internet, especially the rapid development of e-commerce and traffic economy, which has led to the barbaric growth of the Internet water army, and the paid deletion of negative information about enterprises and commodities has gradually become a "whitewashing" weapon for bad businesses, seriously affecting the market economic order of fair competition.
As we all know, consumers' truthful evaluation of goods is the right to freedom of speech granted by law, and it is a direct advertisement for consumers to understand the quality of goods. By deleting posts for a fee, online trolls provide businesses with services such as deleting negative reviews and "sinking" negative reviews, which is using the Internet to falsely advertise goods and services, in violation of the aforementioned legal provisions.
Third, on May 18, 2006, the People's Republic of China promulgated the Regulations on the Protection of the Right of Information Network Dissemination No. 468, emphasizing the protection of the rights of individuals in texts, works such as texts and other works published on the Internet, and that no individual or organization can deliberately delete or change the electronic information on the rights management of works, performances, audio and video recordings provided to the public by the right holder through the information network. Consumers' articles and other electronic information uploaded by consumers on e-commerce platforms and individuals from ** platforms, ** are subject to the individual's right to disseminate information granted by law, and it is obviously an infringement for the Internet trolls to delete or change the aforementioned electronic information without permission, and they must bear at least civil tort liability.
Fourth, Article 10 of the "Provisions on Several Issues Concerning the Application of Law in the Trial of Civil Disputes Involving the Use of Information Networks to Infringe on Personal Rights and Interests" adopted by the 1621st meeting of the Adjudication Committee of the Supreme People's Court on June 23, 2014 stipulates that: "If an agreement reached between the infringed party and the network user or network service provider that constitutes the infringement is that one party pays remuneration and the other party provides services such as deleting, blocking, or disconnecting links, the people's court shall find it invalid." Where specific network information is tampered with, deleted, or blocked without authorization, or by disconnecting links, others are prevented from obtaining network information, and the network users or network service providers who publish the information request that the infringer bear liability for infringement, the people's courts shall support it. Where the client is entrusted by another person to carry out such acts, the client and the trustee shall be jointly and severally liable. ”
From the foregoing provisions, it can be seen that even if the negative information constitutes an infringement of the personal rights and interests of others, and the infringed party spends money to request the network user or network service provider to delete, block, disconnect the link and other services to eliminate the impact of the negative information, such an agreement is not protected by law and is an invalid legal act. It is more difficult for online trolls who provide paid deletion of posts to obtain legal authorization or legal protection.
To sum up, the service of paid deletion of posts provided by the Internet trolls violates many national laws and regulations, and is not only not protected by the law, but also suspected of constituting a criminal offense and facing criminal prosecution.
III. How to effectively defend the suspected crime of illegal business operations for online trolls providing paid post deletion services
According to Article 7 of the Interpretation, violating national regulations and providing for the purpose of profit through the information network for a fee, the amount of illegal business operations of individuals reaching more than 50,000 yuan or illegal income of more than 20,000 yuan, and the amount of illegal business of units exceeding 150,000 yuan or illegal income of more than 50,000 yuan is an illegal business operation "serious circumstance" and is convicted and punished as the crime of illegal business operation. Therefore, the determination of the amount of illegal business operations or the amount of illegal gains of online trolls is the focus of the defense, and the determination of the amount of illegal business operations is the starting point, peeling back the cocoon, clarifying the lawful income and illegal gains, and ensuring that the facts of the determination of the amount of the crime are clear, and the evidence is credible and sufficient, so that the punishment can be achieved.
In judicial practice, the case-handling organs focus on collecting and verifying the following evidence: testimony of witnesses such as enterprises, e-commerce companies, and infringed persons who purchased deletion services;Obtain documentary evidence such as bank cards, WeChat, Alipay and other fund transaction details;The defendant's confession and justification of the number of transactions, amounts, targets, profits, and other facts during the period of engaging in paid deletion of posts;as well as electronic data such as text messages and social software chat records in the transaction process.
The above-mentioned evidence is the key evidence to prove the amount of illegal business operations or the amount of illegal gains, and only by correlating the chat records of the transactions reached between the online trolls and the recipients of the deletion services, the details of the fees paid, and the results of the deletion of posts (negative reviews) are all there is a complete and unique chain of evidence, so as to reach the criminal standard of proof that the facts are clear, the evidence is credible, and sufficient, and it is proved that the defendant has the illegal business conduct of deleting posts for compensation and the amount of the crime. In other words, without evidence such as witness testimony and details of fund disbursements, it is impossible to form a complete chain of evidence, and it cannot be generally considered that all income is the amount of illegal business operations or illegal gains.
Taking the (2020) Zhe 0105 Xingchu No. 237 criminal case as an example, Xian Moumou used ** store to promote paid deletion of posts and other online public relations services, and after investigation, the ** store transaction records collected a total of 870,000 yuan during the existence of the store, but it was actually found that there were 4 transactions confirmed by the object of purchasing the deletion service, with a total amount of 620,000 yuan. to the actual ascertained 620,000 yuan was used as the basis for determining the amount of the crime, and Xian XX's punishment was only eight months in prison, achieving the effect of a defense against the severity of the crime.
Conclusion: Since the beginning of this year, relying on the "Clean Network 2023" special action across the country to increase the intensity of the crackdown, a large number of cyber troll criminal gangs have been arrested and face criminal prosecution. It is worth noting that what kind of crimes should be convicted and punished by specific members of the cyber trolls, and what kind of punishment they will face, also needs to be analyzed on a case-by-case basis, and the identification of principal and accessory offenders is carried out on the basis of the status and role of different members in the criminal gang, as well as the size of the amount of illegal gains, so that the punishment is proportionate to the crime and the punishment is appropriate to the crime.