Does providing technical support for the ** network platform constitute a crime and how to characterize it?Author: Zhang Chun, a core lawyer of the Economic Crime Defense and Research Center of Guangdong Guangqiang Law Firm, focusing on the defense of economic crime casesNote: This article is original and may not be allowed without permissionThe crime of disseminating ** items is an act in which the perpetrator uses various means, including reproduction, trafficking, and other crimes, to make ** items widely spread among uncertain subjects, and the circumstances are serious. However, the crime of online dissemination of ** items is a new way of communication in today's Internet field. Different from the traditional crime of disseminating goods, the crime of disseminating goods on the Internet includes two elements: network and dissemination, and the use of the Internet to disseminate this crime is a more important feature. The Internet is used for uploading, linking and linking, and the items are mainly in the form of audio and audio, which are not limited by time and space at all, and the speed of transmission is faster and the scope is wider. All of this is inseparable from the support of technical personnel, so it is necessary to discuss the qualitative characteristics of technical personnel. In the process of disseminating ** items through the network, a large amount of technical support is required, and under normal circumstances, such technical support behavior does not constitute a crime. If it is only a purely neutral act of helping, it cannot be found to be an aider. However, if the neutral act of the actor objectively disseminates the ** article, and the actor also has a certain understanding of the act, how should this situation be determined?There are different views in judicial practice. The majority view was that the penalties for neutral conduct should be limited. However, according to the judicial interpretations of the Supreme People's Court and the Supreme People's Court, as long as the actor's behavior has an objectively helpful effect, and the actor also subjectively realizes that the object of his assistance is to disseminate ** goods, he should be found to be an accomplice. On the basis of article 287-2 of the Criminal Law, where one clearly knows that others are using information networks to commit crimes, and provides them with technical support such as internet access, server hosting, network storage, or communication transmission, or provides assistance such as for advertising and promotion, payment and settlement, and the circumstances are serious, a sentence of up to three years imprisonment or short-term detention is to be given, and/or a fine. Where a unit commits the crime in the preceding paragraph, the unit is to be fined, and the directly responsible managers and other directly responsible personnel are to be punished in accordance with the provisions of the first paragraph. Where conduct in the preceding two paragraphs simultaneously constitutes other crimes, follow the provisions for the heavier punishment at trial and sentencing. Therefore, we can see that the situation in which the perpetrator builds, maintains, operates and promotes the platform knowing that it is the first platform meets the constitutive elements of the crime of disseminating ** goods for profit and the crime of aiding information network activities. If two crimes are committed by one act, they will eventually be found to be guilty of a heavier crime and will be convicted and punished. Therefore, in this type of case, when defending the perpetrator's behavior, it is not enough to only defend the crime of aiding information network activities, but we also need to argue whether the platform served by the actor is a first-class pornography-related platform, so as to prove that it is not an accomplice. The crime of aiding information network criminal activities is a new crime added to the Criminal Law Amendment (IX) promulgated in 2015, that is, knowing that others are using information networks to commit crimes, providing them with technical support such as internet access, server hosting, network storage, and communication transmission, or providing assistance such as advertising and promotion, payment and settlement, and the circumstances are serious, a sentence of up to three years imprisonment or short-term detention is to be given, and/or a fine. Where a unit commits the crime in the preceding paragraph, the unit is to be fined, and the directly responsible managers and other directly responsible personnel are to be punished in accordance with the provisions of the first paragraph. Where conduct in the preceding two paragraphs simultaneously constitutes other crimes, follow the provisions for the heavier punishment at trial and sentencing. For example, in the case of Du, a company provided server leasing and technical services for a number of online gambling platforms. Generally, the company establishes a server for rent, contacts the illegal builder through the chat tool, and provides services in the case of knowing that it is involved in pornography, performance, gambling and other content, and establishes a chat group with the illegal builder one by one, and the technical personnel of the company in the group are responsible for solving network-related technical problems for customers, and the customer service staff is responsible for answering questions such as server rental, renewal, and technical charges, so as to ensure that the illegal ** can operate normally. The court held that the defendant clearly knew that it was *** but still provided technical support, causing *** to spread widely, seriously disrupting the network environment, corrupting the social atmosphere, and constituting a crime. Du and Zhang were both sentenced to 1 year in prison with a 2-year suspended sentence for aiding information network criminal activities. According to Article 86 of the "Provisions of the Supreme People's Procuratorate and the Ministry of Public Security on the Standards for Filing and Prosecution of Criminal Cases under the Jurisdiction of Public Security Organs (1)" [Cases of Organizing ** Performances (Criminal Law Article 365)] Where a performance is organized by means such as planning, recruiting, coercing, hiring, enticing, providing venues, or providing funds, a case shall be filed and prosecuted if any of the following circumstances are suspected: (1) Organizing performers to perform ** performances;(2) Organizing performers to use their sexual organs to perform obscene sexual performances;(3) Organizing performers to perform semi-** or covert** performances and concretely depicting sexual conduct through language or movements;(4) Situations where other organizations conducting ** performances should be pursued for criminal responsibility. For example, in the case of defendant Wang X 1 et al. (handled in a separate case), Wang X 1 entrusted defendant Li X to build a "Date Bar" mobile app live broadcast platform for him, and Li, An XX, and Zheng XX jointly built a "Date Bar" ** live broadcast platform for Wang X 1 and provided technical services for the platform, and defendant Li X constituted the crime of organizing ** performance. (On the basis of article 365 of the Criminal Law, those who organize the performance of ** shall be sentenced to up to three years imprisonment, short-term detention or controlled release, and shall also be fined;)where the circumstances are serious, a sentence of between 3 and 10 years imprisonment and a concurrent fine is to be given. Article 7 of the Interpretations of the Supreme People's Court and the Supreme People's Court on Several Issues Concerning the Specific Application of Law in Handling Criminal Cases of Production, Reproduction, Publication, Sale, and Dissemination of Electronic Information Using the Internet, Mobile Communication Terminals, and Voice Stations (hereinafter referred to as "Interpretation 1") stipulates that: Clearly knowing that others are committing crimes of producing, reproducing, publishing, selling, or disseminating electronic information, providing them with Internet access, server hosting, network storage space, communication transmission channels, Where assistance is provided in the settlement of expenses, the directly responsible managers and other directly responsible personnel are to be punished as joint crimes. Article 6 of the Supreme People's Court and the Supreme People's Court's "Interpretation (II) on Several Issues Concerning the Specific Application of Law in Handling Criminal Cases of Production, Reproduction, Publication, Sale, and Dissemination of Electronic Information Using the Internet, Mobile Communication Terminals, and Voice Stations" (hereinafter referred to as "Interpretation II") stipulates that telecommunications operators and Internet information service providers clearly know that they are providing them with Internet access, server hosting, network storage space, communication transmission channels, In any of the following circumstances, the directly responsible managers and other directly responsible personnel are to be convicted and punished for the crime of disseminating ** items for profit in accordance with the provisions of the first paragraph of Criminal Law article 363: (1) providing the above services for five or more people;(2) Providing services such as Internet access, server hosting, network storage space, and communication transmission channels, and charging service fees of more than 20,000 yuan;(3) To provide collection services for ***, and collect service fees of more than 50,000 yuan;(4) Causing serious consequences. Where the conduct provided for in the preceding paragraph is carried out in quantity or amount five times or more than the standards provided for in items (1) through (3) of the preceding paragraph, it shall be found to be "serious circumstances" as provided for in paragraph 1 of Criminal Law article 363;Where the required standard is 25 times or more, it shall be found to be "especially serious circumstances". For example, in the case of Huang Moumou et al., Huang Moumou et al., for the purpose of making profits, under the guise of selling men's health care products, rented a network server through a technician Li Moumou and built a *** network platform, uploaded *** on the platform and published 20 *** network links twice a day in the chat group formed, spreading *** for illegal benefits. At the same time, it also recruits ** or cooperates with group owners who sell men's health products to spread **sex*** in chat groups and make profits. The criminal suspect Zhang Moumou also acted as the ** of the other two "pornography" platforms to seek illegal benefits. The court found guilty of disseminating ** items for profit and sentenced them to fixed-term imprisonment ranging from 1 to 13 years.
In the case of the crime of disseminating ** items for profit, the court's view was that the technical personnel's helping behavior constituted an accomplice relationship with the crime of platform operation, and the technical personnel's act of providing assistance for profit while knowing that it was a live broadcast of ** items, also constituted the crime of disseminating ** items for profit. From the above cases, we can see that there is still some controversy over whether technical personnel providing assistance to the live broadcast platform are suspected of the crime of disseminating ** items for profit, organizing ** performances, or aiding information network criminal activities.