Legal gas station
Introduction
As of June 2023, the number of netizens in our country has reached 107.9 billion. In the Internet information age, the speed of information transmission has spread exponentially. Especially for sensitive and hot topics, a casual remark made by a netizen may "stir up a thousand waves with one stone", and then cause a series of consequences.
1. Definition of online violence
Online violence refers to the concentrated publication of illegal information such as insults, abuse, rumors and slander, invasion of privacy, and other unfriendly information directed at individuals, infringing on the lawful rights and interests of others, and disrupting the normal online order. Online violence can take the following forms:
1. Online defamation: maliciously spreading rumors, or maliciously knowing that they are rumors, degrading the personality of others, and damaging the reputation of others.
2. Online insults: wanton abuse, vicious attacks, disclosure of privacy and other acts that openly insult others, including initiators and malicious followers.
3. Infringement of citizens' personal information: Organizing "doxing", collecting and publishing others' personal information, or participating in "doxing", providing other people's personal information to organizers, or obtaining others' personal information by illegal means.
4. Malicious marketing and hype: Conduct of network service providers maliciously using algorithmic recommendation functions to disseminate information on online violence or failing to perform management obligations to allow the spread of information on online violence for purposes such as hyping up popularity, promotion, and drainage.
II. Consequences of Online Violence
Civil Liability for Online Violence: Article 9 of the Guiding Opinions of the Supreme People's Court, Supreme People's Procuratorate, and Ministry of Public Security on Lawfully Punishing Violations and Crimes of Online Violence provides: "Where online violence is carried out against others, infringing on others' rights to reputation, privacy, or other personality rights, and the victim requests that the perpetrator bear civil liability, the people's courts shall support it in accordance with law." ”
Article 15 of the Opinions clearly applies the prohibition of infringement of personality rights to online violence in accordance with the law, stipulating: "Where the rights holder has evidence to prove that the perpetrator is committing or is about to commit illegal acts infringing on his personality rights, and failure to stop it in a timely manner will cause irreparable damage to his lawful rights and interests, and applies to the people's court to take measures to order the perpetrator to stop the relevant conduct in accordance with Article 997 of the Civil Code, the people's court may make an injunction for infringement of personality rights in accordance with the specific circumstances of the case." "The prohibition of personality rights is essentially to stop the infringement of personality rights in a timely manner, to prevent the occurrence or expansion of the harmful consequences of infringement of personality rights, and to have the function of preventing the protection of personality rights in advance. Different from personal safety protection orders, personality rights injunctions do not require that the applicant and the respondent have a family relationship, as long as the applicant can provide evidence to prove that the respondent is committing or is about to commit illegal acts such as infringement, and if it is not stopped in time, it will cause irreparable damage, and the applicant may apply to the people's court for a personality rights injunction.
Administrative Responsibility for Online Violence: Where the perpetrator of online violence does not meet the requirements for bearing criminal responsibility, but meets the punishment standards for ordinary cases of public security violations, it may also be regarded as a public security case, such as Article 25 of China's Public Security Administration Punishment Law: Warnings, fines, detention, and other punishments may be given for acts carried out on the Internet that impede public safety or disrupt social order.
Criminal liability for online violence: The following crimes may be involved in cyber violence: picking quarrels and provoking trouble, ** insulting, infringing on citizens' personal information, disseminating false terrorist information, etc.
1.Determination of online quarrels and provocations. Article 293 of China's Criminal Law stipulates that anyone who commits any of the following acts of picking quarrels and provoking troubles, disrupting social order, shall be sentenced to fixed-term imprisonment of not more than five years, short-term detention or controlled release: (1) arbitrarily assaulting others, where the circumstances are heinous; (2) Chasing, intercepting, or insulting others, where the circumstances are heinous; (3) Forcibly taking or arbitrarily destroying or occupying public or private property, where the circumstances are serious; (4) Causing a disturbance in a public place, causing serious disorder in a public place. Among them, the public places here not only include real public places, but also online public spaces, such as group chats, moments, Weibo and other social platforms. In addition, Article 5 of the "Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases of Using Information Networks to Commit Defamation and Other Crimes" stipulates that anyone who uses information networks to insult or intimidate others, and the circumstances are heinous and disrupt social order, shall be convicted and punished as the crime of picking quarrels and provoking trouble. Where false information is fabricated, or false information is clearly known to be fabricated, and is disseminated on information networks, or where persons are organized or instigated to spread it on information networks, causing serious public disorder, it is to be convicted and punished as the crime of picking quarrels and provoking trouble.
2.Determination of online defamation. According to article 246 of the Criminal Law, fabricating facts to slander others, where the circumstances are serious, constitutes *** From the perspective of judicial practice, among the current types of online violence, the problem of online defamation is the most prominent, and the online public opinion and serious consequences caused by such acts have attracted widespread social attention and strong reactions from the people. In order to punish online defamation in accordance with the law, Article 2 of the "Opinions" provides guidance on the application of online violence in light of the current characteristics of online defamation and its social harm, stipulating: "Where rumors are created or disseminated on information networks, derogating the personality of others, or harming the reputation of others, and the circumstances are serious, and meet the requirements of Article 246 of the Criminal Law, it shall be convicted and punished." ”
3.Determination of online insults. According to article 246 of the Criminal Law, the crime of insulting others by violence or other means is constituted if the circumstances are serious. The anonymity, collectivity, and immediacy of cyberspace make the social harm of online insults more prominent, which is mainly manifested in the wider and faster dissemination of relevant insult information, and the deeper damage to the victim's reputation and personal dignity. In order to punish online insults in accordance with law, article 3 of the "Opinions" stipulates: "Where methods such as wanton abuse, malicious slander, or disclosure of privacy are employed on information networks to openly insult others, and the circumstances are serious, and the provisions of Article 246 of the Criminal Law are met, it shall be convicted and punished as the crime of insult." ”
4.Regarding the handling of the organization's "doxing" and other behaviors. Through "human flesh search" and "unboxing", it is very easy for relevant individuals to directly become the target of massive online speech, and then suffer from online violence, and even cause offline nuisance and harm, causing more serious damage to personal rights and interests. For example, some perpetrators illegally purchase other people's ID numbers, portraits, workplaces, addresses and other personal information, and spread them on the Internet, which not only seriously infringes on the rights and interests of others' personal information, but also causes others to suffer all kinds of nuisances and injuries because their real identities, occupations and addresses are exposed to the public, and their personal and property rights and interests are also seriously infringed. Article 4 of the "Opinions" provides guidance on the application of the rules for the crime of infringing on citizens' personal information to the organization of "doxing" and other public and private online violence, stipulating: "Where the circumstances are serious and meet the requirements of article 253-1 of the Criminal Law, it shall be convicted and punished as the crime of infringing on citizens' personal information; Where other crimes are constituted in accordance with the provisions of the Criminal Law and judicial interpretations, it is to be convicted and punished in accordance with the provisions for the heavier punishment. ”
5.Regarding the handling of malicious marketing hype through online violence. At present, there is more than one phenomenon of online violence, which is largely related to the deliberate hype of hot spots and the harvesting of traffic by individual Internet users for profit. Some malicious hype has become the fuse that fuels the Internet** and triggers cyber violence, and even some cyber violence itself is maliciously concocted and instigated for the purpose of marketing hype. Speculators use online violence incidents to gain massive attention, promote marketing, and make huge profits; The victim is deeply trapped in the whirlpool of cyberviolence, with a damaged personality, unable to break free, and unable to fight. Article 5 of the "Opinions" adheres to the problem-oriented approach, clarifying the corresponding handling rules for such acts of malicious marketing and hype through the use of online violence, stipulating: "For purposes such as to stir up popularity, promote and attract traffic, the use of Internet users' public accounts to push or disseminate information on online violence and violations and crimes meets the requirements of Article 287-1 of the Criminal Law, it is to be convicted and punished as the crime of illegal use of information networks; Where other crimes are constituted in accordance with the provisions of the Criminal Law and judicial interpretations, it is to be convicted and punished in accordance with the provisions for the heavier punishment. ”
6.On the application of the crime of refusing to perform information network security management obligations. In accordance with the provisions of relevant laws and regulations, network service providers have corresponding information network security management obligations. For example, Article 47 of the Cybersecurity Law stipulates that: "Network operators shall strengthen the management of information published by their users, and if they discover information that is prohibited from being published or transmitted by laws or administrative regulations, they shall immediately stop the transmission of such information, take measures to address it such as erasure, prevent the spread of information, keep relevant records, and report to the relevant competent authorities." "There is no doubt that network service providers' performance of information network security management obligations in accordance with the law is of great significance to promptly blocking the dissemination of cyberviolence information and effectively curbing online violence. In practice, driven by profits, there are still situations where network service providers do not perform their information network security management obligations in accordance with the law regarding information related to online violence, violations and crimes. In order to strengthen governance at the source of online violence, article 6 of the "Opinions" provides guidance on the applicable circumstances of the crime of refusing to perform information network security management obligations, stipulating: "Network service providers do not lawfully perform information network security management obligations with respect to information discovered about violations and crimes related to online violence, and refuse to make corrections after being ordered to take corrective measures by the regulatory departments, resulting in a large amount of illegal information being disseminated or there are other serious circumstances, which meets the requirements of article 286-1 of the Criminal Law, Conviction and punishment for the crime of refusing to perform information network security management obligations; Where other crimes are constituted in accordance with the provisions of the Criminal Law and judicial interpretations, it is to be convicted and punished in accordance with the provisions for the heavier punishment. ”
Conclusion
As the saying goes, "bad words hurt people", online violence is also a kind of hidden violence, and the psychological and spiritual damage caused to people is even more difficult to recover. To this end, we advocate civilized access to the Internet, rational speech, and create a clear cyberspace and a harmonious online ecological environment.