Some people report individual problems to state organs in the form of public or petitions, or publish the injustice of cases experienced by themselves or their families on the Internet, or express their views on some things on the Internet, which may be treated as insults, slander, picking quarrels and provoking troubles.
The Ministry of Public Security's Circular on Handling Cases of Insult and Defamation in Strict Accordance with Law points out: "The criticism and suggestions made by some people from different angles are an expression of the exercise of democratic rights. It is inevitable that some people will complain and vent their grievances against some negative social phenomena, and even make some extreme remarks. If the criticism, complaints, and some extreme remarks of the masses are regarded as insults and slanders, and they are resolved by means of criminal punishment or public security punishment, not only will they have no basis in law, but may also intensify contradictions, and may even be used by people with ulterior motives to take the opportunity to attack China's social system and judicial system and affect the image of the party and the party. ”
Although there is such a principled provision of tolerance for criticism, complaints, and even some radical remarks, these criticisms, complaints, and radical remarks are not so good to some people, and it is easy to produce the phenomenon of putting an end to these criticisms and complaints through punishment.
The crime of insult often requires the victim to go to the court in person to file a lawsuit, and the standard of evidence in criminal proceedings is relatively high, and it is often difficult for the victim to collect credible and sufficient evidence of the crime by himself. Even so, it is not excluded that some judicial organs will directly investigate and prosecute the perpetrator with ***.
After all, the crime of picking quarrels and provoking troubles is a pocket crime and a public prosecution crime, so it is relatively easy to collect evidence and build up the facts of the alleged crime.
Only by first clarifying the criteria for determining insults, slander, and picking quarrels and provoking troubles can we make accurate assessments.
Point 10 of the "Guiding Opinions on Punishing Violations and Crimes of Online Violence in Accordance with Law" of the Supreme People's Court and the First Supreme People's Court states: "Reporting or exposing other people's crimes or violations of law and discipline through information networks, as long as they are not intentionally fabricated or knowingly fabricated facts and intentionally disseminated, shall not be found to be a defamation offense." Commenting on or criticizing the words and deeds of others, even if the views are biased or the remarks are somewhat extreme, as long as they are not wantonly insulting or maliciously slandering, it should not be found to be an insult or a crime. ”
Accordingly, only deliberately fabricating facts to disseminate and infringe upon the reputation and personality of others is defamation. Only wanton abuse and malicious slander are insults.
Although this article gives a certain standard of distinction, it still has a certain degree of ambiguity. It is a question of who determines the facts.
Although it is said that "it is not a deliberate fabrication of facts", then it should not be slander. If someone reports a certain **, it will bring great trouble to the **; **The department replied that the reported facts are not true, does that mean that the whistleblower is "deliberately fabricating facts"?
The crime of picking quarrels and provoking troubles on the Internet also requires the perpetrator to "deliberately fabricate facts" and have the subjective intent to cause trouble. Publishing what you think on the Internet will be found by the judicial authorities to have no factual basis, is it "deliberately fabricating facts" and suspected of the crime of picking quarrels and provoking trouble?
It cannot be determined that there is no factual basis only by relying on the unilateral negative reply of the ** department, at least it should be fully investigated and verified. As long as the parties can clearly explain the reasonableness of the information they have published, even if it is finally found to be "untrue" to a certain extent, it cannot be found to be "deliberately fabricating facts".
There is also a need to distinguish between facts and evaluations. There is a certain factual basis, but a different evaluation cannot be regarded as "deliberately fabricating facts" just because such an evaluation is not recognized.
For the parties, there should be a point of evidence to say a point, in order to better avoid the suspicion of insult and slander, in case of a real case, there is also evidence to defend themselves.
About author:Li Zhipeng is a criminal defense lawyer in Guangdong.