Xing Haoran
Recently singer Wuhongfei was placed in administrative detention for her bomb threat against the Construction Committee on her microblog, and micro-blogging celebrities Qin Huohuo, Li Er Chai Si and Rumormonger were detained by the police. These incidents have drawn attention to the issue of Internet rumor dissemination from official media outlets such as CCTV, the People's Daily, the Xinhua News Agency and other publications. A large-scale crackdown on Internet rumor dissemination has erupted like a wildfire in China. It seems China’s Internet development must undergo a "civilization implant" through reorganization and elimination of Internet rumors in order to lift the Chinese Internet from its current “Wild West” condition to a more modern condition. It should be noted that although this crackdown is being executed mainly by public authorities using their administrative powers, its basis in legal theory is far from obvious.
It is widely acknowledged that “a rumor is more fearsome than
tiger”. Especially in today’s society where the Internet is highly developed,
spreading rumors over the Internet can cause great social harm, rendering legal
compulsion an undoubted necessity. However, given the plethora of legal means to
combat Internet rumor dissemination, is criminal punishment really necessary?
As more and more Internet rumor disseminators are facing criminal liability,
many people have applauded the resulting improvement of the chaotic Internet
environment. Nevertheless, it can’t help but raise a question: “What crime was
committed by Qin Huohuo and other rumor disseminators, and what effect will
these sanctions will have on freedom of speech on the Internet?
In the author’s opinion criminal liability is the harshest form of legal liability, because it deprives a citizen of liberty and sometimes even life. That is why criminal law must be enforced under the principle of nulla poena sine lege (“no penalty without a law”). The identification, types and definitions of crimes as well as the types and severity of criminal penalties must be consistent with criminal law, and acts not prohibited by criminal law should not be punished as crimes. Since the PRC Criminal Code includes no specific crime of “spreading rumors”, criminal liability must not be imposed on Internet rumor disseminators unless their acts constitute crimes under other criminal laws. The Interpretations promulgated by the Supreme People's Court and the Supreme People's Procuratorate on September 2013, Certain Issues Concerning the Application of the Law to the Disposition of Cases Involving Defamation Via Information Networks and Other Criminal Offenses (the “Interpretations”) provide something approaching a certain legal basis via detailed regulations concerning certain acts of Internet rumor dissemination. Based on the Interpretations and cases that might involve criminal liability, Internet rumor dissemination might be characterized as (1) the crime of Illegal Business Operations (Article 225) the crime of Defamation (Article 246), the crime of Fabrication and Intentional Dissemination of False Terrorism Information (Article 291) or the crime of Provoking Trouble (Article 293). In the following section I’d like to discuss whether Internet rumor dissemination should be regarded as a crime.
(1) The
Crime of Illegal Business Operations
Under the Criminal Code, whoever engages
in illegal business operations that disrupts market order will be subject to
criminal liability if the circumstances are serious. The elements of this crime
include (i) engaging in illegal business operations (ii) disturbing market order
and (iii) serious circumstances. Potential defendants include both individuals
and entities that are subject to criminal liability. The criminal intent that
triggers this crime is the intentional pursuit of illegal profits. Most Internet
rumors are not disseminated in business operations or for illegal profits. As
stated by Mr. Jiang, who was detained by the police for falsely stating that
H7N9 bird flu was found in Songmen, Zhejiang province, “Most rumor disseminators
are motivated simply by a desire to enhance their online reputation and satisfy
their curiosity." Accordingly, activities motivated by such sentiments cannot
constitute the crime of Illegal Business Operations.The criminal detention of
microblogging celebrities “Qin Huohuo” and “Li Er Chai Si” marked the climax of
the crackdown of Internet rumor dissemination. Qin Huohuo established the
Beijing Er Ma Interactive Marketing Planning Company to engage in Internet
marketing and promotion services. He instructed his employees on how to obtain
illegal profits, and organized Internet dissemination groups to fabricate rumors
and spread them in cooperation with others via microblogging,, forums and other
Internet platforms; his acts included organization planning, fabrication and
dissemination of rumors; intentional speculation on Internet issues and
malicious defamation of public figures to achieve company profit objectives. Qin
Huohuo confessed that his company concocted rumors concerning the 723 Wenzhou
train crash, the Guo Meimei Red Cross scandal and the Zhang Haidi controversy.
These rumors were among over 3,000 rumors that were fabricated and disseminated
by his company. It is the business nature and profit motive that distinguish
this type of activity from ordinary rumor fabrication and dissemination. For
this reason, most legal experts and scholars agree that Qin Huohuo committed the
crime of Illegal Business Operations and was thereby properly detained by the
Beijing police. This viewpoint, however, has some theoretical problems to
overcome.
The crime of Illegal Business Operations is classified by its
object of harm as “undermining socialist market order” which requires
“disruption of market order”. According to legal scholars, Illegal Business
Operations is an economic crime that disrupts economic market order by damaging
the systems and standards of economic management. Qin Huohuo and Er Ma Company’s
operations obviously didn’t disrupt market order. Although its operations
violated the “right to know” held by the general public and certain individuals
through the use of fabrication, exaggeration and misrepresentation; since they
did not impact the country’s economic system or market access policies, they did
not disturb market order.
In objective terms, to commit the crime of Illegal
Business Operations one must commit illegal acts during business operations that
disrupt market order, and the circumstances must be serious. "Illegal acts"
means acts that violate national statutes and regulations governing market
access policies. Article 225 of the Criminal Code prohibits unauthorized
franchising practices; dealing in goods subject to a legal monopoly or legal
restrictions without appropriate authorization; buying or selling import or
export licenses, import/export certificates of origin or other business licenses
or approval documentation required by law without authorization; dealing in
securities, futures, insurance or negotiable instruments without authorization,
and other illegal operations that seriously disrupt market order. Please note
that “other illegal operations that seriously disrupt market order” is a
catch-all clause that allows the criminalization of other conduct that seriously
disrupts market order even if not listed in Article 225. Accordingly, based on
Article 7 of the recently issued Interpretations, “In any of the following
circumstances, whoever violates national regulations by providing information
deletion services with compensation or, for reasons of pecuniary gain, releases
information to information network services that the releaser knows to be false,
is guilty of illegal Business Operations if the circumstances are particularly
serious circumstances. Guilty parties shall be convicted and punished
accordingly The acts of Qin Huohuo and others obviously constituted the release
of known false information via an information network for the purpose of
pecuniary gain. Considering the content of the Interpretations together with the
introduction to the background of the Interpretations by a spokesman for the
Supreme Court, Qin Huohuo is very likely to have committed the crime of Illegal
Business Operations.
It must be pointed out that, on one hand the
Interpretations are not subject to arbitrary interpretation – certain standards
must be complied with. The crime of Illegal Business Operations, however it was
interpreted, must focus on "disruption of market order" as an essential
characteristic. The author doubts that Er Ma company’s operations could disrupt
market order. On the other hand, Er Ma was primarily engaged in Internet
marketing and promotion. The operation did not itself violate national laws or
administrative regulations even if it incorporated illegal acts into its
promotional efforts. Accordingly, the question arises whether the operation
should be considered “in violation of national regulations" as set forth in the
crime of Illegal Business Operations.
In addition, the Interpretations did
not define "false information". In the event of a broader interpretation that
“information not truly presented" is false information, the operators of
advertising and media businesses would also be under suspicion of disseminating
false information because exaggerations (“sales puffery”, for example) is so
common in these industries. Consequently, to prevent this crime from being
defined in a frivolous manner, the definition of the crime of Illegal Business
Operations should be further refined.
(2) Criminal
Defamation
As mentioned earlier, the nature of Internet rumor dissemination
is fabrication, exaggeration or misrepresentation. If the false information is
disseminated on the Internet, the victims’ dignity and reputation might be
harmed. If the harm reaches a certain degree, it is entirely possible that it
will qualify as criminal defamation, rendering the perpetrator liable for
criminal conviction and sentencing. Criminal defamation is therefore a crime
that can be used directly to punish Internet rumor dissemination. In
consideration the nature of the conduct, the author believes that the following
issues deserve attention with respect to criminal defamation.
First,
criminal defamation is generally a private criminal offense (unless it gravely
threatens social order or the interests of the state). Consequently, the police
will not investigate such a case and the court will not try it unless the victim
initiates a prosecution. In other words, if the victim does not file a complaint
with the court system or with the police, these authorities have no authority to
investigate or prosecute. When rumors are spread and forwarded via the Internet,
victims are normally unaware of the source of the rumors. Even if the source is
ascertained, because of the virtual nature of the Internet, the perpetrator will
likely be able to conceal his/her identity. Consequently, prior to determination
of the identity of the perpetrator it is difficult for victims to enforce their
rights with criminal sanctions. This is the undoubtedly the most challenging
obstacle to the regulation of defamatory content on the Internet. Nevertheless,
Article 3 of the Interpretations provides that the defamation of many people in
a manner that results in adverse social impact should be regarded as causing
serious damage to social order or the interests of the state, allowing the
prosecutor’s office to initiate a prosecution. This provision can certainly play
an active role in helping victims enforce their rights.
Second, information
subject to criminal defamation must be entirely fabricated. If the information
is true and the disseminator merely violates the victim’s privacy, dissemination
of the information is not criminal defamation even if it includes malicious
exaggeration and insults that defame the victim’s character and
reputation.
Third, defamation infringes the civil and democratic rights of
natural persons – individuals, not entities. According to the relevant
provisions of the Supreme Court, infringement of the legal right of the legal
persons, groups or other organizations is not subject to criminal defamation.
When a company is defamed and Internet rumors seriously infringe its image and
reputation, Article 221 of the Criminal Code (the crime of defaming the
reputation of a company or product) can be used.
Finally, criminal defamation
requires that the circumstances be serious. Article 2 of the Interpretations
provides that defamation will be classified as “a serious circumstance” under
any of the following circumstances in which a person is defamed through an
information network:
1. The same defamatory information has been viewed
over 5,000 times or has been forwarded over 500 times;
2. The defamation
causes serious consequences to victims or close relatives such as insanity,
self-harm or suicide;
3. The perpetrator has been subject to
administrative punishment for defamation within the two preceding years and
continued defaming others; or
4. Other serious circumstances.
Among
these circumstances, the standard that an item of information must be viewed
over 5,000 times or forwarded over 500 times is the most controversial. Specific
legal criteria defining criminal defamation is undoubtedly relevant to trial and
provides helpful guidance. Nevertheless, the controversy revolves around whether
these standards are scientific and reasonable A spokesman for the Supreme
People's Court stated that the standards are determined on the basis of
empirical research and professional debate. The author believes that it is still
in doubt whether this standard is truly scientific; however, it is certain that
the implementation of the Interpretations will greatly impact the micro-blog
“Big VIP” and the words and actions of other Internet celebrities.
On one
hand, Internet celebrities, as "public figures", must be cautious about their
words and actions because they tend to have a significant impact on Internet
behavior. Once their words and deeds rise to the level of serious misconduct,
they may be imprisoned. On the other hand, the comments of bloggers with
numerous fans might be viewed and forwarded 10, 000 times or more, and such a
large quantity of information will inevitably contain a certain amount of
extreme content or false information. In order to prevent the abuse of criminal
liability, however, it must be emphasized that not all Internet rumors causing
serious impact should be considered criminal – malicious intent should be a
prerequisite for criminal liability.
(3) The Crime of Fabrication and
Intentional Dissemination of False Terrorist Information
Article 291 of the
Criminal Code defines the crime of Fabrication and Intentional Dissemination of
False Terrorist Information as the intentional fabrication and deisemination of
terrorist threats of explosions, chemical and biological threats or
radioactivity in a manner that seriously disrupts public order. In reviewing
rumors widely disseminated on the Internet, a large quantity of terrorist
information can be found such as "H7N9 breaks out again" and "the army enters
Beijing". This kind of information exerts a very bad influence. In my opinion,
convicting people of Fabrication and Intentional Dissemination of False
Terrorist Information will not be problematic in terms of legal theory. Extreme
caution should be employed when identifying and responding to such behavior,
however, especially with respect to the following issues:
First, the scope of
the term "terrorist information" must be strictly limited and overbroad
interpretations should be forbidden. Under the general theory, terrorist
information must not threaten the safety of specific persons or property, but
should be information that has a tendency to create a general atmosphere of
terror as threats of explosions, chemical and biological attacks and
radioactivity. Accordingly, policy rumors such as "gasoline prices will rise 30
percent next month" or "a fire will break out somewhere" will not lead to panic
and should not be considered terrorist information, especially extreme comments
and viewpoints offered by Internet users concerning government policies or
social phenomena.
Second, the crime must be committed intentionally. In
other words, perpetrators of this crime must fabricate terrorist information
concerning threats of explosion or biological, chemical or radioactivity threats
while clearly knowing that the information is fabricated, and they must
intentionally disseminate this information. Mere negligence will not satisfy
this standard. It means those who disseminate information that they mistakenly
consider true or who mistakenly believe the information does not concern
terrorism are not guilty of this crime.
Finally, the terrorist information
must have the potential to trigger panic and disrupt social order. In
particular, note the difference between fabricating rumors and venting emotions
on the Internet. As a space for free expression, the Internet should tolerate a
certain degree of the inevitable biased and false statements that are actually
nothing more than emotional catharses that lack the potential to cause general
panic. Such statements can be naturally digested by the Internet and should be
allowed because arbitrarily imposing criminal liability based on fabrication of
terrorist information could be more harmful than the fabrication itself.
Some
time ago singer Wu Hongfei threatened via micro-blog to blow up the Construction
Committee. This is a quite typical case. Although her statement was obviously
inappropriate, after reviewing her usual style of language, her identity and her
subsequent micro-blogging topic "I want to fry chicken wings", we may conclude
that the threat to blow up the Construction Committee was expressed merely to
vent negative emotions, and that no reasonable person would take it seriously.
For this reason even if Wu Hongfei’s statement contained "terrorist elements"
and was presented intentionally, she did not commit the crime of Fabrication and
Intentional Dissemination of False Terrorist Information because the statement
was not likely to cause panic or disturb social order. The Beijing police
appropriately punished Wu Hongfei by imposing administrative rather than
criminal sanctions.
(4) The Crime of “Provoking Trouble”
The Public
Security Administration investigated Qin Huohuo for another crime, the crime of
Provoking Trouble. Article 293 prescribes the following conditions for this
crime:
(1) committing a flagrant random assault;
(2) flagrantly pursuing,
intercepting, verbally abusing or threatening another;
(3) forcibly taking or
demanding, willfully damaging or occupying public or private property to a
serious degree; or
(4) creating a public disturbance in a manner that causes
serious disorder.
Qin Huohuo obviously did not meet the first, second or
third condition. Whether he committed this crime, then, must depend on whether
he created a disturbance in a public place that caused serious disorder. The
crucial point here is whether the Internet qualifies as a “public place” .
According to Article 5 of the Interpretations, anyone who knowingly disseminates
false information or organizes and instigates others to disseminate false
information via an information network and thereby creates a disturbance that
results in serious public disorder, is guilty of the crime of Provoking Trouble.
Although this article clearly classifies information networks as public places,
the author disagrees.
Generally, a public place is thought to be a crowded
place that serves for people’s use and activity. Both individuals and their
conduct are exposed to the public. The Internet, however, in most people's
minds, is mainly an "information carrier " rather than a “people carrier”
although it is also open to the public. In fact, the public perception of the
Internet as both virtual and private contributes to the Internet’s function as a
free platform for people to express their opinions and ideas. To recognize the
Internet as a “public place” contradicts the usual logic. Under principles of
statutory interpretation, the crime of Provoking Trouble in Article 293 of the
Criminal Code stresses the “immediacy” and “violence” of the act, which is
significantly different from Internet rumor dissemination. Even the
Interpretations of the Supreme People's Court and the Supreme People's
Procuratorate on Several Issues Concerning the Application of the Law to
Criminal Cases of Provoking Trouble (effective July 2013) also did not treat the
Internet as the public place. Consequently, the treatment of this issue in the
Interpretations is quite far-fetched.
As stated above, China's Criminal Code
neither directly criminalizes the dissemination of rumors nor offers any other
provision that is perfectly suited to punish acts of Internet rumor
dissemination. We must be extremely cautious in using criminal defamation or
Fabrication and Intentional Dissemination of False Terrorist Information, even
though certain acts of dissemination sometimes satisfy the constituent elements
of these crimes. The Public Security Administration’s determination that Han
Huohuo committed the crime of Illegal Business Operations and the crime of
Provoking Trouble is questionable.
Although it is said that rumors stop when
they reach a wise man, the law can stop a rumor even more effectively. The
Interpretations will certainly close loopholes in existing law and apply legal
force to punish Internet rumor dissemination with transparent conviction and
sentencing standards. It will certainly play an active and significant role in
reorganizing the Internet. Nevertheless, some of the clauses are problematic
interpretations of criminal law, such as its emphasis on placing the need for
convictions over the enforcement of rigorous and rational laws, putting it into
conflict with the Criminal Code. The author believes that law enforcement should
not mean randomly applying harsh criminal penalties to punish and warn others.
Instead, criminal liability should be regulated by scientific rigor and a
rational legal system so as to prevent the law from devolving into a mere policy
tool.
In practice, when Internet rumors infringe the legal rights of natural
persons or business entities, the victims can assert their rights of reputation
or their rights of privacy by having their attorneys file lawsuits. Both law and
theory require further improvement to distinguish between the obligations of
people who disseminate rumors, ordinary Internet rumor fabricators and
celebrities. If Internet rumors include false reports of danger or disease, or
if they otherwise intentionally disturb public order, the rumor disseminators
may be subject to administrative sanction under the Public Security
Administrative Punishment Law, and the Measures for the Administration of
Computer Information Networks and Internet Security and Protection. Regardless
of whether or not future criminal legislation adds the crime of “spreading
rumors " to the Criminal Code, civil and administrative liability are the major
legal pathways for punishing the Internet rumor dissemination and criminal
punishment should be reserved for extraordinary circumstances.
Furthermore,
we need to ask why so many people believe the rumors appearing on a
rumor-saturated Internet. The author believes that this situation results from a
hostile, suspicious Internet environment rather than from the naiveté and
benevolence of Internet users. Theories developed in communications studies
indicate that people tend to believe whatever they want to believe. Emotions and
viewpoints accumulate on the social landscape as enduring stereotypes, and
rumors quickly sprout and spread when they flatter these stereotypes. The
resulting flames are fanned by insufficient information disclosure,
inappropriate behavior by the government, and by efforts to hide the truth. This
encourages Internet users, in their discontent, anger and rebellion, to fall
into the trap of rumor networking. To solve this problem we must strike and the
root of it. Attempts to find a purely legal solution are narrow-minded and
insufficient.
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