(By You Yunting) Recently, Chinese governments have cracked down on the spreading of rumors online, and have arrested some web users for allegedly fabricating or disseminating online rumors. A lot of netizens have voiced their objections that this crackdown suppressed the “proper freedom of speech.” In our opinion, theoretically, online rumors shall better be handled through other means of self-remedy, such as the victims filing civil or criminal lawsuits against the alleged rumormongers. However, government intervention is in some cases a realistic necessity to more effectively crackdown online rumors, because in some cases the victims hurt by online rumors cannot file a lawsuit on their own initiative, often resulting from a failure to discern the rumormonger’s identity.
Pursuant to current criminal laws and regulations, the legal grounds for government crackdowns on the spreading of online rumors are inadequate. Such inadequate systems cannot curb the spreading of rumors online. If the Chinese government opens an established query system for netizens’ identities, if the victims hurt by online rumors can provide an “identity certificate” and preliminary evidence resulting from the previous rumors, then the victims can inquire into the real identities of the online persons, and could subsequently file a civil or criminal lawsuit against the rumormongers, thus thereby sufficiently curbing the spreading of rumors online and preventing the government from using excessive enforcement of law in violation of the citizens’ freedom of speech. The following is our detailed analysis:
Chapter 1 the Criminal Offenses in the Crackdown on Online Rumors
I. The Crime of Creating Disturbances
According to media’s report, the police in Beijing arrested litigants suspected of the crime of creating disturbances in two cases: in one case, Qin Zhihui and Yang Xiuyu of the Beijing Erma Interactive Marketing and Planning Company utilized the web to spread rumors. Another was the journalist Liu Hu, who always discloses allegations of official corruption on the Internet, and whom was detained by Beijing Police on suspicion of fabricating and spreading rumors(note: the link is in Chinese).
Article 293 of the Criminal Law reads: “Whoever commits any of the following acts of creating disturbances, thus disrupting public order, shall be sentenced to fixed-term imprisonment of not more than five years, criminal detention or public surveillance: (1) beating another person at will and to a flagrant extent; (2) chasing, intercepting or hurling insults to another person to a flagrant extent; (3) forcibly taking or demanding, willfully damaging, destroying or occupying public or private money or property to a serious extent; or (4) creating disturbances in a public place, thus causing serious disorder in such place.” The previous two cases, where the alleged disturbances were implemented on the Internet, obviously do not meet any of the above criteria as regulated pursuant to Article 293. The key point is that, although the litigant published false information, it should be the party who has injured by the online rumors that should instigate litigation, rather than police investigation for criminal responsibility by means of criminal procedure.
According to the understanding of the police in Beijing, the network space is a “public place”, such that the previously mentioned acts in two above cases are conforming to “creating disturbances in a public place, thus causing serious disorder in such place.” Furthermore, the police in Beijing also stated that it is a breakthrough in judicial practice to define a network space as a public place. However, in our opinion, according to the principle of legality (“Null poena sine lege”) in current Criminal Law “one cannot be sentenced as guilty for an action if the law doesn’t prescribe it as illegal”; if there are no laws regulating that a network space is a public space, the Police’s understanding constitutes an expanded interpretation, obviously unsuitable for this application.
II. The Crime of Extortion by Blackmail
According to a news report, the police in Shanxi province recently detained suspects who blackmailed and extorted money from another person by means of releasing false information. Pursuant to Article 274 of the Criminal Law, the crime of extortion by blackmail refers to an act that uses the means of extortion or blackmail to forcibly request public or private money with the purpose of illegal possession. In the author’s opinion, if the suspects are in effect engaging in such acts as extortion or blackmail, then such acts constituting the crime of extortion by blackmail is without doubt. However, in cases of online rumors, currently only a small number involve accusations of extortion and blackmail.
III. Criminal Libel
The police in Shanghai detained one suspect accused of the criminal libel, who fabricated at least two online rumors; first, that a female official in the China Petroleum and Chemical Corporation accepted a costumer’s brothel service for women; and second, that a police chief in Shanghai’s Jinshan District was involved in a murder case, according to the report. Pursuant to Article 246 of the Criminal Law, libel refers to an act that, in serious cases, whoever publicly humiliates another person or invents stories with the intention to thoroughly defame another person’s character and damage his or her reputation. Accordingly, libel shall be, however, handled only upon complaint, expect where serious harm is done to public order or to the interests of the state. An obstacle behind the Police utilizing criminal libel to crackdown on online rumors is that most of the cases of libel do not involve serious harm to the public order or to the interests of the State; therefore, the Police should not be involved these online rumor cases.
Chapter 2 Legal Obstacles in Self-Remedy as a Method of Cracking Down on Online Rumors
Using criminal procedure to crackdown on online rumors by the police is extremely limited in scope. Among the three crimes mentioned in our post, using the crime of creating disturbances is not appropriate in handling the previously mentioned cases. Under circumstance where using the crime of extortion by blackmail meets the requirements of carrying out the extortion, suspects in many similar cases do not actually personally engage in extortion per se, thereby not completely conforming to the criteria required for the crime of extortion by blackmail. As for the widest involvement in criminal libel, only rumors where serious harm is done to the public order or to the interests of the state will be investigated by the police. As for those suspected of fabricating online rumors more than once recently released by the police, if the victims of said rumors file a civil or criminal lawsuit when the suspects first fabricated the online rumors, then similar online rumor cases will be curbed significantly. As determined by current legal provisions, a victims’ self-remedies on safeguarding rights have some big legal barriers, and it would be nearly impossible to safeguard rights within self-remedy alone.
The significant point is that by its very nature the Internet is still the realm of the anonymous, and as such an Internet account on various forums will not correspond to the real identity of those netizens spreading false and harmful rumors. The victims typically have great difficulties matching an online person with the real person. If a match is needed, the process is typically rather long and complicated, with the victims requesting an IP address of the computer where the comment originated from a website operator, who will then take that request to an Internet Service Provider to make the appropriate queries into its records based on its IP database of subscribed users. What’s more, sometimes the rumormongers fabricate online rumors by using public networks or a proxy server, thereby making it nearly possible to discover the true identity of the person behind the rumors through the technical investigation.
Therefore, victims hurt by online rumors will find it incredibly impossible to safeguard their rights on their own, for the telecom operators at present cannot provide private individuals with an established query system for netizens’ identities. Even if the victims know roughly the real identity of the netizen, it can never demonstrate the true identity of the person guilty of fabricating false information.
Chapter 3 Solution Systems
This time the purpose behind Chinese governments’ crackdown on online rumors is designed to awe rumormongers with the means of criminal procedure. With regard to our previous analysis, such approaches on the crackdown of online rumors are controversial as well as legally unsustainable. Indeed, where there are many cases primarily occurring online for infringing people’s basic rights, such as the reputation or privacy of the individual, even if the Chinese government is very powerful, they don’t have the manpower or ability to solve such a high number of cases. The effective approach to curb online rumors is that, undoubtedly, the parties hurt by online rumors use self-remedies to safeguard their rights by means of filing civil or criminal lawsuits against the infringers.
In the author’s opinion, the Chinese government has a well-developed supervision system for websites, and is capable of ascertaining the real identity of most of those who publish information on the Internet. It would be beneficial for the government to make conditional use of such systems available to the public, and establish a similarly well-developed query system whereby those aggrieved can ascertain the true identity of those that fabricate false rumors and information, thus thereby greatly curbing the effects of infringing acts against privacy, including online rumors.
Taking online libel as an example, under the current system, because the victims cannot self-guard their rights due to not knowing the true identity of netizens, in our opinion, the Law of Punishment for Public Security and Administration can be utilized to consider anonymous libel as a public security case. The victims may report and provide preliminary evidence of the crime, such as a identity certificate and the address of the infringing website to the police. After an investigation into a case of public security is concluded and the real identity of net speakers is known, the police can carry out an administrative punishment. Within the written decision of administrative punishment, the victims can use it as evidence of infringement to file a civil or criminal lawsuit.
The above system is a rough blueprint describing our ideas in implementing such a system. Specific implementation shall refer to relevant laws and regulations issued by the government so as to clarify the scope and conditions of the application of the system, the establishment of the query system, as well as the prevention of abuse of relevant information.
Lawyer Contacts
You Yunting：86-21-52134918 youyunting@debund.com/yytbest@gmail.com
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