(By You Yunting) Recently, the Supreme People’s Court and the Supreme People’s Procuratorate jointly issued the Interpretations on Some Issues Concerning the Application of Laws for in the Handling of Defamation via Information Networks and Other Criminal Cases (hereinafter the “Judicial Interpretation”).
Upon reading the whole text of the Judicial Interpretation, in the author’s opinion, this Judicial Interpretation has a bad negative impact upon the rule of law and freedom of speech rather than the positive value of cracking down on web rumors and purifying the environment of internet, because of considering that this Judicial Interpretation attempts to use the idea of “governing the country with severe law during the trouble times” to solve the web rumors so that current crackdown against web rumors is too hard and the legislative proceedings of this Judicial Interpretation are defective .
II. The Problem in Violation of the Principle of Legality
Article 3 of the Criminal Law rules the principle of legality that whoever commits an act that is expressly provided in the law as a criminal act shall be condemned legally. No penalty may be inflicted for an act that was not expressly provided in the law as a criminal act at the time it was committed. This Judicial Interpretation, however, rules many provisions of “others” without detail meaning. For example, Article 2 rules: whoever commits any of the following acts of defaming another person via information networks shall be satisfied with the “serious circumstance” of Article 246 Paragraph 1 as regulated in the Criminal Law:..(4) Other serious circumstances.
Taking Article 3 Item 7 for another example, Article 3 rules: whoever commits any of following acts of defaming another person via information networks shall be satisfied with the “serious harm to the public order and the interests of the State” of Article 246 Paragraph 2 as regulated in the Criminal Law:.. (7) Other circumstances that serious harm the public order or the interests of the State.
Due to provisions without detailed standards, the power of interpretation actually shall be invested in the government. Those aforesaid provisions increased the certainties of laws and regulations, thus a huge harm to the publicly and clearly values in the laws. Concerning this Judicial Interpretation is actually involved the problem of the border of freedom of expression, such uncertainties caused big harm to the freedom of expression. Because our current laws and regulations had yet provided a legal proceeding to apply for revocation of this Judicial Interpretation that violates laws, currently there are no legal remedies upon the first and second involved problems.
III. The Problem for the Irrational Rules of Detail Contents
This Judicial Interpretation is issued to accompany with the governmental acts of cracking down on web rumors; therefore, many provisions are made without careful thinking. For example, Article 5 of the preceding paragraphs rules “abusing, intimidating another person or fabricating false information via information networks may be convicted as the crime of creating disturbance”, but the Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues Concerning Application of Law for Criminal Cases of Picking Quarrels and Provoking Troubles published in July 2013 had never such provision of “publishing speeches on the information networks shall be convicted as the crime of picking quarrels and provoking troubles”. Meanwhile, the above acts are regulated by the Criminal Law, specifically including the crime of defamation, the crime of extortion by blackmail, the crime of damaging another person’s business credit or commodities reputation, the crime of fabricating or deliberately spreading false terrorist information. Such acts inconstant in laws are no doubt ridiculously challenging the seriousness of law.
Article 2 of this Judicial Interpretation rules: where someone defames another person via information networks and the same defaming message is being clicked, viewed over 5000 times, or retransmitted over 500 times, he shall be convicted as the “serious circumstance” of Article 246 Paragraph 1 in the Criminal Law. These standards for the number of retransmission and views in preceding provision are obviously too low. On Sina Weibo, any message, if it retransmitted by a blogger with more than 50000 fans, the number of view shall be over 5000 times, and at the same time, a message that is retransmitted more than 100 times would be viewed over 5000 times. With regard to above two questions, the starting point of crimes is considered too low, causing that large number of acts not committing as crimes would be punished by the Criminal Law and many netizens dare not publish speeches on the internet by virtue of afraid of punishment. The number of retransmission seems disproportionate at the number of views, thus decreasing the seriousness and science of law.
IV. The Problem against Illegal Deleting the Messages against individuals while not against the Officers
Currently, many instructions of deleting the network messages are originated from the government and among them there are many situations such as personal using of public powers and even rent seeking. Abusing public powers for deleting messages is more severe than that of the individual or internet companies’ employees, but this Judicial Interpretation makes many provisions to cracking down on individual’s deleting messages. As for the more severe deleting messages by public powers, the Judicial Interpretation pretends a blind eye on it and seldom makes provisions.
Finally, considering that the purpose of issuing this Judicial Interpretation by the Supreme Court and Supreme Procuratorate is to crack down on web rumors, although the punishments by those provisions are a bit unreasonable, the Judicial Interpretation will be taken effect in short time on cracking down web rumors. Due to its violation of the Legislative Law and the Criminal Law which aimed to explain, on the long run, its destructive functions on socialism rule of law would be far greater than the value of halting rumors in short time.
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You Yunting:86-21-52134918 youyunting@debund.com/yytbest@gmail.com
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