He Suhuang and Yang Ke disseminated obscene materials for profit
1. Basic facts of the case
Defendant He Suhuang, male, born on April 19, 1975, high Chinese, unemployed, living in Zhengzhou City, Henan Province. He was arrested on 18 January 2000 on suspicion of disseminating obscene material for profit.
Defendant Yang Ke, male, born on November 4, 1976, high Chinese, unemployed.
He was arrested on 18 January 2000 on suspicion of disseminating obscene material for profit. The People's Procuratorate of Liangyuan District, Shangqiu City, Henan Province, filed a public prosecution with the Liangyuan District People's Court of Shangqiu City on the grounds that defendants He Suhuang and Yang Ke were guilty of disseminating obscene materials for profit. The indictment alleges: Between July and November 1999, defendants He Suhuang and Yang Ke jointly used the free homepage space they applied for on the Internet to set up six pornographic websites, including "Cool Beauty International Paradise", "Cool Beauty", and "Liuku Quanshu", on servers in Shangqiu, Wuhan, Anyang, and other information ports, as well as abroad, and more than 7,200 pornographic pictures, 94 obscene novels, and two obscene short films, and used the above-mentioned pornographic websites to advertise foreign companies. The acts of the two defendants violated the provisions of Article 363, Paragraph 1 and Article 25 of the Criminal Law of the People's Republic of China, constituting the crime of disseminating pornographic materials for profit, which is a joint crime and the circumstances are serious.
Defendants He Suhuang and Yang Ke argued that there were no more than 7,200 obscene pictures. Their defenders argued that the criminal law does not explicitly provide for the conviction of using the Internet to disseminate pornographic materials, and should not be dealt with under the criminal law; The two defendants had no obvious purpose of making profits; It was found that more than 7,200 obscene pictures were inconsistent with the facts; The two defendants have a good attitude in admitting guilt and should be given a lighter punishment.
The Liangyuan District People's Court of Shangqiu City ascertained through closed trial:
Between July and November 1999, defendant He Suhuang used the free Internet homepage space provided by defendant Yang Ke and applied for him to establish four pornographic websites: "Cool Beauty International Paradise" in Shangqiu Information Port, "Cool Beauty" in Wuhan, "Erotic Art Gallery" in Tsing Yijiang, Sichuan, and "Liuku Quanshu" in Anyang Information Port. Defendant Yang Ke set up two pornographic websites, "Pornographic Photo Library" and "Global Pornography Engine", on servers in Shangqiu Information Port and abroad. The two defendants published more than 7,200 pornographic pictures, 94 obscene novels, and two obscene short movies on the above-mentioned websites, and jointly repaired and updated the above-mentioned websites. In order to obtain illegal benefits, the two defendants used the above-mentioned pornographic websites to advertise foreign companies, and received remittances of US$519.28 (unpaid).
The Liangyuan District People's Court of Shangqiu City held that the defendants He Suhuang and Yang Ke disseminated pornographic materials on the Internet for the purpose of making profits, and the circumstances were serious, and their conduct constituted the crime of disseminating pornographic materials for profit. The prosecution was convicted of the charges. In view of the fact that the two defendants have a good attitude in admitting guilt and have indeed shown remorse, they can be given a lighter punishment. In accordance with the provisions of article 363, paragraph 1, article 25, article 72 and article 64 of the Criminal Law of the People's Republic of China, the following judgment was rendered on 4 September 2000:
1. Defendant He Suhuang committed the crime of disseminating obscene materials for profit, and was sentenced to three years imprisonment, suspended for four years, and fined 10,000 yuan; Defendant Yang Ke was sentenced to three years imprisonment, suspended for four years, and fined 10,000 yuan.
2. Unlawful gains of US$519 and 2 dimes and 8 cents are to be recovered, and two computers, 50 floppy disks, and one hard disk, which are used as tools for the crime, are to be confiscated.
After the verdict was announced, the two defendants did not appeal, the procuratorate did not raise a counter-appeal, and the judgment took legal effect.
Second, the main issues
1. Can the act of publishing obscene pictures, novels, or movies on the Internet be recognized as the dissemination of pornographic materials?
2. Can the act of publishing pornographic materials on the Internet to attract netizens, increase the number of visitors, and earn advertising revenue be recognized as profit-making?
3. How to determine territorial jurisdiction for criminal acts committed through the use of the Internet?
III. Grounds for the Trial
(1) Publishing pornographic pictures, novels, or movies on the internet is the dissemination of pornographic materials
According to the first paragraph of Criminal Law article 367: "Pornographic materials refer to books, periodicals, films, videotapes, audio tapes, pictures, and other obscene materials that specifically depict sexual acts or explicitly promote pornography." In order to maintain public order, strengthen the building of socialist spiritual civilization, and resist the corrosive influence of decadent bourgeois ideas, the Criminal Law has set up corresponding crimes to punish criminals who smuggle, produce, sell, and disseminate obscene books, periodicals, films, video tapes, audio tapes, pictures, or other obscene materials. Among them, "disseminating" pornographic materials refers to the act of widely disseminating or circulating in society in a public or semi-public manner. The dissemination of pornographic materials in the traditional sense is generally in the form of broadcasting, screening, rental, lending, transportation, mailing, etc. With the development of computer technology and the application of network technology, and the emergence of crimes using network systems as tools, the dissemination of pornographic materials has also taken on new characteristics: Some lawbreakers, for various purposes, have set up pornographic websites and web pages on the Internet, provided links to pornographic sites, provided pornographic information, intermediary services in the pornographic industry, published pornographic advertisements, or published pornographic novels, books, periodicals, films, audio-visual products, pictures, and so on on the Internet. In order to punish criminal acts committed through the use of the Internet, the Standing Committee of the National People's Congress adopted the Decision on Safeguarding Internet Security (hereinafter referred to as the "Decision") on 28 December 2000, Article 4 (5) of which clearly stipulates that "anyone who establishes an obscene website or webpage on the Internet, provides services linking to obscene websites, or disseminates obscene books, periodicals, films, audio-visual recordings, or pictures" shall be investigated for criminal responsibility in accordance with the relevant provisions of the Criminal Law. However, the "Decision" only clarifies which acts on the Internet are illegal and criminal acts, and if they are committed, they will bear criminal responsibility, receive administrative punishment or bear civil liability, and do not stipulate specific penalties.
In this case, the key to characterizing He Suhuang and Yang Ke's acts of publishing obscene pictures, novels, and movies on the Internet lies in identifying and understanding the entire process of the formation of obscene content on pornographic websites. Judging from the facts of the crime ascertained through trial, He Suhuang and Yang Ke used the free personal space of network service providers on the Internet to set up pornographic websites and carry out criminal acts related to obscene materials. Among them, "network service providers" (ISPs) refer to operators that use their own network technology and hardware facilities to provide information dissemination intermediary services for various open networks (mainly referring to the Internet). There are many types of network service providers, but they can be broadly summarized as online information operators and Internet service providers. Online information operators include professional websites and comprehensive websites, which respectively provide services or information on commodities and special transactions. Internet service providers refer to operators that provide users with connection services such as telephone lines to access the Internet. The website provides free personal space to network users with server space, and its function is to provide network users with a channel to transmit or receive information in a timely manner. Under the service mode of providing personal cyberspace such as personal majors and online forums, the network service provider only provides a network space for its own users, and the users upload information and make remarks on their own, and the network service provider does not provide information for them, nor does it edit and filter the information uploaded by users. Therefore, pornographic content on pornographic websites must be created or copied by Internet users before it can be published. As for the original source of pornographic materials, it may be produced by the Internet users themselves, such as writing their own pornographic novels, or they may be downloaded, cut and pasted, edited, processed, copied and so on from other pornographic websites. The defendants in this case, He Suhuang and Yang Ke, used the free homepage space they applied for on the Internet to set up six pornographic websites on information ports such as Shangqiu, Wuhan, and Anyang, as well as on foreign servers, and published more than 7,200 obscene pictures, 94 novels, and two short films, so that a large number of Internet users could access them, which was in essence an act of disseminating pornographic materials in the sense of the Criminal Law.
(2) Publication of pornographic materials on the internet for the purpose of earning advertising revenue, shall be found to be the dissemination of pornographic materials "for the purpose of making profits".
Where the dissemination of pornographic materials constitutes a crime, it may simultaneously violate the provisions of paragraph 1 of article 363 and paragraph 1 of article 364 of the Criminal Law, constituting the crime of disseminating pornographic materials for profit and the crime of disseminating pornographic materials, respectively. The objects of the two crimes are the state's management order of the cultural market and good social morality, which are objectively manifested in the dissemination of obscene materials, and both are intentional crimes. However, to constitute the crime of disseminating pornographic materials for profit, the perpetrator must have a profit-making purpose, and where there is no profit-making purpose, it does not constitute the crime of disseminating pornographic materials for profit. Article 8, paragraph 1, item (3) of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Illegal Publications" stipulates the minimum standard for constituting the crime of disseminating pornographic materials for profit, that is, for the purpose of making profits, "disseminating pornographic materials to others for 200 to 500 or more people, or organizing the broadcast of obscene films or images for 10 to 20 or more times", regardless of the amount of profit, whether or not it actually makes profits, shall be convicted and punished as the crime of disseminating pornographic materials for profit; or the number of people or sessions disseminated does not meet this condition, but the perpetrator illegally makes a profit of 5,000 to 10,000 yuan or more through the dissemination of pornographic materials, it shall also be convicted and punished as the crime of disseminating pornographic materials for profit. According to article 10 of the "Supreme People's Court Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Illegal Publications", "Whoever disseminates obscene books, periodicals, films, audio-visual recordings, pictures, and other publications to others for 300 to 600 or more person-times, or causes a vile social impact, is considered to be 'serious circumstances' and is convicted and punished as the crime of disseminating pornographic materials."
The key to the characterization of this case lies in whether the advertising revenue earned by the defendants He Suhuang and Yang Ke can be determined to be profit-making. Judging from the development status of the Internet in mainland China, users generally do not pay fees for accessing websites and web pages, and the main income of website and web page operators comes from advertising fees paid by domestic and foreign companies, and the amount of advertising and the level of advertising costs depend on the number of visits to the website and web pages by users. Therefore, in order to obtain advertising revenue, some website and web page operators use various methods to attract users and increase the number of visitors, so as to earn advertising revenue. In other words, the advertising revenue of website and web page operators is actually the profit obtained from their operations. Defendants He Suhuang and Yang Ke's conduct of publishing pornographic materials on the internet for the purpose of obtaining advertising revenue, attracting netizens and increasing the number of visitors, shall be found to be disseminating pornographic materials for the purpose of making profits. Based on the specific circumstances of this case, the Liangyuan District People's Court of Shangqiu City, Henan Province, sentenced the defendant He Suhuang to three years imprisonment, suspended for four years, and a fine of 10,000 yuan for the crime of disseminating obscene materials for profit; It is appropriate to sentence defendant Yang Ke to three years' imprisonment, suspended for four years, and a fine of 10,000 yuan.
(3) Determination of territorial jurisdiction for the use of the internet to commit crimes
"Territorial jurisdiction" refers to the division of labor between people's courts at the same level in the adjudication of first-instance criminal cases. Article 24 of the Criminal Procedure Law stipulates: "Criminal cases shall be under the jurisdiction of the people's court at the place where the crime was committed. If it is more appropriate for the people's court for the defendant's place of residence to try the case, the people's court for the defendant's place of residence may have jurisdiction. That is to say, the territorial jurisdiction of criminal cases on the mainland is based on the principle that the jurisdiction of the people's court at the place where the crime was committed is the mainstay, supplemented by the jurisdiction of the people's court at the place where the defendant resides. The so-called "place of crime" refers to all places directly related to the crime, including the place where the crime is prepared, the place where the criminal act is committed, the place where the result of the crime occurs, the place where the stolen goods are sold, and so forth; The so-called defendant's place of residence generally refers to the defendant's place of household registration, place of residence, or place of work and study at the time of indictment.
In principle, the territorial jurisdiction over the use of computers to commit crimes shall also follow the provisions of the above-mentioned Criminal Procedure Law. However, in view of the nature of computer-based crimes, the determination of territorial jurisdiction should also be treated differently. In this case, He Suhuang and Yang Ke used the free homepage space of the network service provider on the Internet to set up pornographic websites and publish pornographic materials, among which the location of the website of the network service provider, the location of the website where the pornographic materials were downloaded, and the location where the perpetrator operated the computer could all be regarded as the place where the crime was committed, and in principle, the people's courts in these areas have jurisdiction. However, due to the multiplicity and uncertainty of the location of the website of the network service provider, the location of the website where the obscene material is downloaded, and the location of the Internet user (even in foreign countries), it is inevitable that many courts can have jurisdiction or no court jurisdiction (for foreign websites). Therefore, from the perspective of facilitating the collection of evidence and trial, it is more appropriate for the people's court in the place where the perpetrator operates the computer to have jurisdiction. In this case, He Suhuang and Yang Ke used the free homepage space of the Internet at their home in Zhengzhou to link to some domestic websites and foreign servers to set up pornographic websites, so it is appropriate for this case to be under the jurisdiction of the people's court of the place where He Suhuang and Yang Ke lived, that is, the place where they operated the computers.