In recent years, a number of cyberbullying cases have attracted attention. In April this year, netizen "Fat Cat" committed suicide by throwing himself into the river due to emotional problems, and a large number of doxing, rumors, and abuse against his girlfriend Tan immediately appeared on the Internet; In February, a netizen in Jiangsu Province spliced a downloaded photo of a woman's life with a photo of a female teacher involved in a hot incident, and posted it online with inappropriate remarks, causing the female teacher to suffer cyberbullying. Previously, Liu Xuezhou, a "teenager looking for relatives", and Zheng Linghua, a "pink-haired girl", also committed suicide because they couldn't bear online violence.
As of December 2023, there are 1.092 billion Internet users in mainland China, with an internet penetration rate of 77.5%. During the two sessions of the National People's Congress in 2024, the "Work Report of the Supreme People's Court" shows that in the past year, 32 online defamation prosecution cases have been concluded in response to online violence "pressing a button to hurt people" and "pressing a button to kill", and the number of guilty people has been convicted, an increase of 10.3% and 102.4% year-on-year respectively.
Against the backdrop of the increasing number of cyberviolence-related cases and the public's increased awareness of anti-cyberviolence, the Cyberspace Administration of China, the Ministry of Public Security, the Ministry of Culture and Tourism, and the State Administration of Radio and Television jointly issued the "Provisions on the Governance of Information on Online Violence" (hereinafter referred to as the "Provisions"), which will come into force on August 1, 2024.
Liu Yanhong, dean of the School of Criminal Justice at China University of Political Science and Law, said in an interview with China News Weekly that the "Provisions" are the first special anti-cyber violence legislation published in the form of departmental rules in mainland China, laying an important foundation for the continuous construction of an information governance system for online violence.
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Clarify the responsibilities of the platform
On June 13, the Beijing Internet Court concluded a first-instance trial of a cyberbullying case involving minors. In this case, a minor was found to be a pornographic rumor on the Internet, and the court held the platform liable.
The facts of the case show that A, B, and C are all minors, and the three are classmates. A and B have a conflict over trivial matters. B entrusted C to produce a video through a social software operated by the defendant's technology company, which contained information such as A's portrait and name, and contained content such as pornographic rumors, and the video had more than 30,000 views in one day. Because B and C are minors, with the consent of A and his guardian, the public security organs did not handle the case as an administrative or criminal case.
The court pronounced a judgment in court and ordered the above-mentioned technology company to compensate plaintiff A for moral damages and reasonable expenses.
A number of interviewees said that in the above cases, online platforms have an unshirkable responsibility in cyberviolence cases. Liu Yanhong said that the production, reproduction, publication, and dissemination of online violence information all rely on the services and accounts provided by online platforms. One of the highlights of the "Provisions" is that it further consolidates the main responsibility of network information service providers, and builds a full-chain closed-loop governance mechanism covering pre-event monitoring and early warning, in-process intervention and disposal, and post-event accountability and punishment.
However, Zhi Zhenfeng, a researcher at the Institute of Law of the Chinese Academy of Social Sciences and legal adviser to the Cyberspace Administration of China, said in an interview with the media that it is difficult to implement the requirements of the "Provisions" for platforms to establish and improve the early warning model of online violence information and timely discover and warn of the risk of online violence information. The most important thing for online violence is to give early warning, because once it happens, the consequences will be irreversible. However, the situation and subject involved are more complex, and there are technical difficulties, and the next step should be to further improve the corresponding national standards, encourage network platforms to improve technical standards, provide further guidance for the monitoring system model, and let the "Provisions" be further implemented.
In addition, the "Provisions" also clarify the responsibilities of multiple parties. In addition to the requirements for platforms, it also clearly requires that public account producer-operators shall establish and complete mechanisms for reviewing the security of information content throughout the entire process such as publishing and promotion, interactive comments, etc., and where it is discovered that there is information on online violence in links such as account post comments, they shall promptly employ measures such as reporting and disposing of it; The founders and managers of online forum communities and online groups are required to perform management responsibilities, and where it is discovered that users have produced, reproduced, published, or transmitted information on online violence, management measures such as restricting speech and removing them from the group shall be employed in accordance with laws and agreements.
Zhou Zhaocheng, a lawyer who represented Liu Xuezhou in the case of cyberbullying, said that cyberbullying is like an invisible knife and is extremely harmful. When representing Liu Xuezhou, he and his team extracted more than 2,000 cyberbullying remarks against Liu on the Internet, which were shocking. Even when he was representing the case, he himself was cyberbullied.
Left and middle: On December 14, 2020, the People's Court of Yuhang District, Hangzhou City, accepted the defamation case of Ms. Gu against Lang and He Moumou, the parties to the "Hangzhou Woman Picking Up Express Delivery Case".
Zhou Zhaocheng told China News Weekly that online violence has the characteristics of mass infringement, which makes it difficult to crack down. First, among the many participants, it is difficult to define the primary and secondary responsible persons, and it is difficult to clarify the specific degree of fault and the size of each person's responsibility. Secondly, the anonymity and dispersion of the group make it complicated to trace and investigate and collect evidence, and it may be difficult for some participants to be accurately identified and held accountable. In addition, group behavior is easily influenced by emotions and public opinion, and it is difficult to accurately judge the subjective malice and illegal intention of each individual.
He believes that this kind of "law does not blame the public" mentality also makes some people more unscrupulous when participating in cyberviolence. The multi-party entity responsibilities specified in the Provisions can alleviate this difficulty to a certain extent, so that all parties can participate in the governance of online violence information. This helps to form an all-encompassing governance pattern and avoid blame-shifting.
However, he also suggested that the criteria for determining liability should be further refined in the future. For the division of responsibilities of multiple parties, more detailed and clear standards are needed to avoid disputes and ambiguities in practice.
For the first time, cyberbullying is clearly defined
The Provisions clearly define online violence, which is considered by many respondents to be a highlight of the Provisions.
According to the Provisions, "online violence information" refers to illegal and negative information that is published on individuals in the form of texts, images, audio, video, etc., and contains insults, abuse, rumors, slander, incitement of hatred, coercion and coercion, invasion of privacy, as well as accusations and ridicule, derogatory discrimination, and other content that seriously affects physical and mental health.
Zheng Jingjing, a lawyer who represented a woman in Hangzhou who was derailed by rumors about picking up a courier, told China News Weekly that for a long time, as a word, cyberviolence has long been widely known, but the specific concept is not clear.
In addition to this, there are several highlights that are being noticed.
Liu Yanhong believes that online violence information seriously harms the physical and mental health of the parties, and even in extreme cases, may lead to extremely serious harmful consequences such as self-harm and suicide of the parties, as well as adverse social impacts. The special chapter on "Protection Mechanism" set up by the "Provisions" is a highlight.
In this special chapter, the focus is on strengthening the protection of the legitimate rights and interests of users who have been harmed by online violent information, especially special groups such as minors, the elderly, and the disabled. Prioritize handling complaints and reports of information related to minors' online violence, set up functions and channels to facilitate minors and their guardians' exercise of their right to notify the deletion of information on online violence, and promptly employ necessary measures such as deleting, blocking, or disconnecting links, to prevent the spread of information.
Liu Yanhong, Zhou Zhaocheng and many other interviewees believe that the above provisions reflect the care for victims of online violence information, especially the vulnerable groups in this group, and demonstrate the humanistic care and fairness of the law.
In terms of punishment measures, the "Provisions" also mentions that those who violate these provisions shall be punished in accordance with the provisions of laws and administrative regulations such as the Cybersecurity Law, the Personal Information Protection Law, the Public Security Administration Punishment Law, and the Measures for the Administration of Internet Information Services. Where laws or administrative regulations have no provisions, the relevant departments such as for internet information, public security, culture and tourism, and radio and television are to give warnings, circulate criticism, and order corrections to be made within a set period of time, and may give a concurrent fine of between 10,000 and 100,000 RMB; where it involves endangering citizens' lives, health, and safety and there are serious consequences, a concurrent fine of between 100,000 and 200,000 RMB is to be given. Organizations and individuals that organize or incite the production, reproduction, publication, or dissemination of information on online violence, or use online violence incidents to carry out malicious marketing hype, shall be given heavier punishments in accordance with law.
Zheng Jingjing believes that laws and regulations such as the Public Security Administration Punishment Law have relevant penalties for some cyberviolence, but they fail to cover all the content mentioned in the "Provisions", which is supplemented by the "Provisions".
Zhou Zhaocheng said that the relevant punishment measures in the "Provisions" can, to a certain extent, increase the criminal cost of online violent perpetrators. Clarity on fines and aggravated penalties for serious consequences can act as a deterrent to potential perpetrators. In particular, heavier penalties are imposed on acts such as organizing, instigating, and using online violence to carry out malicious marketing and hype, which increases the cost of violating the law and reduces the impulse to violate the law.
"The complexity and diversity of online violence may make it challenging to eradicate it completely, but these measures are certainly an important step in the right direction." Zhou Zhaocheng said.
It is worth noting that the "Provisions" also mention that these Provisions do not apply to those who report or expose others' violations and crimes through the Internet in accordance with the law, or carry out public opinion supervision in accordance with the law.
Professor Wang Sixin of Communication University of China has long been concerned about policy and legal issues in the field of Internet governance, and has participated in the legislative argumentation and interpretation of laws and regulations, departmental rules and a large number of normative documents related to Internet governance, including the Cybersecurity Law and the Provisions on the Governance of the Online Information Content Ecosystem.
Wang Sixin told China Newsweek that the rules were to prevent abuse of the new rules. Some netizens report through the Internet, which is conducive to the relevant departments to crack down on illegal and criminal activities. Therefore, when dealing with cyberviolence, public authorities should not exert force at will, and relevant departments should also pay attention to clues about online reporting, and clarify the difference between online violence and normal reporting.
On April 30, 2021, the People's Court of Yuhang District, Hangzhou City, held an open court in accordance with the law to hear the defamation case of defendants Lang XX and He XX. The court pronounced the verdict in court and sentenced defendants Lang XX and He XX to one year imprisonment with a two-year suspended sentence for defamation.
More efforts are still needed
In recent years, in order to punish illegal and criminal activities of online violence, the mainland has continuously improved its system at the institutional level. For example, in November 2022, the Cyberspace Administration of China (CAC) issued the Notice on Effectively Strengthening the Governance of Online Violence, and in September 2023, the Supreme People's Court and the Supreme People's Court jointly issued the Guiding Opinions on Punishing Violations and Crimes of Online Violence in Accordance with Law.
However, Zheng Jingjing told China News Weekly that although the institutional level is constantly improving, it will still encounter resistance when it is implemented.
She once went to the police station to file a case because of some suspected online defamation cases, and some police officers believed that compared with cases of intentional injury and theft, the damage caused to the parties in such cases was relatively minor, and the mental damage was difficult to define, so they were reluctant to file a case.
"In fact, in civil litigation, regardless of whether or not the party has caused mental harm such as depression, as long as the defamation clearly leads to the reduction of the social evaluation of others, the harmful consequences of the infringement of the right of reputation can basically be determined." Zheng Jingjing said.
In the process of acting as her agent in related cases, most of them were very cooperative when they went to some platforms to obtain information about cyberbullies, but at present, the user registration of the platform implements an "indirect real-name" system, and most of the platforms can only provide registration information such as mobile phone numbers. However, the actual owner of the mobile phone number is sometimes not the same as the cyberbully, so when the lawyer retrieves the identity card number and other information of the cyberbully, he also needs more cooperation from the operator, public security and other departments.
Liu Yanhong also pointed out that the current legal provisions on the governance of online violence in mainland China are scattered and lack coordination and cooperation, and there are institutional omissions in terms of rights and responsibilities, sanctions, and remedies, which cannot effectively respond to the governance needs of online violence. Actively promoting the transformation of the rule of law and the construction of a legislative system for the governance of online violence is the key to alleviating the dilemma of the governance of online violence in the mainland.
She believes that the "Provisions" are departmental rules in nature, and their rank is relatively low, which cannot stipulate the civil and criminal issues involved in the governance of online violence, and it is difficult to unify the scattered provisions in the relevant departmental laws. Therefore, the key work in the next stage of the transformation of the rule of law in the governance of online violence is to promote the formulation of the "Anti-Cyberviolence Law", a field law by the Standing Committee of the National People's Congress that specifically regulates online violence, build a basic legal framework for the governance of online violence, and improve the supporting laws and regulations for the governance of online violence.
In recent years, Zhou Zhaocheng has repeatedly called on the mainland to introduce a comprehensive and systematic "Anti-Cyber Violence Law". However, there are different views in the legal community on whether such a law is necessary at this stage.
Wang Sixin bluntly said that the existing laws and regulations have relatively improved the punishment of online violence and the remedial measures for victims. In his view, it is not appropriate to use the legislative process to formulate special laws at this stage, "To solve the problem of cyberviolence through legislation is to simplify the complex social problem of cyberviolence." Cyberviolence involves the intricate communication mechanism and content ecology of the Internet, whether our law enforcement efforts and law enforcement forces can keep up, and at the same time reflects the emotional changes of people in the real society, which cannot be solved through legislation."
Zheng Jingjing also believes that legislation needs to be cautious, to avoid excessive legislation, and the necessity of formulating the "Anti-Cyber Violence Law" needs to be further demonstrated.
As Wang Sixin said, cyberviolence management is a comprehensive and systematic project. The effect of the implementation of the "Regulations" also depends on the degree of attention and cooperation of various departments after the implementation, as well as the degree of fulfillment of platform responsibilities.
Published in the 1146th issue of China News Weekly magazine on July 1, 2024
Magazine title: Laws and regulations to punish online violence are getting stricter again
Reporter: Zhou Qunfeng