Guiding Opinions on Punishing Illegal Crimes of Cyber Violence in accordance with the Law

Supreme People's Court Supreme People's Procuratorate Ministry of Public Security

Notice on Issuing the Guiding Opinions on Punishing Cyber Violent Crimes in accordance with the Law

The higher people's courts, people's procuratorates, and public security departments (bureaus) of all provinces, autonomous regions, and municipalities directly under the Central Government, the military courts and military procuratorates of the People's Liberation Army, the Production and Construction Corps Branch of the Higher People's Court of Xinjiang Uygur Autonomous Region, the People's Procuratorate and the Public Security Bureau of the Xinjiang Production and Construction Corps:

The Guiding Opinions on Punishing Illegal Crimes of Cyber Violence in accordance with the Law are hereby issued for conscientious implementation. Please report to the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security on major problems encountered in the implementation.

Supreme People's Court Supreme People's Procuratorate Ministry of Public Security

20 September 2023

Guiding Opinions on Punishing Illegal Crimes of Cyber Violence in accordance with the Law

In order to punish illegal and criminal activities of cyber violence in accordance with the law, and effectively safeguard citizens' personality rights and network order, in accordance with the Criminal Law, Criminal Procedure Law, Civil Code, Civil Procedure Law, Personal Information Protection Law, Public Security Administration Punishment Law and the Supreme People's Court and Supreme People's Procuratorate The Interpretation of Several Issues Concerning the Application of Laws in Handling Criminal Cases Using Information Networks for Defamation and Other Criminal Cases "and other laws and judicial interpretations, combined with law and judicial practice, formulate this opinion.

1. fully understand the social harm of network violence, safeguard the rights and interests of citizens and network order according to law

1. Cyber violence that wantonly publishes abuse, insults, rumors, slander, invasion of privacy and other information against individuals on the information network, derogates the personality of others, damages the reputation of others, and some cause serious consequences such as "social death" or even mental disorder and suicide of others; disrupt the network order, destroy the network ecology, cause hostility in cyberspace, and seriously affect the sense of security of the public. Different from traditional crimes, cyber violence is often carried out against strangers who have never known each other. Victims have practical difficulties in identifying infringers and collecting evidence, and the cost of rights protection is extremely high. The people's courts, people's procuratorates, and public security organs must fully understand the social harm of cyber violence, adhere to the position of severe punishment, perform their duties in accordance with the law, provide effective legal remedies for victims, safeguard the legitimate rights and interests of citizens, safeguard the public's sense of security, and maintain network order.

2. and accurate application of the law, in accordance with the law to severely punish the network of violent crimes

2. Punishment of online defamation in accordance with the law. Whoever creates or spreads rumors on the information network, belittles the personality of others, or damages the reputation of others, if the circumstances are serious and comply with the provisions of Article 246 of the Criminal Law, shall be convicted and punished for the crime of libel.

3. Punishing network insults according to law. Those who openly insult others by means of wanton abuse, malicious slander and disclosure of privacy on the information network, if the circumstances are serious and in line with the provisions of Article 246 of the Criminal Law, shall be convicted and punished for the crime of insult.

4. Punishing acts of infringing upon citizens' personal information in accordance with the law. Organize "human flesh search", illegally collect and release citizens' personal information to an unspecified majority, if the circumstances are serious and conform to the provisions of Article 253 of the Criminal Law, they shall be convicted and punished for the crime of infringing upon citizens' personal information; in accordance with the provisions of the Criminal Law and judicial interpretation, those who constitute other crimes at the same time shall be convicted and punished in accordance with the provisions of heavier punishment.

5. Punishment of malicious marketing hype by means of cyber violence in accordance with the law. For the purpose of speculation, promotion and drainage, the use of Internet users' public accounts, etc. to push and disseminate information about cyber violence crimes, which complies with the provisions of Article 287 of the Criminal Law, shall be convicted and punished for the crime of illegal use of information networks; In accordance with the provisions of the Criminal Law and judicial interpretations, if other crimes are also constituted, they shall be convicted and punished in accordance with the provisions of heavier penalties.

6. Punishing acts of refusing to perform information network security management obligations in accordance with the law. If the network service provider fails to fulfill the obligation of information network security management according to law, and refuses to make corrections after being ordered by the regulatory department to take corrective measures, resulting in a large number of illegal information spreading or other serious circumstances, which conforms to the provisions of Article 286 of the criminal law, the network service provider shall be convicted and punished for the crime of refusing to perform the obligation of information network security management; In accordance with the provisions of the criminal law and judicial interpretation, conviction and punishment in accordance with the provisions of the heavier punishment.

7. Punishing illegal acts of cyber violence in accordance with the law. If the implementation of online insults, slander and other online violence does not constitute a crime and complies with the provisions of the Public Security Administration Punishment Law, administrative penalties shall be imposed in accordance with the law.

8. Severely punish illegal crimes of cyber violence in accordance with the law. The spirit of strict punishment should be reflected in the spirit of network violence and crime, so that the people can fully feel fairness and justice. Adhere to strict law enforcement and justice, for cyber violence crimes, serious investigation in accordance with the law, and effectively correct the wrong tendency of "the law does not blame the public. Emphasis should be placed on cracking down on malicious initiators, organizers, malicious promoters and those who do not change their ways. Those who commit crimes of cyber violence under any of the following circumstances shall be given a heavier punishment according to law:

(1) for minors, persons with disabilities;

(2) Organizing "water army", "thugs" or other personnel to carry out;

(3) fabricating "sex-related" topics that infringe on the human dignity of others;

(4) the use of "deep synthesis" and other generative artificial intelligence technology to release illegal information;

(5) Initiated and organized by the network service provider.

9. Support civil rights protection in accordance with the law. If the victim requests the perpetrator to bear civil liability for acts of cyber violence against others, infringing upon other people's right of reputation, privacy and other personality rights, the people's court shall support it in accordance with the law.

10. Accurately grasp the criteria for determining illegal and criminal acts. To report or expose other people's crimes or violations of law and discipline through information networks, as long as they are not deliberately fabricated facts or knowingly disseminated facts, they should not be regarded as defamation crimes. Comments and criticisms on the words and deeds of others, even if the views are biased and the remarks are extreme, as long as they are not wantonly abuse or malicious slander, they should not be regarded as insults and crimes.

3. smooth litigation procedures and provide effective legal remedies in a timely manner

11. Implement the legal provisions on the assistance of public security organs in obtaining evidence. According to the provisions of the third paragraph of Article 246 of the Criminal Law, if the people's court considers that it is indeed difficult for the victim to provide evidence for the victim to file a private prosecution for online insult or defamation, it may request the public security organ to provide assistance. The public security organ shall, in accordance with the requirements of the people's court and the specific circumstances of the case, promptly identify the subject of the act, and collect evidence materials such as the spread and impact of relevant insults and defamation information. Network service providers shall provide necessary technical support and assistance for public security organs to obtain evidence in accordance with the law. If the public security organ assists in obtaining evidence and meets the conditions for accepting a private prosecution case, the people's court shall decide to file a case; if it is unable to collect relevant evidence, the public security organ shall explain the situation in writing to the people's court.

12. Accurately grasp the conditions of public prosecution for the crime of insult and defamation. According to the second paragraph of Article 246 of the Criminal Law, if a crime of insult or defamation is committed and seriously endangers social order and national interests, a public prosecution shall be initiated in accordance with the law. Regarding whether online insults and slanders seriously endanger social order, it should be judged based on factors such as the object of the infringement, motive and purpose, behavior, scope of information dissemination, and harmful consequences.

Those who commit online insults or slanders under any of the following circumstances shall be deemed as "seriously endangering social order" as stipulated in the second paragraph of Article 246 of the Criminal Law ":

(1) Causing serious consequences such as mental disorder or suicide of the victim or his close relatives, and having a bad social impact;

(2) The general public is arbitrarily targeted, and relevant information is spread on the Internet on a large scale, causing a large number of vulgar and malicious comments, seriously disrupting the order of the Internet, and having a bad social impact;

(3) insulting or slandering more than one person, or repeatedly spreading insulting or slandering information, which has a bad social impact;

(4) Organizing and instructing personnel to spread insulting and defamatory information in large quantities on multiple network platforms, which has a bad social impact;

(5) Other circumstances that seriously endanger social order.

13. The public prosecution procedure for criminal cases of insult and defamation shall be applied in accordance with the law. For network insults and defamation that seriously endanger social order, the public security organs shall file a case in a timely manner in accordance with the law. If the victim files a private prosecution with the people's court at the same time, the people's court may ask the private prosecutor to withdraw the private prosecution or rule that it is not accepted; if it has already accepted the case, it shall rule to terminate the trial and transfer the relevant materials to the public security organ, and the original private prosecutor may participate in the proceedings as a victim. For online insults and defamation, the victim shall initiate a private prosecution before the public security organ files the case. If the people's court considers that the relevant act seriously endangers social order after review, the case shall be transferred to the public security organ.

For online insults and defamation, the victim or his close relatives report the case to the public security organ. If the public security organ considers that it has constituted a crime but does not meet the conditions for public prosecution, it may notify the reporter to file a private prosecution in the people's court.

14. Strengthen the supervision of filing cases. The People's Procuratorate shall, in accordance with the provisions of relevant laws and judicial interpretations, strengthen the supervision of filing cases of cyber violence crimes.

The higher-level public security organs shall strengthen the professional guidance and internal supervision of the lower-level public security organs in filing network violence cases.

15. The system of prohibition of infringement of personality rights shall be applied in accordance with the law. The obligee has evidence to prove that the perpetrator is committing or is about to commit an illegal act that infringes upon his personality rights, and failure to stop it in time will cause irreparable damage to his legitimate rights and interests. According to Article 997 of the Civil Code, if the obligee applies to the people's court to take measures to order the perpetrator to stop the relevant acts, the people's court may, in accordance with the specific circumstances of the case, make an injunction against the law.

16. File public interest litigation in accordance with the law. Where cyber violence harms the public interest, the people's procuratorate may file a public interest lawsuit with the people's court in accordance with the law.

If the network service provider fails to fulfill the obligation of information network security management according to law for the discovered network violence information, resulting in a large number of illegal information spreading or other serious circumstances, which damages the social and public interests, the people's Procuratorate may file a public interest lawsuit with the people's court according to law.

The People's Procuratorate may, in handling public interest litigation cases in the field of cyber violence governance, require network service providers to provide necessary technical support and assistance in accordance with the law.

4. implement the work requirements and promote the strengthening of comprehensive management

17. Effectively protect the rights and interests of victims. In handling cases of cyber violence, the victim and his legal representative or close relatives shall be informed in a timely manner that they have the right to entrust agents ad litem, and that they have the right to apply for legal aid in accordance with the law. In view of the fact that the spread of relevant cyber violence information is wide, the social harm is great, and the impact is difficult to eliminate, it is necessary to release case progress information to the society in a timely manner in accordance with the law, clarify the truth, and effectively eliminate adverse effects. The lenient system of confession and punishment should be applied in accordance with the law, so as to urge the defendant to plead guilty and punish, sincerely repent, and realize the effective protection of the victim's personality right through the media. For the defendant who has been sentenced to criminal punishment, an occupational prohibition or prohibition order may be issued in accordance with the law.

18. Strengthen cohesion and cooperation. The people's courts, people's procuratorates, and public security organs should strengthen communication and coordination, unify the judicial concept of law enforcement, and orderly link up the procedures of private prosecution and public prosecution, so as to ensure the smooth investigation, prosecution, and trial of cases. For major, sensitive, and complex cases, if the public security organs listen to the opinions and suggestions of the people's procuratorates, the people's procuratorates shall provide them in a timely manner to ensure that the cases are handled in a stable manner in accordance with the law. Improve the linkage mechanism between administrative law enforcement and criminal justice, strengthen coordination and cooperation, form a normalized work pattern in which all units perform their duties and efficiently interact, and effectively punish and control cyber violence crimes in accordance with the law.

19. Do a good job in the publicity of the rule of law. It is necessary to conscientiously implement the law popularization responsibility system of "who enforces the law, who popularizes the law", and give full play to the role of rule guidance, value orientation, and behavioral norms in law enforcement and case handling. Publish typical cases involving cyber violence, clearly transmit "cyberspace is not a place outside the law", educate and guide the majority of netizens to consciously abide by the law, and lead the social civilization.

20. Promote comprehensive governance of cyber violence. Based on the judicial function of law enforcement, on the basis of handling cases related to cyber violence in accordance with the law, we should do a solid governance of the source of litigation, deeply analyze the root causes of the occurrence of cyber violence, and promote the pluralistic co governance of cyber violence by putting forward judicial suggestions, procuratorial suggestions and public security prompt letters, consolidate the main responsibility of network information service providers, and constantly improve the long-term governance mechanism. Fundamentally reduce the occurrence of cyber violence, create a clear network space.