Recently singer Wuhongfei was placed in administrative detention for her bomb threat against the Construction Committee on her microblog, and micro-blogging celebrities Qin Huohuo, Li Er Chai Si and Rumormonger were detained by the police. These incidents have drawn attention to the issue of Internet rumor dissemination from official media outlets such as CCTV, the People's Daily, the Xinhua News Agency and other publications. A large-scale crackdown on Internet rumor dissemination has erupted like a wildfire in China. It seems China’s Internet development must undergo a "civilization implant" through reorganization and elimination of Internet rumors in order to lift the Chinese Internet from its current “Wild West” condition to a more modern condition. It should be noted that although this crackdown is being executed mainly by public authorities using their administrative powers, its basis in legal theory is far from obvious.
It is widely acknowledged that “a rumor is more fearsome than tiger”. Especially in today’s society where the Internet is highly developed, spreading rumors over the Internet can cause great social harm, rendering legal compulsion an undoubted necessity. However, given the plethora of legal means to combat Internet rumor dissemination, is criminal punishment really necessary? As more and more Internet rumor disseminators are facing criminal liability, many people have applauded the resulting improvement of the chaotic Internet environment. Nevertheless, it can’t help but raise a question: “What crime was committed by Qin Huohuo and other rumor disseminators, and what effect will these sanctions will have on freedom of speech on the Internet?
In the author’s opinion criminal liability is the harshest form of legal liability, because it deprives a citizen of liberty and sometimes even life. That is why criminal law must be enforced under the principle of nulla poena sine lege (“no penalty without a law”). The identification, types and definitions of crimes as well as the types and severity of criminal penalties must be consistent with criminal law, and acts not prohibited by criminal law should not be punished as crimes. Since the PRC Criminal Code includes no specific crime of “spreading rumors”, criminal liability must not be imposed on Internet rumor disseminators unless their acts constitute crimes under other criminal laws. The Interpretations promulgated by the Supreme People's Court and the Supreme People's Procuratorate on September 2013, Certain Issues Concerning the Application of the Law to the Disposition of Cases Involving Defamation Via Information Networks and Other Criminal Offenses (the “Interpretations”) provide something approaching a certain legal basis via detailed regulations concerning certain acts of Internet rumor dissemination. Based on the Interpretations and cases that might involve criminal liability, Internet rumor dissemination might be characterized as (1) the crime of Illegal Business Operations (Article 225) the crime of Defamation (Article 246), the crime of Fabrication and Intentional Dissemination of False Terrorism Information (Article 291) or the crime of Provoking Trouble (Article 293). In the following section I’d like to discuss whether Internet rumor dissemination should be regarded as a crime.
- The Crime of Illegal Business Operations
Under the Criminal Code, whoever engages in illegal business operations that disrupts market order will be subject to criminal liability if the circumstances are serious. The elements of this crime include (i) engaging in illegal business operations (ii) disturbing market order and (iii) serious circumstances. Potential defendants include both individuals and entities that are subject to criminal liability. The criminal intent that triggers this crime is the intentional pursuit of illegal profits. Most Internet rumors are not disseminated in business operations or for illegal profits. As stated by Mr. Jiang, who was detained by the police for falsely stating that H7N9 bird flu was found in Songmen, Zhejiang province, “Most rumor disseminators are motivated simply by a desire to enhance their online reputation and satisfy their curiosity." Accordingly, activities motivated by such sentiments cannot constitute the crime of Illegal Business Operations.The criminal detention of microblogging celebrities “Qin Huohuo” and “Li Er Chai Si” marked the climax of the crackdown of Internet rumor dissemination. Qin Huohuo established the Beijing Er Ma Interactive Marketing Planning Company to engage in Internet marketing and promotion services. He instructed his employees on how to obtain illegal profits, and organized Internet dissemination groups to fabricate rumors and spread them in cooperation with others via microblogging,, forums and other Internet platforms; his acts included organization planning, fabrication and dissemination of rumors; intentional speculation on Internet issues and malicious defamation of public figures to achieve company profit objectives. Qin Huohuo confessed that his company concocted rumors concerning the 723 Wenzhou train crash, the Guo Meimei Red Cross scandal and the Zhang Haidi controversy. These rumors were among over 3,000 rumors that were fabricated and disseminated by his company. It is the business nature and profit motive that distinguish this type of activity from ordinary rumor fabrication and dissemination. For this reason, most legal experts and scholars agree that Qin Huohuo committed the crime of Illegal Business Operations and was thereby properly detained by the Beijing police. This viewpoint, however, has some theoretical problems to overcome.
The crime of Illegal Business Operations is classified by its object of harm as “undermining socialist market order” which requires “disruption of market order”. According to legal scholars, Illegal Business Operations is an economic crime that disrupts economic market order by damaging the systems and standards of economic management. Qin Huohuo and Er Ma Company’s operations obviously didn’t disrupt market order. Although its operations violated the “right to know” held by the general public and certain individuals through the use of fabrication, exaggeration and misrepresentation; since they did not impact the country’s economic system or market access policies, they did not disturb market order.
In objective terms, to commit the crime of Illegal Business Operations one must commit illegal acts during business operations that disrupt market order, and the circumstances must be serious. "Illegal acts" means acts that violate national statutes and regulations governing market access policies. Article 225 of the Criminal Code prohibits unauthorized franchising practices; dealing in goods subject to a legal monopoly or legal restrictions without appropriate authorization; buying or selling import or export licenses, import/export certificates of origin or other business licenses or approval documentation required by law without authorization; dealing in securities, futures, insurance or negotiable instruments without authorization, and other illegal operations that seriously disrupt market order. Please note that “other illegal operations that seriously disrupt market order” is a catch-all clause that allows the criminalization of other conduct that seriously disrupts market order even if not listed in Article 225. Accordingly, based on Article 7 of the recently issued Interpretations, “In any of the following circumstances, whoever violates national regulations by providing information deletion services with compensation or, for reasons of pecuniary gain, releases information to information network services that the releaser knows to be false, is guilty of illegal Business Operations if the circumstances are particularly serious circumstances. Guilty parties shall be convicted and punished accordingly The acts of Qin Huohuo and others obviously constituted the release of known false information via an information network for the purpose of pecuniary gain. Considering the content of the Interpretations together with the introduction to the background of the Interpretations by a spokesman for the Supreme Court, Qin Huohuo is very likely to have committed the crime of Illegal Business Operations.
It must be pointed out that, on one hand the Interpretations are not subject to arbitrary interpretation – certain standards must be complied with. The crime of Illegal Business Operations, however it was interpreted, must focus on "disruption of market order" as an essential characteristic. The author doubts that Er Ma company’s operations could disrupt market order. On the other hand, Er Ma was primarily engaged in Internet marketing and promotion. The operation did not itself violate national laws or administrative regulations even if it incorporated illegal acts into its promotional efforts. Accordingly, the question arises whether the operation should be considered “in violation of national regulations" as set forth in the crime of Illegal Business Operations.
In addition, the Interpretations did not define "false information". In the event of a broader interpretation that “information not truly presented" is false information, the operators of advertising and media businesses would also be under suspicion of disseminating false information because exaggerations (“sales puffery”, for example) is so common in these industries. Consequently, to prevent this crime from being defined in a frivolous manner, the definition of the crime of Illegal Business Operations should be further refined.
- Criminal Defamation
As mentioned earlier, the nature of Internet rumor dissemination is fabrication, exaggeration or misrepresentation. If the false information is disseminated on the Internet, the victims’ dignity and reputation might be harmed. If the harm reaches a certain degree, it is entirely possible that it will qualify as criminal defamation, rendering the perpetrator liable for criminal conviction and sentencing. Criminal defamation is therefore a crime that can be used directly to punish Internet rumor dissemination. In consideration the nature of the conduct, the author believes that the following issues deserve attention with respect to criminal defamation.
First, criminal defamation is generally a private criminal offense (unless it gravely threatens social order or the interests of the state). Consequently, the police will not investigate such a case and the court will not try it unless the victim initiates a prosecution. In other words, if the victim does not file a complaint with the court system or with the police, these authorities have no authority to investigate or prosecute. When rumors are spread and forwarded via the Internet, victims are normally unaware of the source of the rumors. Even if the source is ascertained, because of the virtual nature of the Internet, the perpetrator will likely be able to conceal his/her identity. Consequently, prior to determination of the identity of the perpetrator it is difficult for victims to enforce their rights with criminal sanctions. This is the undoubtedly the most challenging obstacle to the regulation of defamatory content on the Internet. Nevertheless, Article 3 of the Interpretations provides that the defamation of many people in a manner that results in adverse social impact should be regarded as causing serious damage to social order or the interests of the state, allowing the prosecutor’s office to initiate a prosecution. This provision can certainly play an active role in helping victims enforce their rights.
Second, information subject to criminal defamation must be entirely fabricated. If the information is true and the disseminator merely violates the victim’s privacy, dissemination of the information is not criminal defamation even if it includes malicious exaggeration and insults that defame the victim’s character and reputation.
Third, defamation infringes the civil and democratic rights of natural persons – individuals, not entities. According to the relevant provisions of the Supreme Court, infringement of the legal right of the legal persons, groups or other organizations is not subject to criminal defamation. When a company is defamed and Internet rumors seriously infringe its image and reputation, Article 221 of the Criminal Code (the crime of defaming the reputation of a company or product) can be used.Finally, criminal defamation requires that the circumstances be serious. Article 2 of the Interpretations provides that defamation will be classified as “a serious circumstance” under any of the following circumstances in which a person is defamed through an information network:
- The same defamatory information has been viewed over 5,000 times or has been forwarded over 500 times;
- The defamation causes serious consequences to victims or close relatives such as insanity, self-harm or suicide;
- The perpetrator has been subject to administrative punishment for defamation within the two preceding years and continued defaming others; or
- Other serious circumstances.
Among these circumstances, the standard that an item of information must be viewed over 5,000 times or forwarded over 500 times is the most controversial. Specific legal criteria defining criminal defamation is undoubtedly relevant to trial and provides helpful guidance. Nevertheless, the controversy revolves around whether these standards are scientific and reasonable A spokesman for the Supreme People's Court stated that the standards are determined on the basis of empirical research and professional debate. The author believes that it is still in doubt whether this standard is truly scientific; however, it is certain that the implementation of the Interpretations will greatly impact the micro-blog “Big VIP” and the words and actions of other Internet celebrities.
On one hand, Internet celebrities, as "public figures", must be cautious about their words and actions because they tend to have a significant impact on Internet behavior. Once their words and deeds rise to the level of serious misconduct, they may be imprisoned. On the other hand, the comments of bloggers with numerous fans might be viewed and forwarded 10, 000 times or more, and such a large quantity of information will inevitably contain a certain amount of extreme content or false information. In order to prevent the abuse of criminal liability, however, it must be emphasized that not all Internet rumors causing serious impact should be considered criminal – malicious intent should be a prerequisite for criminal liability.
- The Crime of Fabrication and Intentional Dissemination of False Terrorist Information
Article 291 of the Criminal Code defines the crime of Fabrication and Intentional Dissemination of False Terrorist Information as the intentional fabrication and deisemination of terrorist threats of explosions, chemical and biological threats or radioactivity in a manner that seriously disrupts public order. In reviewing rumors widely disseminated on the Internet, a large quantity of terrorist information can be found such as "H7N9 breaks out again" and "the army enters Beijing". This kind of information exerts a very bad influence. In my opinion, convicting people of Fabrication and Intentional Dissemination of False Terrorist Information will not be problematic in terms of legal theory. Extreme caution should be employed when identifying and responding to such behavior, however, especially with respect to the following issues:
First, the scope of the term "terrorist information" must be strictly limited and overbroad interpretations should be forbidden. Under the general theory, terrorist information must not threaten the safety of specific persons or property, but should be information that has a tendency to create a general atmosphere of terror as threats of explosions, chemical and biological attacks and radioactivity. Accordingly, policy rumors such as "gasoline prices will rise 30 percent next month" or "a fire will break out somewhere" will not lead to panic and should not be considered terrorist information, especially extreme comments and viewpoints offered by Internet users concerning government policies or social phenomena.
Second, the crime must be committed intentionally. In other words, perpetrators of this crime must fabricate terrorist information concerning threats of explosion or biological, chemical or radioactivity threats while clearly knowing that the information is fabricated, and they must intentionally disseminate this information. Mere negligence will not satisfy this standard. It means those who disseminate information that they mistakenly consider true or who mistakenly believe the information does not concern terrorism are not guilty of this crime.
Finally, the terrorist information must have the potential to trigger panic and disrupt social order. In particular, note the difference between fabricating rumors and venting emotions on the Internet. As a space for free expression, the Internet should tolerate a certain degree of the inevitable biased and false statements that are actually nothing more than emotional catharses that lack the potential to cause general panic. Such statements can be naturally digested by the Internet and should be allowed because arbitrarily imposing criminal liability based on fabrication of terrorist information could be more harmful than the fabrication itself.
Some time ago singer Wu Hongfei threatened via micro-blog to blow up the Construction Committee. This is a quite typical case. Although her statement was obviously inappropriate, after reviewing her usual style of language, her identity and her subsequent micro-blogging topic "I want to fry chicken wings", we may conclude that the threat to blow up the Construction Committee was expressed merely to vent negative emotions, and that no reasonable person would take it seriously. For this reason even if Wu Hongfei’s statement contained "terrorist elements" and was presented intentionally, she did not commit the crime of Fabrication and Intentional Dissemination of False Terrorist Information because the statement was not likely to cause panic or disturb social order. The Beijing police appropriately punished Wu Hongfei by imposing administrative rather than criminal sanctions.
- The Crime of “Provoking Trouble”
The Public Security Administration investigated Qin Huohuo for another crime, the crime of Provoking Trouble. Article 293 prescribes the following conditions for this crime:
- committing a flagrant random assault;
- flagrantly pursuing, intercepting, verbally abusing or threatening another;
- forcibly taking or demanding, willfully damaging or occupying public or private property to a serious degree; or
- creating a public disturbance in a manner that causes serious disorder.
Qin Huohuo obviously did not meet the first, second or third condition. Whether he committed this crime, then, must depend on whether he created a disturbance in a public place that caused serious disorder. The crucial point here is whether the Internet qualifies as a “public place” . According to Article 5 of the Interpretations, anyone who knowingly disseminates false information or organizes and instigates others to disseminate false information via an information network and thereby creates a disturbance that results in serious public disorder, is guilty of the crime of Provoking Trouble. Although this article clearly classifies information networks as public places, the author disagrees.Generally, a public place is thought to be a crowded place that serves for people’s use and activity. Both individuals and their conduct are exposed to the public. The Internet, however, in most people's minds, is mainly an "information carrier " rather than a “people carrier” although it is also open to the public. In fact, the public perception of the Internet as both virtual and private contributes to the Internet’s function as a free platform for people to express their opinions and ideas. To recognize the Internet as a “public place” contradicts the usual logic. Under principles of statutory interpretation, the crime of Provoking Trouble in Article 293 of the Criminal Code stresses the “immediacy” and “violence” of the act, which is significantly different from Internet rumor dissemination. Even the Interpretations of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of the Law to Criminal Cases of Provoking Trouble (effective July 2013) also did not treat the Internet as the public place. Consequently, the treatment of this issue in the Interpretations is quite far-fetched.
As stated above, China's Criminal Code neither directly criminalizes the dissemination of rumors nor offers any other provision that is perfectly suited to punish acts of Internet rumor dissemination. We must be extremely cautious in using criminal defamation or Fabrication and Intentional Dissemination of False Terrorist Information, even though certain acts of dissemination sometimes satisfy the constituent elements of these crimes. The Public Security Administration’s determination that Han Huohuo committed the crime of Illegal Business Operations and the crime of Provoking Trouble is questionable.
Although it is said that rumors stop when they reach a wise man, the law can stop a rumor even more effectively. The Interpretations will certainly close loopholes in existing law and apply legal force to punish Internet rumor dissemination with transparent conviction and sentencing standards. It will certainly play an active and significant role in reorganizing the Internet. Nevertheless, some of the clauses are problematic interpretations of criminal law, such as its emphasis on placing the need for convictions over the enforcement of rigorous and rational laws, putting it into conflict with the Criminal Code. The author believes that law enforcement should not mean randomly applying harsh criminal penalties to punish and warn others. Instead, criminal liability should be regulated by scientific rigor and a rational legal system so as to prevent the law from devolving into a mere policy tool.
In practice, when Internet rumors infringe the legal rights of natural persons or business entities, the victims can assert their rights of reputation or their rights of privacy by having their attorneys file lawsuits. Both law and theory require further improvement to distinguish between the obligations of people who disseminate rumors, ordinary Internet rumor fabricators and celebrities. If Internet rumors include false reports of danger or disease, or if they otherwise intentionally disturb public order, the rumor disseminators may be subject to administrative sanction under the Public Security Administrative Punishment Law, and the Measures for the Administration of Computer Information Networks and Internet Security and Protection. Regardless of whether or not future criminal legislation adds the crime of “spreading rumors " to the Criminal Code, civil and administrative liability are the major legal pathways for punishing the Internet rumor dissemination and criminal punishment should be reserved for extraordinary circumstances.
Furthermore, we need to ask why so many people believe the rumors appearing on a rumor-saturated Internet. The author believes that this situation results from a hostile, suspicious Internet environment rather than from the naiveté and benevolence of Internet users. Theories developed in communications studies indicate that people tend to believe whatever they want to believe. Emotions and viewpoints accumulate on the social landscape as enduring stereotypes, and rumors quickly sprout and spread when they flatter these stereotypes. The resulting flames are fanned by insufficient information disclosure, inappropriate behavior by the government, and by efforts to hide the truth. This encourages Internet users, in their discontent, anger and rebellion, to fall into the trap of rumor networking. To solve this problem we must strike and the root of it. Attempts to find a purely legal solution are narrow-minded and insufficient.