Award-winning paper | "Identification of false information in the crime of network-based quarrel and trouble"-won the second prize of Shandong lawyer's excellent paper.

Content Summary

In early 2020, during the prevention and control of the epidemic, online rumors were flying, and the Supreme Law once again issued a document to regulate online rumors. One of the keys to whether the act of spreading rumors on the Internet constitutes the crime of provoking trouble is how to identify "false information. This paper intends to start from the relationship between false information and rumors, from the characteristics of false information and the identification method of two angles to grasp the judicial application of the crime of network-type provocation.

Key words:

Network-type picking quarrels and making trouble, false information, network rumors

Due to the rapid development of the information network, the spread speed and scope of network rumors are different from traditional rumors. Network rumors can have a great impact on a large range with extremely fast speed and extremely low cost. Although network rumors appear on the Internet, the scope of action is not limited to online space, and can have a great impact on people's offline real life. The new crown epidemic in 2020 is even more so that online rumors find a good way to vent, a time of rumors about the new crown epidemic, causing great trouble to public life.

To this end, on January 28, 2020, the Supreme Court issued a document saying: rumors involving the epidemic situation, slandering the state's ineffective control of the epidemic, fabricating information such as medical institutions out of control of the epidemic, ineffective treatment, causing social disorder and other rumors that are likely to cause social disorder, causing serious consequences, in accordance with the provisions of Article 5 of the "Interpretation on Several Issues Concerning the Application of Laws in Handling Criminal Cases Using Information Networks for Defamation" (hereinafter referred to as the "Internet Information Interpretation") issued by the two highs in 2013, criminal penalties can be imposed for the crime of provocation. On February 6 of the same year, the two high and two ministries jointly issued the "opinions on the punishment of crimes that have been issued to hinder the prevention and control of the new coronavirus infection pneumonia epidemic" (hereinafter referred to as "opinions"), which further clearly stated that the fabrication and dissemination of false information on the Internet during the prevention and control of the epidemic may face serious consequences of criminal offences. Whether it is the document issued by the Supreme Law on January 28 or the "Opinions" jointly issued by the two high courts and the two high courts since then, it is in the same line as the "Information Network Interpretation" issued by the two high courts on cyber crime in 2013. However, the above documents all use "false information" instead of the word "Internet rumor" that we usually use. To this end, the Supreme Court said in an official Weibo post on January 28: "Rumor" is a life term, and the law expresses rumors as "false information". Even so, it is still necessary for us to discuss the "false information" in the crime of network-type provocation. Accurately identifying the specific connotation of "false information" is the premise of identifying the crime of network-based provocation. This paper intends to explore the identification of false information in the crime of network-type provocation.

1. false information and rumors

According to the definition of modern Chinese dictionary, news without foundation is rumor, while news that does not accord with facts is false information. Inconsistency with the facts is not necessarily groundless, but without basis, it must be inconsistent with the facts. The extension of false information is greater than that of rumors, so the relationship between false information and rumors is contained and contained. Although the connotation of false information is greater than that of rumors, false information is often taken from the connotation of rumors in the determination of this crime in judicial practice.

Characteristics of 2. false information

The (I) is unfounded. Because false information in law is a rumor in ordinary discourse, no factual basis is the essential characteristic of false information. We are in an era of information explosion. When we turn on our mobile phones and computers, there will be a huge amount of information coming to us. It is difficult to say that every piece of information is true. No one has the ability to accurately judge the authenticity of every piece of information. At the beginning of the novel coronavirus pneumonia epidemic, Dr. Li Wenliang, known as the "whistleblower" of the epidemic, issued a timely warning of protection to the outside world. He posted in his classmate WeChat group: "Seven SARS cases have been confirmed in the South China Fruit and Seafood Market" and attached a diagnosis report. He later corrected the coronavirus infection and sent an introduction about the coronavirus. A few days later, the Wuhan Municipal Public Security Bureau reported that "8 rumors were investigated and punished according to law." CCTV and other media reported it. Later, the Zhongnan Road Street Police Station of the Wuchang Branch of the Wuhan Municipal Public Security Bureau admonished Li Wenliang on the grounds that "on December 30, Li Wenliang made untrue remarks on the confirmed 7 cases of ASRS in the South China fruit and seafood market", believing that the behavior "violated the relevant provisions of the Public Security Administration Punishment Law, it is an illegal act". The author believes that Li Wenliang's remarks on WeChat are based on the diagnostic report issued by his hospital, rather than a conclusion made up of groundless speculation. Even if it is later proved that the diagnosis report is wrong, or if the medical science finally determines that the case is a new type of pneumonia infected by coronavirus instead of SARS in 2003, it cannot be concluded that the remarks made by Dr. Li Wenliang are false information. The Zhongnan Road Street Police Station of Wuchang Branch of Wuhan Municipal Public Security Bureau identified Dr. Li Wenliang's remarks on his classmates' WeChat group as "rumors" and punished them, obviously ignoring the diagnosis report on which Dr. Li Wenliang was based.

Another question is also involved here, that is, false information in criminal law naturally contains all false information, but whether it includes some false information. "It is generally believed that most or key information is false. Even if some of it is true, it can be regarded as false information in criminal law." [] A typical case is that Yu Heyu, a netizen in Dangshan, Anhui Province, posted a message on Weibo that the actual death toll in a major traffic accident was 10 and 16 people died. The Dangshan County Public Security Bureau gave netizens Yu Heyu administrative detention for 5 days according to the Public Security Administration Punishment Law, but only 5 days later, the bureau admitted that the above punishment was inappropriate through the official Weibo, it has decided to revoke the above-mentioned administrative penalties and apologize to the parties and their families. However, some scholars believe that if the information forwarder deliberately publishes "misleading information" that is enough to mislead the public to mislead the public by quoting out of context and destroying the integrity of the information, "or if the key points of the information are substantially modified, resulting in the effect of dissemination that is inconsistent with the facts, it should also be regarded as false information in criminal law." [] In my opinion, the identification of false information needs to be explained specifically to the specific charges involved, and as far as the crime of online rumor-type provocation discussed in this paper is concerned, all false information must be the infringement of legal interests, while some false information needs to be seen as whether it has infringed legal interests. If the information released by the actor has a certain factual basis, but it is substantially modified when it is released or forwarded, resulting in a substantial difference between the information and the facts and infringing on the legal interests, it can be identified as false information, otherwise it should not be identified as false information.

(II) concreteness. The crime of Internet rumor-type provocation only stipulates the form of false information, but does not mention the content of the information. The author believes that false information must have specific content and need to include basic elements such as time, place, people, and events. Information that does not have specific references and simply shouts slogans to vent emotions cannot give the audience a clear understanding, let alone cause The chaos of social order cannot be regarded as false information. For example, netizen Zhu said on social media that "something big has happened in Yinchuan!!! The news was blocked so fast!! It was horrible!" With only the above few vague short sentences, the audience does not have a clear understanding of the information Sun wants to express, let alone what chaos this kind of information will cause to social order. Language is the product of the environment, any language needs to be in a certain environment to show the specific meaning. If the audience can make a specific response to the information that lacks basic elements in the light of the current social environment, we can conclude that the information has specificity. For example, on January 25, 2020, a netizen in Dongshan, Zhangzhou, Fujian, posted in WeChat group, "Dongshan wants to close the city, everyone, come and snap up rice." Coincidentally, on the same day, a netizen in Yan'an, Shaanxi Province, joked with a friend after drinking and posted a video in the circle of friends saying that he had returned from Wuhan. In the era of peace, it is difficult to say that there is a city seal, but combined with the current epidemic raging, Wuhan city seal war "epidemic", the audience after seeing the news is easy to believe that there is panic, and then rush to buy rice to cause social order chaos. Wuhan, as the first place and hardest hit by the new crown epidemic, "return from Wuhan" has taken on a new meaning in the current environment. Therefore, although the information in the above two examples is not specific strictly speaking, it also has the characteristics of false information specificity because the audience can produce a more consistent response in combination with the general environment.

(III) and reality. Since false information is to disrupt public order, on the one hand, it must require that the information is related to the real life of the audience group, and information that is not related to the real life of the audience group or has very little relevance, and cannot cause the public to respond badly or make wrong decisions. For example, when China's neo-coronavirus epidemic is severe, the United States is suffering from the worst flu in history, and Australia is plagued by fires that have been burning for months and hundreds of thousands of bats invading cities, even if someone publishes false information about the American flu or Australian bats, it will not cause an overreaction among the Chinese public, let alone cause public disorder. On the other hand, false information needs to be related to the real life of the audience to a degree sufficient to cause public disorder. "the harmfulness of spreading false information on the Internet lies not in the act of spreading it, but in the falsehood of the information, but only the commonly understood false information is not enough to explain the punishability of punishment." [] For example, on January 26, Jiangsu Nanjing netizen Sun Mou posted on the Internet "in the name of a reporter to release Nanjing since January 27 traffic suspension, comprehensive closure of the city information", and then the information was forwarded in large numbers in a number of network groups, causing adverse effects. Whether the city is closed or not is very important in the daily life of the residents of a city, this news is also very related to the life of the public, enough to cause social order chaos, so the person involved in the case Sun also became the first person to be detained during the new crown epidemic for publishing online rumors suspected of provoking trouble. "As the saying goes, the interpretation of the constituent elements of the violation must make the illegality of the act to a level worthy of punishment." [] False information must be closely related to public life in content, enough to disrupt public order, in order to become the object of punishment.

(IV) enough to make people believe. If no one believes a rumor, it will not be widely spread, nor will it cause the harmful result of social disorder. The punishability of false information lies not only in that it is false, but also in that it can disturb the social order with false information. Therefore, false information is misleading enough to make people believe that it is the proper meaning of its punishment. Attention needs to be paid here to distinguish between false information and extreme statements when emotional catharsis occurs. For example, in September 2013, Liu, a Guangdong netizen, was criminally detained by Guangzhou police because he was dissatisfied with the handling of medical disputes in a hospital, saying that he was going to bomb the subway. Later, because the procuratorate refused to approve the arrest, the police withdrew the case on the grounds that the circumstances were significantly minor. In the early morning of January 26, 2020, Guo mou of Tonglu saw in the wechat group that "Beijing, Shanghai and other places do not accept Wuhan people, and Hangzhou Xiaoshan airport began to fully accept Wuhan people". after that, Guo mou of Tonglu released the radical remarks of "blow up Xiaoshan airport and prevent them from landing" in his wechat circle of friends and wechat group. In the absence of relevant evidence or background, it is difficult for the public to believe that an ordinary netizen will really bomb the subway or airport. They will only think that this is an extreme statement of personal emotions. This expression will not make the public believe it, nor will it cause The chaos of public order. This is not misleading can not make people believe that the excessive expression of personal emotions can not be false information in the sense of criminal law.

To sum up, not any piece of false information on the Internet should be regulated by the crime of provoking trouble in the "Network Information Interpretation". Only when it has the above four characteristics at the same time can it become false information in the crime of provoking trouble. The author believes that the false information that constitutes the crime of network-based provocation must be untrue information that has no factual basis, the specific content can make people believe it and has a great connection with the life of the audience, and has the possibility of causing social disorder.

Identification Method of 3. False Information

Through the above analysis, we can see that there is a certain gap between the "false information" in the crime of network provocation and the "network rumors" in our daily life. To accurately identify the "false information", we must understand and apply it in the context of the normative language of the criminal law. When the Supreme Law issued the ''Network Information Interpretation'' in 2013, it clearly stated that some criminals use the information network to maliciously fabricate and spread false information, cause trouble, cause serious chaos in social public order, and have considerable social harm. The crime of provoking trouble shall be investigated for criminal responsibility. In practice, the identification of the crime of network-based provocation and trouble usually takes into account the subjective "malice" of the perpetrator, which is also a manifestation of the unity of subjectivity and objectivity. However, it is worth discussing whether the "malicious" of the perpetrator needs to be considered in the identification of "false information. Malice is a term of life, not a normative language in law. According to the interpretation of modern Chinese dictionary, "malice" should refer to bad intention or intention, and the language transformed into criminal law refers to the purpose of crime. If the definition of the crime of false accusation includes "intent to subject others to criminal prosecution", the intent here refers to the purpose of the crime. As we all know, the criminal purpose (motive) of the crime of provoking trouble is to seek mental stimulation, which is a subjective element of the crime. The problem is that seeking mental stimulation cannot be equated with malice. For example, Shen Moumou, the sales manager of the "Shanghai Li Jing" project, wants to urge customers to sign up and pay by releasing false news to potential customers that the credit policy is tightening. In order to have better sales performance, Shen Moumou conveniently announced in WeChat group on August 22, 2016 that "he has been informed that due to the high price of land auction recently, the municipal party committee will hold a meeting of various departments next week and plans to adjust the bank loan policy from September onwards. Please urge the unfinished loan contracts to be handled as soon as possible. This time the credit policy has been tightened greatly". "After that, the false information was widely forwarded, commented and reported by dozens of media on the Internet in a short period of time, which became one of the three major rumors that led to irrational house purchase sentiment in Shanghai's real estate market in August 2016, causing government departments to launch major public opinion disposal plans to maintain the order of the real estate market." [] In this case, Shen Moumou, driven by the benefits of performance, fabricated provocative real estate new policy information to spread on the information network, which is out of thin air, causing trouble, and has the subjective intention and motivation to provoke trouble, but it is hard to say that Shen Moumou is malicious. For another example, in the rumor case of the collapse of the Yuyao Reservoir in Zhejiang Province, 40 people died, the parties claimed that the purpose of creating the rumor was to attract people's attention to the disaster in Yuyao, which can hardly be said to be malicious. Therefore, the author believes that the identification of false information can not be determined from whether the subjective is malicious, but can be carried out from the following three aspects.

It is (I) to distinguish whether the information fabricated and disseminated is opinion speech or factual speech. As we all know, the expression of personal views is a person's right to freedom of speech and should not be the object of criminal law regulation. Therefore, the false information referred to in the crime of network-type provocation must be a factual statement describing the facts. It is important to note whether the questioning and verification of the statement is false information. For example, on January 16, 2016, the netizen Guo Mou posted on the Internet: "There was a gang fight in Sanya Chuangye (Building) tonight! A group of young people with machetes are mighty and mighty, is there an insider? Under the live broadcast". This kind of inquiry and verification information seems that Guo mou does not know the situation at the scene either. in fact, combined with the whole information, the audience can make up a big scene of gang fights by themselves through this information. Therefore, whether the rumor seeking and questioning confirmation speech on social media is false information needs to be judged according to the specific situation. If the audience can draw a more specific meaning according to their own cognitive ability combined with the timing, environment, content and nature of the information release, it can be determined that the information is false information.

(II) determine whether false information has the potential to cause public disorder. As long as a piece of information cannot cause chaos in public order, no matter how false it is, it cannot become false information in the crime of network-type provocation. For example, if a netizen sends a message saying: This epidemic was caused by the Jade Emperor's anger because of the impious worship of human beings and sent bats to clean us up. The information is groundless and the audience will not believe it. Although it is false information, it will not cause social disorder. The legal interest of the crime of provocation and provocation is social public order. Only the possibility of infringing on the legal interest protected by the criminal law can be evaluated by the criminal law. From the perspective of the legal interest of the law, the false information spread on the Internet can only cause social public order. The possibility of disorder may constitute the crime of network-type provocation and provocation. If the information fabricated and disseminated by the perpetrator has nothing to do with the life of the audience and cannot cause chaos in the social order, even if the perpetrator has the intention to provoke trouble, it cannot constitute a crime. As for whether it causes social disorder, it is necessary to judge the adverse reaction of the audience to the false information from the standpoint of ordinary people and according to the general cognition of the audience.

(III) judge whether there is a real basis for false information. If a message is based on factual or scientific evidence, even if the conclusion is unexpected, it cannot be considered false information. As mentioned earlier in the Li Wenliang case, Li Wenliang is based on the diagnosis report issued by his hospital published the South China seafood market confirmed 7 cases of ASRS statement, not out of thin air. Even if the diagnosis report at that time was proved to be wrong afterwards, it cannot be regarded as false information. After all, medicine is different from natural science and is limited by many factors such as diagnosis and treatment technology, diagnosis and treatment methods, and the level of doctors. The law, especially the criminal law, cannot judge whether the speech made by the actor before is false information with the mentality of "Zhuge Liang after the event, unless there is evidence to prove that the diagnostic report attached to Dr. Li Wenliang's release of the information was forged and false. As another example, on February 3, 2020, Wuchang netizen Li Mou sent a message saying, "The surrounding troops have begun to assemble, and all chain hotels have been requisitioned by the government. If the epidemic situation does not turn well on the 10th, the PLA will take over the city in an all-round way. Every day, the PLA will deliver the food to your home and close the house according to your population's needs." To judge whether the information is false information, on the one hand, it is necessary to combine the anti-epidemic measures of the whole country at that time and the situation in Wuhan. The epidemic situation in Wuhan showed an explosive growth trend in February. All sectors of society have criticized Hubei, especially the Wuhan municipal government's response to the epidemic. Measures are quite critical, and Zhejiang Hangzhou, Wenzhou, and Taizhou have indeed adopted "all people do not go out" measures similar to "closing households. On the other hand, it is necessary to combine the political status of the People's Liberation Army in our country. The People's Liberation Army is the representative of our armed forces and bears the heavy burden of defending our country. Many of the medical teams fighting the epidemic are medical personnel from the army. The Vulcan Mountain Hospital, which was built specifically to fight the new coronavirus, was handed over to the army on February 2, and more than 1400 PLA medical personnel were stationed at the Vulcan Mountain Hospital. Although the information was fabricated by Li, it was not fabricated out of thin air, but an assertion based on various facts. It can also be understood by the public in common sense. It belongs to information that has a certain factual basis but is not completely true. For this kind of information, it depends on the nature and possible impact of its non-factual part. "If the part that is inconsistent with the facts has independent significance or the part that is inconsistent with the facts is the main fact that causes public reaction, the information should still be regarded as false information although it has a certain basis." []

A gentleman is not afraid of the tiger, but he is afraid of the slander's mouth. Since ancient times, rumors have never been absent from human life. Internet rumors have broken the restrictions of time, space and region, and spread rapidly under the influence of the Internet, which has given birth to professional "network pushers". The Internet has never been a place outside the law. Even in a virtual space, while people enjoy freedom of speech, their words and deeds should still be limited and not violate the red line of the law. Since September 2013, the two high school issued the "network information interpretation", the identification of the behavior of fabricating and disseminating false information on the network has been controversial. The reason is that all walks of life have different understanding of "false information", "public places" and "causing serious disorder of public order. space limit, this paper only discusses the "false information", in order to reasonably and appropriately explain the criminal law, and give full play to the regulatory function of criminal law.

[] See Liao Bin and He Xianbing: "On the Criminal Law Regulation of Internet False Information", Application of Law, No. 3, 2015, p. 37.

[] Yang Zhengjun et al., "How to Apply the Law to the Use of the Internet to Spread False Information", People's Procuratorate, No. 6, 2015, p. 42.

[] Sun Wanhuai and Lu Hengfei: "Criminal Law Should Respond to Internet Rumors Rationally-An Empirical Evaluation of Judicial Interpretation of Internet Rumors", Law, No. 11, 2013.

[] Zhang Mingkai: "The Re-promotion of the Theory of Substantive Interpretation", Chinese Law, No. 4, 2010.

[] See (2017) Judgment No. 183 at the Beginning of Punishment of Shanghai 0115.

[] ibid., note 3, Sun Wanhuai, Lu Hengfei-wen.

References

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