On The Criminal Regulation Of Network Defamation

The rapid development and high popularity of information networks are accompanied by the return of discourse power to the public.However,while information networks provide unprecedented advantages for the return of the right to speak,the anomie of network speech caused by abuse of the right to speak also appears frequently,which triggers two-level adverse reactions:one is that information networks provide a hotbed for the spread of anomie speech,especially the use of information networks to carry out defamation;the other is that the criminal regulation of network defamation activates reputation.Conflict of value including right and freedom of speech.Information network is only the field and tool to carry out online defamation,which is essentially the same as traditional defamation.Internet defamation has new characteristics such as low threshold,openness,enlargement and difficulty to eliminate.It promotes the overall transfer of traditional defamation to the information network,and gradually covers the momentum of traditional defamation.Internet defamation will even become the basic field to regulate defamation in the future.Freedom of speech has boundaries,and the regulation of defamatory speech should also have boundaries and be limited to the cross-border part.The process of balancing the value conflict is the process of defining the defamation crime clearly and limiting the scope of public prosecution.Under the guidance of the principle of legality of crime and punishment,even if it is necessary to expand the interpretation of the elements of traditional defamation crimes,we should exercise restraint and strict interpretation,and prohibit analogical interpretation that violates the principle of legality of crime and punishment in order to avoid overcorrection.The identification of "fabrication" needs to grasp substantive criteria,that is,to judge whether there is a real possibility of reputation damage from the fabricated content and behavior.The identification of "dissemination" needs to grasp the realistic risk criterion of reputation damage,judging from the severity of dissemination behavior,the relevance between specific audiences and the defamated objects and the subjective aspects of the perpetrator.The provision of "fabricating facts to defame others" in Interpretation can be understood from the angle of accomplice.Malicious disseminators and fabricators belong to the same subject,which can be directly identified as fabricating facts to defame others.If it is not the same subject,neither the dissemination after the conspiracy nor the simple dissemination can affect the objective constitution of joint crime.The provision of "Interpretation" on the criminalization of disseminated network defamation is not a breakthrough in the formulation of the principle of legality,but a rational distribution of the nature based on the theory of accomplice.However,the scope of application must be strictly limited,including confining the subject of action to professional disseminators such as organized network Navy or network public relations companies,network pushers with greater influence,subjectively restricting the subject to malicious intentions that are known to still spread,and limiting the "bad plot" to "fabricated" acts with equivalence.The provision of "serious circumstances" in Interpretation is a macro-choice to adapt to the new situation of network defamation.Although it is a breakthrough in the traditional standard of determining defamation crime,the result of adding elements of crime quantity will not necessarily lead to the expansion of penalty.From the microcosmic point of view,there are doubts about specific standards,especially Article 2,paragraph 1.Therefore,the criterion of "serious circumstances" should not only be understood in substance,but also be combined with the substantive judgment of infringement of legal interests,fully considering the realistic degree of reputation damage.Only by defining the prosecution boundary of libel crime can we reasonably restrict public power,prevent the private use of public tools,and avoid "being convicted by words" leading to "being silent as a cicada" in the whole society.After all,this is the greatest disadvantage to social order and national interests."Group incidents" do not belong to the serious consequences that network defamation may lead to.They can not be stipulated as the public prosecution standard of defamation.In judicial practice,they can refer to the stakeholder-type crimes stipulated in the criminal law,and at the same time,avoid criminalizing the small-scale gathering incidents for the purpose of seeking legitimate interests as "group incidents".Under the background of using information network to carry out online defamation,the society of cyberspace is not mature,the boundary of cyberspace order is not clear,we can not simply regard cyberspace order as "public order",let alone bring cyberspace order into the category of "public order" stipulated in "Interpretation".It is not only an over-interpretation of judicial interpretation,but also a destruction of the spirit and system unity of the articles,and may even cause the improper expansion of the penal circle.Those who fabricate facts and maliciously defame party and government organs through information networks are generally punished as incitement-type or disorder-type crimes as stipulated in the Criminal Law.The infringement of the official's right of reputation may violate the crime of defamation,but it should be moderately derogated from in the protection of criminal law.Cyber defamation offences that damage the reputation of high-level officials of the state can be prosecuted,while cyber defamation offences that damage ordinary officials are generally not suitable to be dealt with as public prosecution cases.Compared with"folk ballads",official ballads will not only damage the credibility of the government and consume the fairness of the rule of law,but also trigger retaliation,strangle public supervision,and ultimately trigger the government's deep governance crisis.It is suggested that a defense clause should be added after Article 246 of the Criminal Law to convict the offence:the expression of online speech based on the truth of content or public interest should not be punished as this crime.The reason why criminal law regulates online defamation has been criticized extensively is superficially related to the incomplete coupling of classifying online defamation as traditional defamation.In fact,the principle of criminal legislation and the limitation of judicial interpretation lead to obstacles in dealing with online defamation,balancing the conflict of values and guaranteeing the right to freedom of expression.But this kind of obstacle can also be said to be the price that must be borne by upholding the principle of legality of crime and punishment.In order to minimize this cost,we can consider two changes:one is from the expansion of penalty to the rational return of penalty;the other is from the control of criminal law to social governance.