Research On The Difficult Issues Of Judicial Determination Of The Crime Of Online Defamation

Network defamation refers to the act of fabricating facts to defame others and using the network platform to disseminate them with the intention of lowering their social evaluation.In September 2013,the Supreme People’s Court and the Supreme People’s Procuratorate jointly issued the "Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases of Defamation Using Information Network"(hereinafter referred to as "Internet Defamation Interpretation"),which clarifies the elements of the crime of Internet defamation,including In 2015,the Amendment to the Criminal Law(IX)added a new element of "defamation" to the definition of "defamation","seriousness of the circumstances",and "seriously endangering social order and national interests".The Amendment to the Criminal Law(IX)added the provision of Article 246(3)of the Criminal Law,which stipulates that "if the act specified in the first paragraph is committed through the information network,and the victim tells the people’s court,but it is difficult to provide evidence,the people’s court may request the public security organs to provide assistance",which further improves the problem of evidence collection for online defamation.The solution path.These provisions are of great significance to the determination of network defamation,but there are still many problems in the process of judicial determination of network defamation cases.One of them is that the "Internet Defamation Interpretation" stipulates that the modes of conduct of Internet defamation are "fabrication and dissemination","falsification and dissemination",and "dissemination with knowledge of fabricated facts".The first two types of conduct are not controversial,but there has been a disagreement on whether the third type of "spreading a fabricated fact with knowledge of it" should be considered as"defamation by fabrication": there is no agreement on whether this provision in the judicial interpretation is a reasonable expansion or an analogous interpretation that violates the principle of statutory crime.Secondly,the Interpretation of Internet Defamation establishes a quantitative standard for judging the"seriousness of the circumstances",and due to the easy availability of the quantitative standard,judicial cases are overly dependent on the quantitative standard without substantive examination of the defamation content,publicity and reputation damage results.Third,Article 3 of the Interpretation of Internet Defamation subdivides "seriously endangering social order and national interests" into seven cases,but in practice,there is a controversy over the determination of "public order" in the second case,and in practice,there is a lack of definition of "public order" in the fourth case."This is contrary to the basic principles of criminal law.Therefore,the scope of "seriously endangering social order and national interests" should be clearly identified.In response to the above problems,in order to further standardize the judicial determination of the crime of online defamation,first of all,the "fabrication of facts to defame others" stipulated in the Criminal Law should be understood from the viewpoint of a single act,and the "Internet Defamation Explanation" recognizes the situation of "knowingly spreading" as "fabrication".The "Internet Defamation Interpretation" identifies the situation of "fabricating facts to defame others" as a reasonable expansion of the interpretation,and the judicial practice should also identify this situation in the judicial interpretation as the incriminating situation;secondly,for the quantitative standard of "aggravating circumstances" of the criminalization element of Internet defamation,the "aggravating circumstances" should be explored on the basis of adhering to the formal Secondly,for the quantitative standard of "aggravated circumstances" of online defamation,the actual standard of "aggravated circumstances" should be explored on the basis of adhering to the formal norms,establishing the standards of "aggravated circumstances of harmful acts" and "aggravated circumstances of harmful results",and making a decision on the three elements of false content,dissemination method and harmful results,The main criteria include limiting the scope of false content to absolute falsehoods,the degree of false content to "sufficient to harm the reputation of citizens",and considering the degree of publicity of online and offline Again,as for the issue of "seriously endangering social order and national interests",the public prosecution standard should be strictly determined as "seriously endangering social order and national interests".The main issues include that the "network public order" should not be recognized as "public order",and that a distinction should be made between "seriously endangering the social order and national interests" and the elements of the crime.The degree of "aggravating circumstances".