Supreme People's Court 最高人民检察院关于办理利用信息网络实施诽谤等刑事案件适用法律若干问题的解释
Legal Interpretation No. 21 (2013)
"The Supreme People's Court and Supreme People's Procuratorate Interpretation on Several Issues Regarding the Applicable Law in Cases of Using Information Networks to Commit Defamation and Other Such Crimes" , having been passed by the 1589th meeting of the adjudication committee of the Supreme People's Court on September 5, 2013 and by the 9th meeting of the 12th session of the prosecutorial committee of the Sumpreme People's Procuratorate, is hereby promulgated and takes effect from September 10, 2013.
The Supreme People's Court, The Supreme People's Procuratorate
September 6, 2013
Supreme People's Court and the Supreme People's Procuratorate judicial interpretation on several issues on the application of law in handling criminal cases such as libel committed through information network
Legal Interpretation No. 21 (2013)，passed by the 1589th meeting of the adjudication committee of the Supreme People's Court on September 5, 2013 and by the 9th meeting of the 12th session of the prosecutorial committee of the Supreme People's Procuratorate
The following interpretation on several issues regarding the applicable law for handling cases of using information networks to commit defamation, provocation and causing disturbances, blackmail and extortion, illegal business operations or other crimes, is made so as to protect the lawful rights and interests of citizens, legal persons and other organizations, and to protect the social order, on the basis of "The Criminal Law of the PRC", "The Standing Committee of the National People's Congress's Decision Regarding Maintenance of Internet Security" and other regulations,
Article 1: Where any of the following circumstances are present, it shall be held to be "fabricating information to defame others" as provided in Article 246, clause 1 of the Criminal Law:
(1) Fabricating information that harms others' reputation and disseminating it on information networks or organizing or inciting others to disseminate it on information networks;
(2) Tampering with the original content of information located on an information network and which involves others, to make it harmful to others' reputations, and disseminating it on information networks or organizing or inciting others to disseminate it on information networks;
Where information that is clearly known to be fabricated and harmful to others' reputations is disseminated on the internet, and the circumstances are repugnant, it is considered "fabricating information to defame others."
Article 2: In any of the following situations, using information networks to defame others shall be held to be "serious circumstances" as provided in the first clause of article 246 of the Criminal Law:
(1) The actual number of clicks or views of the same defamatory information reached 5000 or more, or the number of transmissions reaches 500 or more;
(2) Leads to serious consequences such as psychological aberration, self-harm or suicide by the victim or his close relatives ;
(3) Having received an administrative punishment for defamation in the last 2 years, again defames others;
(4) Other situations where the circumstances are serious.
Article 3: Where use of information networks to defame others has any of the following circumstances, it shall be held to"seriously endanger the social order and national interests" as provided the second clause of article 246 of the Criminal Law:
(1) Causes a mass incident;
(2) Causes public disorder;
(3) Causes ethnic or religious conflicts;
(4) defamation of multiple persons that creates a repugnant social impact;
(5) Harms the national image, seriously endangering national interests;
(6) Creates a repugnant international impact;
(7) Other situations that seriously endanger social order or national interests.
Article 4: Where conduct using information networks to defame others has been perpetrated several times in a year without any disposition, and the actual total number of clicks, views or transmissions taken cumulatively amounts to a crime, conviction and punishment shall be made in accordance with law.
Article 5: Use of information networks to berate or intimidate others, where the circumstances are repugnant and social order is undermined, shall be convicted and punished as the crime of provocation and causing disturbances in accordance with provisions of article 293(2) of the Criminal Law.
The dissemination of false information on information networks, which one has either invented or clearly knows to be fabricated information, or the organizing or inciting of others to disseminate it on information networks, creating an uproar and causing serious public disorder, is to be convicted and punished as the crime of 'provocation and causing disturbances' in accordance with article 293(4) of the Criminal Law.
Article 6: Extorting public or private property using methods such as the release or deletion of information on information networks to threaten or coerce other, where the amounts are relatively large, or where the above conduct is committed several times, shall be convicted and punished as the crime of blackmail and extortion in accordance with article 274 of the Criminal Law.
Article 7: In any of the following situations illegal business conduct has 'serious circumstances' and is to be convicted and punished as the crime of Illegal business operations in accordance with article 225(4) of the Criminal Law, where national regulations are violated for the purpose of profit by using information networks to provide a service deleting information in exchange for compensation, or by using information networks to provide a service releasing information, which is clearly known to be false, in exchange for compensation, and disturbing the market order:
(1) an individual's illegal operations amount to 50,000 yuan or more, or unlawful gains of 20,000 yuan or more;
(2) a work-unit's illegal operations amount to 150,000 yuan or more, or unlawful gains of 50,000 or more.
Where conduct in the preceding clause is committed and the amounts reach 5 times or more the amounts provided in the previous clause, it shall be held to be "especially serious circumstances" as provided in article 225 of the Criminal Law.
Article 8: Those providing others with assistance such as capital, venues or technical support while clearly knowing that they are using information networks to commit crimes such as defamation, provocation and causing disturbances, blackmail and extortion, or illegal business operations, shall be handled as joint offenders.
Article 9: Where the use of information networks to commit defamation, provocation and causing disturbances, blackmail and extortion, or illegal business operations, also comprises crimes such as harming commercial or product reputations as provided by article 221 of the Criminal Law, inciting violent resistance to the law as provided by article 278, invention or intentional transmission of false frightening information; conviction and punishment will be in accordance with the more serious offense.
Article 10: Information networks as used in this interpretation includes the internet, television broadcast networks, stationery communications networks, mobile communications networks, as well as local area networks open to the public, and other such information networks that use electronic equipment such as computers, televisions, stationery telephones, mobile telephones as terminals.