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author: zhao hong

professor of law, peking university

recently, several penalty decisions have been made in many places to punish rumors, and many of them have caused great controversy.

a typical example is the 4.7-magnitude earthquake that struck hefei, anhui on september 19. after the earthquake, a citizen posted a video saying that a high-rise residential building in hefei was cracked by the earthquake, and many roads had jagged cracks. however, after verification by the hefei internet illegal and bad information reporting center, the video was spliced ​​and edited, and hefei did not find cracks in the road caused by the earthquake. the gaps between high-rise buildings in the video were expansion joints, not caused by the earthquake. the feidong county public security bureau believed that the poster had spread online rumors and detained him for 5 days.

if the feidong county public security bureau detained the poster because it was worried that the spread of the video would cause chaos and influence, another penalty decision in hengyang, hunan, has sparked even more heated discussions. according to the hengyang daily, a local netizen named zhou uploaded a picture of the local ferris wheel online and wrote, "we are also the first group of people to ride (the hengyang ferris wheel)." however, because the local ferris wheel has not yet been put into operation, the police believed that zhou's behavior was a rumor and imposed administrative penalties.

why shouldn’t online speech extend to provoking trouble?

the basis for the above-mentioned penalties is based on article 25 of the "public security administration punishment law", which states: "anyone who commits any of the following acts shall be detained for not less than five days but not more than ten days, and may be fined not more than rmb 500; if the circumstances are minor, he shall be detained for not more than five days or fined not more than rmb 500: (1) spreading rumors, falsely reporting dangers, epidemics, police incidents, or intentionally disturbing public order by other means..."

in addition to article 25, the public security organs also use article 26, the "provoking trouble clause", to combat online rumors. the background of this is that the supreme people's court and the supreme people's procuratorate issued the "explanation on several issues concerning the application of law in handling criminal cases of defamation and other crimes using information networks" in september 2013.

among them, article 5 stipulates that "whoever uses information networks to insult or intimidate others, with serious circumstances and disrupting social order, shall be punished for the crime of picking quarrels and provoking disturbances in accordance with the provisions of article 293, paragraph 1, item (2) of the criminal law. whoever fabricates false information, or knowingly spreads false information on information networks, or organizes or instigates others to spread and stir up trouble on information networks, causing serious disruption of public order, shall be convicted and punished for the crime of picking quarrels and provoking disturbances in accordance with the provisions of article 293, paragraph 1, item (4) of the criminal law."

because of the exemplary role of judicial interpretations of the criminal law, administrative practices such as making insulting remarks against state public officials including police officers, traffic police, government, village committees, police stations, etc. on wechat moments, wechat groups, and tieba, or those who are considered to have fabricated and spread false information, are often punished by public security organs on the grounds of provoking trouble.

but it is worth noting that when the supreme people's court and the supreme people's procuratorate initially issued the above-mentioned judicial interpretation and regulated online speech, it caused considerable controversy.

many scholars have pointed out thatinternet behavior is not behavior, but speech; to classify the act of posting information on the internet as provoking disturbances or illegal behavior is to expand the application of provoking disturbances, which does not directly involve freedom of speech, to the punishment and crackdown on online speech. this not only violates the principle of legality of crime and punishment, but also conflicts with the freedom of speech guaranteed by the constitution.

the core concern of this objection is the tolerance and protection of online speech. as a basic right of citizens clearly stipulated in the constitution, freedom of speech is of great significance to the construction of an open and rational society. modern countries also tolerate and encourage the public to freely express their ideas and thoughts, and even allow them to criticize the government and evaluate the law through speech, thereby promoting public rationality.

among the many forms of expression, online speech has undoubtedly become the main channel for people to practice freedom of speech today. the reason is not only that the dissemination method is convenient and fast, but also that it has gotten rid of the prior censorship of paper media publications to a certain extent. the anonymity of the internet also means that people do not need to worry about possible subsequent accountability.

where are the boundaries of legal punishment for online rumors?

of course, freedom of speech has its limits, whether on the internet or in the real world. for example, the exercise of freedom of speech cannot harm the reputation and honor of others, and cannot disrupt public order by spreading false statements or causing trouble. especially in the contemporary era of frequent cyber violence, netizens must not hide behind keyboards and screens and morally suppress and insult and degrade others by publishing information that insults, spreads rumors, slanders, invades privacy, and makes derogatory, discriminatory, and malicious speculations that seriously affect the physical and mental health of others.

however, we still need to be extremely cautious when combating online rumors through legal punishment.

the reason is,on the one hand, whether it is based on article 25 or article 26 of the "public security administration punishment law" to impose public security penalties on private individuals, there must be an objective act of spreading rumors., that is, fabricating and spreading lies without factual basis in order to confuse others, such as creating and spreading false information in society about impending earthquakes, wars, food hygiene, commodity shortages, infectious disease outbreaks, etc.it is difficult to judge what constitutes a "rumor".in past administrative practices, there have been many cases where people were punished for publishing information that was not officially recognized. in some cases, the information was confirmed by public authorities after the person concerned was punished, which made the administrative punishment produce extremely negative social effects.

on the other hand, public security administrative penalties, like criminal penalties, in principle require the existence of harmful consequences before they can be imposed, rather than simply punishing the behavior of the person involved.

unlike the real world, if a private individual spreads false information online, how to judge whether the information will cause "disturbance of public order" in the virtual world is a matter of personal opinion. the result can easily lead to erratic punishment, or there is a high possibility of excessive suppression of online speech due to widespread crackdowns.

correspondingly, the excessive crackdown on online rumors by the law also reflects a strong paternalistic tendency to a considerable extent, that is, the government does not trust the public to identify rumors themselves, and hopes to use heavy penalties and heavy punishments to create a "real and clean" online world. this "good wish" is often contrary to the function of online platforms as channels for expressing different opinions, and the underlying logic is also to hope to homogenize the public's thoughts and expressions.

let’s go back to the two recent penalty cases listed at the beginning of the article. whether it is falsely claiming that cracks appeared in the building due to the earthquake, or being one of the first brave people to ride the ferris wheel in the area, although the information disclosed and spread by netizens is untrue, it is difficult to determine that it will cause serious impact on public order or cause misleading adverse effects on others.

so, after hengyang disclosed a case of being punished for lying about riding a ferris wheel that was not yet in operation, some netizens commented, "does bragging get you punished? then if i wrote in my childhood essay "i rode a spaceship and flew into outer space" with a picture, would i also be punished? behind these jokes and ridicules, the public is wary and worried about the abuse of punishment.

i remember attending an anti-cyberbullying conference. after denouncing the harmful consequences of cyberbullying, a guest said earnestly, "why can't we have an online environment full of security and trust?" after hearing this, i couldn't help but laugh.

because adults probably know that the internet is definitely not a place where people can seek safety and trust. it is originally a platform where all kinds of information are mixed and integrated. if you want to seek a smooth, friendly public opinion environment and a safe order, then everyone must conduct self-examination and repeated consideration before speaking.

this will not only lead to the loss of normal emotional expression, but also a large amount of information attenuation. accordingly, in order to avoid suppressing the freedom of thought and opinion, it is necessary to tolerate the expression of controversial or even offensive opinions.

so, is it more important to allow information to flow freely, or to create an absolutely safe network environment? we need to make a choice. of course, choices must also come at a price. after all, freedom will inevitably lead to loss of control and harm; but giving up freedom because of fear of loss of control and harm is a safe but more costly choice.

in this sense, instead of using heavy penalties to combat online rumors, it is better to foster a public opinion environment of mutual respect and tolerance. freedom of expression and information flow may be more important than order.

"rule of law utopia" was jointly initiated by china university of political science and law teachers chen bi, zhao hong, li hongbo and luo xiang. it is a special original column of the phoenix news commentary department.

editor-in-chief | xiao yi