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on september 30, the xincheng branch of the xi'an municipal public security bureau issued a police report. in order to gain network traffic, 33-year-old netizen liu spread a false video of "snowing in xi'an" on the internet, disrupting public viewing and causing adverse effects. the public security bureau followed the law. liu was placed under administrative detention.

red star news reporters have noticed that some recent cases in which online rumors have been dealt with have also triggered extensive discussions. for example, on july 27, zhou spread five similar and false pictures about the hengyang ferris wheel on an app with the text "we are also the first people to ride on it" and was administratively punished by the police in accordance with the law; 9 on march 18, after the earthquake, chen posted a video of a suspected crack in a high-rise building. later, it was verified on site that the crack in the middle of the house was an expansion joint. chen was detained by the feidong county public security bureau for 5 days due to internet rumors.

some netizens expressed confusion. is it possible to violate relevant laws and regulations by bragging about something or misunderstanding certain phenomena when using the internet?

▲screenshot of a fake video of "snowing in xi'an" spread online

in response to the above cases, lawyer yuan yulai, a member of the administrative law professional committee of the all-china lawyers association, lawyer zhang bingyao of sichuan zongmu law firm, and zhao liangshan, senior partner of shaanxi hengda law firm and a well-known public interest lawyer, analyzed and answered the questions.

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between “bragging” and spreading rumors

what's the difference?

lawyer zhang bingyao said that if "bragging" crosses the boundary, it may constitute a violation of law. in specific practice, public security organs punish "bragging" in accordance with the public security administration punishment law, mainly based on article 25, that is, "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 also be fined not more than five hundred yuan." fine; if the circumstances are relatively minor, he shall be detained for not more than five days or fined not more than 500 yuan: (1) spreading rumors, falsely reporting dangers, epidemics, police situations, or deliberately disrupting public order in other ways..."

in addition, there is also a provocation clause under article 26. that is, “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 also be fined not more than five hundred yuan; if the circumstances are more serious, he shall be detained for not less than ten days but not more than fifteen days, and may also be fined not more than one thousand yuan. : (4) other acts of provocation and trouble.”

lawyer zhang bingyao explained that the reason for relying on the provocation clause is mainly because the supreme people's court and the supreme people's procuratorate have made it clear in the "interpretation of several issues concerning the application of laws in the handling of criminal cases using information networks to commit defamation and other criminal cases" that "...fabricated false information, or who knowingly spreads false information on information networks, or organizes or instructs people to spread or cause trouble on information networks, causing serious disorder to public order, shall be punished in accordance with article 293, paragraph 1 (4) of the criminal law. according to the provisions of item ), the crime of “picking quarrels and provoking troubles” will be punished. “in reality, some public security organs will impose public security penalties on those who meet this situation, but the degree does not reach the level of crime.

lawyer zhao liangshan said that in accordance with the provisions of article 25 of the public security administration punishment law, in order to determine that the perpetrator fabricated facts to disrupt public order, three constituent elements must be met: first, objectively, the perpetrator spread rumors; second, in terms of harmful consequences , the perpetrator’s behavior of spreading rumors disrupted public order; third, in the subjective aspect, the perpetrator’s subjective intention.

how to understand the abstract concept of "public order"? lawyer zhao liangshan believes that the "public order" stipulated in article 25, item 1 of the public security administration punishment law should be interpreted as "the stability and tranquility of public life", and its core normative field is the actual order in public places. however, given that we are currently in a period of rapid development of the internet, in judicial practice, judicial organs will expand their interpretation of "public order" to include "cyberspace order".

lawyer zhao liangshan pointed out that after reviewing relevant cases, it is not difficult to find that the police almost all impose administrative penalties based on the following elements: the perpetrator subjectively spreads false information for personal gain (traffic) and to gain attention, resulting in a large number of forwarding and relative disrupting the order of cyberspace.

"but there is a clear difference between 'bragging' and spreading rumors. first of all, the two are different in subjective purpose. 'bragging' aims to show off and exaggerate one's abilities to satisfy one's own vanity, while spreading rumors aims to satisfy self-interest , was bewitched by economic interests and disrupted social order; secondly, from a harmful point of view, 'bragging' has no public harm, let alone disrupts public order, while spreading rumors is harmful to a certain extent and will cause public panic and real society. the chaos of order.”

lawyer zhao liangshan emphasized that "bragging" may not be illegal or constitute rumor-mongering, but if "bragging" is for personal gain (traffic), causing a large number of reposts and disrupting the order of cyberspace, then "bragging" will change its flavor and become alienated. spread rumors. once "bragging" escalates into spreading rumors, it is illegal and will face legal sanctions.

▲information and pictures according to icphoto

—②—

punished for spreading rumors that "it's snowing in xi'an"

why is it causing concern?

lawyer yuan yulai pointed out that the main purpose of public security management penalties and administrative penalties is education, and "punishment for the sake of punishment" should be avoided. in recent years, the ministry of justice has also emphasized "no punishment for first offenders", that is, if the first offense is violated and the harmful consequences are minor and corrected in a timely manner, administrative penalties may not be imposed.

lawyer yuan yulai said that whether the false information spread by the parties has caused serious consequences of disrupting public order should be an important criterion for whether to impose penalties. for example, how to judge whether information such as “it’s snowing in xi’an today” disrupts public order is a problem. in addition, it is also worth considering whether the parties have subjective malice to disrupt public order.

in the "hefei house expansion joints" incident, the person involved said that "cracks appeared in high-rise buildings after the earthquake." if it is just an individual who feels suspicious and hopes to attract everyone's attention, it should not be considered malicious.

"if the party concerned does have the subjective intention to spread rumors, it may indeed violate the public security administration punishment law. however, if the party concerned makes amends and eliminates the consequences, this should also be taken into account and no punishment will be given or a lighter punishment will be given." lawyer yuan yulai said.

lawyer zhang bingyao also said that as the saying goes, "bragging is not illegal," this shows that proper "bragging" is also a necessity in people's lives. people are required to verify the truth of what they say before speaking, and there must be no untrue words. some are forced to make things difficult for others.

articles 25 and 26 of the public security administration punishment law and their interpretations include expressions such as disturbing public order and causing serious disorder of public order. whether "bragging" is illegal, the boundaries should include whether the behavior contains subjective malice and whether it causes harmful consequences, that is, whether it causes public disorder.

lawyer zhang bingyao pointed out that the core reason why the public expresses concern about being punished for spreading rumors such as "it's snowing in xi'an" and "they are among the first to ride on the ferris wheel" is that they may think that these remarks are not enough to cause too much harm to public order. big impact.

"this requires the public security organs to be cautious when imposing penalties in similar situations. that is, in addition to whether the content is true, further verification is required to see whether the relevant behavior disrupts public order, and whether there is a causal relationship between the behavior and the result. do not rough enforcement will be punished with one penalty," said lawyer zhang bingyao.

red star news reporter wang yucheng