Research On Criminal Law Regulation Of Network Speech

Compared with traditional speech,online speech has richer content,more diverse expression channels and wider dissemination range.Online speech can be a separate expression of words,sounds,pictures,videos,etc.,or a fusion expression of all the above-mentioned methods.In recent years,with the rapid development of the Internet and the popularity of self media,self media has entered the era of unprecedented popularity.On February 3,2021,China Internet Network Information Center(CNNIC)released the 47 th statistical report on China’s Internet development(hereinafter referred to as the report).According to the report,by December 2020,the number of Internet users in China had reached 989 million,and the Internet penetration rate had reached 70.4%.As a new carrier of speech,Internet technology has not only brought great changes in the mode of communication,but also profound changes in the psychology of expression.Unlike the past "silent majority",people have channels to speak freely to the outside world,and even eager to speak and express their thoughts and thoughts.Based on the powerful communication power,diverse forms,real-time response speed and interactivity of the network,the influence of network speech has swept every corner of the world and become a milestone in the development of freedom of speech.Based on the characteristics of wide,convenient and rapid network,online speech has unparalleled appeal and influence of traditional speech,and has more prominent values,such as diversified realization of personal values,wider promotion of democratic politics,more efficient pursuit and discovery of truth,and more transparent and effective realization of fairness and justice.Although Internet speech has many democratic and social values,it is still necessary and legitimate to regulate some illegal speech by criminal law.In terms of necessity,problems in national security often begin with speech,ideology and guidance of public opinion.It is very likely that there will be speeches endangering national security such as divulging state secrets,spreading terrorist speech and inciting subversion of political power in the network.Some extremists have established many anti-government and anti party websites abroad,It has constantly issued statements to overthrow the "rule" of the Communist Party,and even instigated innocent people to participate in extreme violence such as self Immolation,assault on state organs,robbery or murder,which seriously threatens public security and the safety of people’s lives and property.Network illegal speech may also disrupt social and public order and infringe on citizens’ individual rights.With the development of the Internet,it is no longer just a simple information "market",but a second space for people to study,live and work.It is no exaggeration to say that modern people live in two spaces-the real world and cyberspace.These two spaces interact and integrate with each other,and a "double-layer society" is taking shape.The disorder of cyberspace order is bound to affect the order in real space and damage the interests of individuals,society and the state.For example,Internet rumors about public events emerge one after another,which directly affects people’s choice of behavior patterns in real life.Internet Illegal speech infringes on citizens’ personal privacy and reputation,so that in reality,the parties suffer from severe depression and even suicide.It can be seen that cyberspace order is not an ethereal intangible object,but can effectively affect and affect people or things in this space."Cyberspace order disorder" can be used as the standard of criminalization,but at the same time,we must take into account the standard of criminalization in real space.The reason why criminal law can regulate network speech is that network speech is a kind of "behavior",not a kind of "secret" thought.Whether adopting the theory of result worthless or behavior worthless,the criminalization of network speech has its theoretical basis.Network bad speech can not only lead to the infringement of legal interests or danger,but also show "evil" in its own behavior.In addition,the rank of national interests and public interests is higher than the individual right to freedom of speech.In case of conflict between the two sides,it is reasonable to give priority to the protection of the former,which is in line with the choice of the common interests of all citizens.At present,China’s criminal law only has the crime of "fabricating and deliberately spreading false information",which is specially used to regulate network speech,and is limited to the content of "false danger,epidemic situation,disaster and police situation" in network speech.In recent years,legislation and judicial practice tend to regard cyberspace as a real public space.Therefore,in theory,the crime of regulating traditional speech in criminal law is also applicable to online speech.At present,China’s only judicial interpretation dedicated to regulating some illegal Internet speech is the interpretation of the Supreme People’s court and the Supreme People’s Procurator ate on several issues of applicable law in handling criminal cases such as defamation through information network(hereinafter referred to as the interpretation of Internet defamation).The judicial interpretation came into force on September 10,2013.Among them,exploratory explanations are made for "public places" and "public order",and it is recognized that network illegal speech is also applicable to some traditional crimes,such as "defamation","provocation","damage to business reputation,commodity reputation" and so on.Criminal law is the last line of defense to maintain the rule of law.When moral condemnation,civil means or administrative means can be used to regulate online speech,there is no need to use criminal means.Criminal law and public power can enter only when non criminal law is not enough to suppress the harm of illegal speech on the Internet.At the beginning of the rise of online speech,China was obviously inexperienced in dealing with the surging online public opinion.During this period,we mainly controlled online speech by means of strict crackdown,deletion of posts,encirclement,pursuit and interception.Even some places used public power to create a series of wrong cases of "crime for words" and "inter provincial pursuit".In recent years,China’s concept of rule of law,legislative technology and judicial practice have been constantly updated,and has accumulated a lot of experience in dealing with,guiding and governing online speech.In judicial practice,the proportion of cases in which illegal Internet speech is recognized as a crime is not high.On the whole,China’s judicial organs are cautious about criminalizing Internet speech.However,there are still a few controversial cases of criminalization of Internet speech in judicial practice.The reason for the controversy shows that there is a fuzzy zone in the standard of criminalization of Internet speech in China.For example,the relative principle of legislation and lack of system,the connotation and standards of laws are vague,and the concepts and standards of local judicial organs are not unified.The "network" characteristic in the network speech crime also brings us legislative and judicial challenges,such as whether the "network" can be regarded as the constituent elements of lawlessness,the diversification of criminal imputation subjects,the alienation of the degree of lawlessness of crime and so on.From the perspective of dogma,this thesis analyzes the criminal law regulation of online speech,focusing on the normative structure and judicial identification of this kind of crime.From the perspective of protecting legal interests,when identifying the legal interests infringed by online speech,we must identify the legal interests in combination with the infringed object in the real world and adhere to the constitutional interpretation;In terms of "essential act" and "harmful act",we should study the two elements."Expression behavior" refers to the three communication forms of network original speech,network forwarding speech and Internet users’ interactive speech,which affect crime and non crime.If the perpetrator fabricated the speech of "illegal content",but as long as there is no communication act of "expression",it can not constitute a speech crime.Both the criminal law of the People’s Republic of China(hereinafter referred to as the criminal law)and the interpretation of Internet defamation stipulate that the formation of speech crime requires "communication behavior",and how to quantify the three forms of "communication behavior" into the standards in the sense of criminal law has always been a difficult problem in the judicial practice.In addition,most of the academic research on online speech crime attaches importance to the behavior of "publication",but often ignores that "illegal content" is the core of online speech crime,which determines the quality of crime and punishment;In terms of harmful results,the harmful results caused by online speech crime are "substantial results"(i.e.actual infringement facts)and "substantial danger"(i.e.actual dangerous state).Different from other types of crimes,the harmful results caused by online speech are often intangible and spiritual,rather than physical and material(of course,the material loss caused by mental loss is not excluded);From the perspective of responsibility elements,the key point to grasp crime and non crime is "subjective malice"."Malice" is not a simple subjective and empirical judgment,but a deconstruction in the legal sense,which is in line with the normative evaluation of criminal law.Like traditional speech,network speech is a cultural phenomenon based on a certain range of people,society and countries,with specific social and national attributes.Similarly,the criminal policy adopted for online speech will vary over time.For example,during major public events,the regulatory means and intensity adopted for the corresponding online speech will be more than usual.Of course,the premise is to comply with the provisions of the criminal law and the moral feelings of the public.According to the substantive division standard of "normative essence" and "harmful attribute" of cyber crime,this thesis divides cyber speech crime into three types: Cyber incitement and propaganda type,cyber fabrication and dissemination type and cyber defamation type.These three kinds of cyber speech crimes infringe on national legal interests,social legal interests and personal legal interests respectively.Of course,there are both emphases and intersections of legal interests.Due to the differences in historical traditions,political culture,national conditions and ideas,citizens in each country have different understanding and acceptance of freedom of speech,and different countries have different criminal regulations on online speech.Taking the United States and Germany,two countries with early Internet start and relatively mature development,as examples,this thesis studies the choice of criminal regulation of online speech.Every country has its own special history,culture and national feelings.We cannot learn from the so-called principle of absolute freedom of speech in the United States,nor can we copy the concept of "defensive democracy" in Germany.However,the United States concentrates the constitutional interpretation power of the speech boundary in the hands of a few experienced justices,provides compliance with speech review for local courts through classic cases,and gives higher tolerance to high-level speech,as well as Germany’s strict control of Nazi speech,characterizing hand and behavior as speech expression We can refer to the principles of increasing the responsibilities of Internet service providers and the appropriate,necessary and interest measurement of the protection of freedom of expression.To sum up,China’s criminal law regulation of online speech should change the legislative concept and build a complete system.Only based on national security,public order and the interests of others can we regulate online speech,and we should take the "two track theory" and "two-stage theory" as the guidance,take the measurement of legal interests as the core,strictly enforce judicial interpretation and clarify the standard of criminalization.The first thing to consider is the concept of constitutionality,which takes the protection of freedom of speech as the principle and the restriction of freedom of speech as the exception;Secondly,according to the principle of proportionality,when regulating citizens’ online speech,priority should be given to exhausting the means of civil and administrative responsibility.Only when the effect of special prevention and general prevention can it be regulated by criminal law.Even if criminal law regulates online illegal speech,we should adhere to the principle of penalty modesty.The judiciary should exercise enough restraint and caution in criminalizing Internet speech and introduce the unconstitutional review into handling cases.Finally,freedom of speech on the Internet is a basic right granted by the constitution to citizens,which can be guaranteed through constitutional relief.While regulating online speech,criminal law should also play the function of protecting online freedom of speech,such as adding relevant charges of violating citizens’ online freedom of speech,judicial relief and so on.