Study on the Determination and the Litigation Procedure Application of the Crime of Cyber Defamation in China

Abstract

In the incrimination standards of “serious circumstance” of the crime of cyber defamation in Chinese criminal law, distorted data should be excluded from the “quantity standard” and the “quantity standard” should be used only as an auxiliary judgment standard. The “social order” and “the state’s interests” involved as the conditions for public prosecution should be correctly defined, and the simple disturbances of cyberspace order and psychological order cannot be recognized as “seriously undermine social order”. As the landing point of many applicable public prosecution situations, the “adverse social impact” cannot be interpreted through the system to arrive at “seriously undermine social order”. In defamation cases against public figures, the public’s right to freedom of expression and supervision should be taken into account, as well as the public figure’s ability to control social resources. In terms of the applications of litigation procedures, a correct interpretation should be made of the principle of “be investigated only if they are sued”, and the responsibility of public security organs to assist in providing evidence should be implemented. For general cases of cyber defamation, the principle of “be investigated only if they are sued” should be sticked with, and when meeting the conditions for the application of the public prosecution procedures, interests should be weighed between the protection of the public interest and respect for the victim’s wishes, so as to achieve an accurate grasp of the state’s right to public prosecution.