has recently experienced some extremely bad phenomena on many video platforms.
this person is the biggest stain!
The three cats at this time have been exhausted by this kind of person, physically and mentally exhausted.
Xiaopozhan is the last pure land of the entertainment circle, we should not do this, it will only cause fire.
Regarding this aspect, I also checked some relevant legal information
1. Fact description
A is a freelancer who has published several articles on the Internet platform. A few days ago, there was a sudden online article, accusing a series of articles of A that a large amount of content was plagiarized from the creation of other authors. At present, the article has not been removed from the online platform.
Problem description:
1. Constitutive elements of defamation;
2. Liability (criminal, administrative, and civil) that the slanderer may bear;
3. Is the online platform liable?
2. Criminal responsibility of the perpetrator of defamation
(1) The general elements of the crime of defamation
The crime of defamation is stipulated in Article 246 of the Criminal Law of the People's Republic of China and is a case of private prosecution. Non-identity crimes, general subjects can constitute this crime. The core behavior is fabricating facts out of nothing and disseminating them, or disseminating them knowingly fabricated facts, infringing on the personality and reputation of others. Article 2 of the “Interpretation on Several Issues Concerning the Application of Law in Criminal Cases Using Information Networks for Defamation and Other Criminal Cases” stipulates the incriminating standard:
1. The number of actual clicks and pageviews of the same information reached more than 5000 times; or the number of reposts reached More than 500 times;
2. Caused serious consequences such as mental disorders, self-harm, suicide, etc. of the victim, close relatives;
has been administratively punished for defamation within 3.2 years and slandered others;
4. Others.
Article 3 of the same judicial interpretation stipulates the standards of public prosecution cases for defamation crimes, requiring serious harm to social order and national interests. This case does not apply.
At the same time, in accordance with Article 8 of the “Interpretation on Several Issues Concerning the Application of Law in Criminal Cases Using Information Networks for Defamation,” Article 8 of the Supreme People’s Court and the Supreme People’s Court, if network service providers know that others use information networks to commit crimes such as defamation, they shall provide funds, If the venue, even support, etc. help, it shall be treated as a joint crime. Internet service providers may also constitute criminal offences.
(2) Special requirements for private prosecution cases
Article 246, Paragraph 3 of the Criminal Law stipulates that "If the act specified in Paragraph 1 is implemented through an information network, the victim shall tell the people’s court, but if it is difficult to provide evidence, the people The court can request the public security organs to provide assistance".
The Ministry of Public Security’s "Notice on Handling Insult and Libel Cases Strictly According to Law" (hereinafter referred to as the "Ministry of Public Security Notice") stipulates that "For cases of insult or defamation that are suspected of criminal insults and defamation, the public security The agency should ask about the situation, make a transcript, and transfer the case materials to the people's court with jurisdiction, and at the same time explain to the parties that such cases are private prosecutions and are not under the jurisdiction of the public security organs, and inform them to bring their own lawsuits in the people's courts."
In practice, the standard of proof in criminal cases is relatively high, and there are stricter requirements on the qualifications of evidence and the ability of evidence. What's more, this case is an infringement case based on the use of information networks, which has greater difficulty in obtaining evidence, requiring the victim to bear the responsibility of collecting it alone. The burden of evidence is too hard. According to the "Criminal Law", relevant judicial interpretations, and departmental regulations, the following lines of thinking may be considered for investigating the criminal responsibility of the infringer:
1. Report to the public security organ.
Public security organs will do some evidence collection work before filing a case. According to the "Notice of the Ministry of Public Security", the public security organs should ask the situation, make transcripts, and transfer the case materials to the people's court with jurisdiction. According to the regulations, asking the situation and making transcripts is a basic obligation of the public security organs during the review stage before filing criminal defamation cases, and the public security organs shall perform this obligation.
2. File a private prosecution to the people's court in accordance with the law.
Article 246, paragraph 3 of the Criminal Law of the People’s Republic of China has made special provisions on the implementation of defamation through information networks, “If the victim has difficulty in providing evidence, he may request assistance from the public security agency”. In fact, the regulations and the Regulations of the Ministry of Public Security are in line with each other. When the victim is unable to provide evidence, the public security organs have an obvious legislative tendency to investigate and collect evidence.
In terms of specific operations, it can be submitted to the people's court at the stage of filing a case, and the judicial organ may request the public security organ to provide assistance and obtain necessary evidence.
3. Administrative responsibility for defamation
Article 41, Paragraph 2 of the Law on Public Security Administration Punishments stipulates: “Openly insulting others or fabricating facts to slander others... Impose a detention for less than five days or a fine of less than 500 yuan; If the circumstances are serious, they shall be detained for not less than 5 days but not more than 10 days, and may be fined not more than 500 yuan."
According to the "Public Security Administration Punishment Law," on the premise that the network defamation does not meet the criminal incriminating standards, as long as the behavior is committed, the security management punishment can be carried out. In fact, another important significance of investigating as a public security case is to confirm whether the behavior constitutes the incriminating standard of a criminal offence.
The second point of the Regulations of the Ministry of Public Security clarifies that “for those who do not constitute a crime but violate the Law on Public Security Management Punishments, public security mediation shall be used to resolve contradictions and disputes to the maximum extent; if mediation fails, public security management penalties shall be imposed according to law.” It can be seen that when defamation is handled as a general public security case, the evidence formed in the process may be used as the main evidence in criminal private prosecution cases. In contrast, administrative responsibility is of great significance in the process of investigating the responsibility for defamation.
IV. The civil liability of the defamation perpetrator
(1) Whether or not the defamation perpetrator bears criminal or administrative responsibility, it does not affect its civil liability. The general elements of
infringement are fault, behavior, infringement consequences, and causal connection. The main content of the article in this case is to accuse the infringer of plagiarizing others' articles and infringing others' intellectual property rights. If it can be proved that the plagiarism is fictitious, then the subjective fault of the infringer is self-evident.
The infringer’s infringement has no objection, and the specific consequences of the infringement need to be further obtained through network forwarding and clicking on the data to be accurately identified. In fact, the consequence of infringement is a relatively abstract concept compared to other constituent elements, and "damage" is its core. The extension of the concept can be interpreted in a more flexible manner based on the specific circumstances of the infringed. In litigation, it is more critical to be able to provide evidence to convince the court that the infringement has caused the corresponding legal consequences.
(2) Suggestions on handling civil liability
1. First, preserve evidence for infringing articles. Network information is very easy to be modified or deleted. After modification and deletion, network users or network platform operators can also excuse technical conditions and other reasons to be unable to recover. Therefore, the urgent matter is to conduct evidence preservation of network infringement articles through the notary office as soon as possible;
2 . In accordance with Article 36, Paragraph 2 of the Tort Liability Law and Article 5 of the Supreme Law "Regulations on Several Issues Concerning the Applicable Law for the Trial of Civil Disputes on the Use of Information Networks to Infringe Personal Rights and Interests" to issue notices to network service providers , It is clear that this article is an infringing article and should be deleted.
3. Without knowing the author of the specific infringement article, in accordance with the provisions of Article 4 of the Supreme Law "Regulations on Several Issues Concerning the Application of Law in the Trial of Civil Disputes on the Use of Information Networks to Infringe Personal Rights and Interests", directly sue the network service provider and request The people's court orders the network service provider to provide the network user's name, contact information, network address and other information.
4. The place where the infringement is carried out includes the location of terminal equipment such as computers, and the place where the infringement result occurs includes the residence of the infringed. Therefore, this case may be under the jurisdiction of the people's court in the place where the infringed is domiciled.
5. Other
(1) The key to whether the infringer can be held accountable in this case lies in the existence of defamation. That is, whether the plagiarism alleged in the article is established. The judgment on this matter must be based on the relevant knowledge products combined with the "Copyright Law" and relevant regulations;
(2) For the same matter that has been investigated by the public security organs, the people’s court will generally follow the principle of “prison before the citizens”. Civil litigation will not be accepted until the criminal case is concluded, and the trial will be suspended even if accepted. However, there are two infringing subjects in this case, one is the Internet service provider, and the other is the writer of the infringing article. It is recommended to report to the police first, regardless of whether it constitutes a criminal case filing standard, the public security organs can investigate. The process of investigating criminal liability and administrative liability is not ideal, and civil litigation can be initiated;
(3) It is actually difficult to investigate the tort liability of network service providers in civil litigation. According to the second paragraph of Article 36 of the Tort Liability Law, the network service provider fails to take corresponding measures after receiving the notification of deletion or blocking, Bear joint and several liability with the infringer for the enlarged part of the damage; if the network service provider knows that the user uses the network service to infringe the civil rights of others, he shall bear the joint liability with the infringer.
In a specific lawsuit, generally speaking, the network service provider will take measures such as blocking and deleting as soon as he receives the notice. In fact, it is difficult for the infringed party to prove the fault of the network service provider’s supervisor. Therefore, the main significance of investigating the infringement liability of the network service provider is to request the court to order the network service provider to provide the infringer's information.
Attachment:
Article 36 of the Tort Liability Law: If network users or network service providers use the network to infringe on the civil rights of others, they shall bear tort liability. If
network users use network services to commit infringements, the infringed party has the right to notify the network service provider to take necessary measures such as deleting, blocking, and disconnecting links. If the network service provider fails to take necessary measures in time after receiving the notice, it shall be jointly and severally liable with the network user for the enlarged part of the damage. If a network service provider knows that a network user uses its network service to infringe the civil rights of others, and fails to take necessary measures, it shall bear joint and several liability with the network user.
Supreme Law "Provisions on Several Issues Concerning the Applicable Law in the Trial of Civil Disputes on the Use of Information Networks to Infringe Personal Rights and Interests"
Article 4 The plaintiff sued the network service provider, and the network service provider defended on the grounds that the suspected infringing information was published by the network user According to the request of the plaintiff and the specific circumstances of the case, the people’s court may order the network service provider to provide the people’s court with information such as the name (name), contact information, and network address of the network user who can determine the suspected infringement. If a network service provider refuses to provide it without justifiable reasons, the people’s court may impose penalties on the network service provider in accordance with the provisions of Article 114 of the Civil Procedure Law.
If the plaintiff requests the addition of a network user as a defendant based on the information provided by the network service provider, the people's court shall grant permission.
Article 5 According to the second paragraph of Article 36 of the Tort Liability Law, if the infringed party sends a notice to the network service provider in writing or publicized by the network service provider, the people’s court shall Determined to be valid:
(1) the name (name) and contact information of the notifier;
(2) the network address required to take necessary measures or relevant information sufficient to accurately locate the infringing content;
(3) where the notifier requires deletion of relevant information reason.
The notice sent by the infringer does not meet the above conditions and the network service provider claims to be exempted from liability, the people's court shall support it.
"Criminal Law" Article 246 [Insult] [Defamation] Openly insulting others or fabricating facts to slander others by violence or other means, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, control or deprivation of politics right.
The crimes mentioned in the preceding paragraph shall be dealt with only if the complaint is made, except for those that seriously endanger social order and national interests. If
implements the behavior specified in the first paragraph through the information network, the victim tells the people’s court but it is really difficult to provide evidence, the people’s court may request the public security organ to provide assistance.
Article 42 of the Law on Public Security Administration Punishments shall be detained for less than five days or a fine of less than 500 yuan; if the circumstances are serious, detained for not less than five days and less than ten days, and may be sentenced to five concurrently. A fine of less than one hundred yuan:
 Welcome to report
to guard the three cats and guard our moral bottom line!
