Di Wu
To penalize refusal to perform the obligation to securely manage information networks, the illegal use of information networks or aiding criminal activities relating to information networks and to maintain normal network order, the Supreme People’s Court and the Supreme People’s Procuratorate promulgated the Interpretations on the Application of Law in Handling Illegal Use of Information Networks or Aiding Criminal Activities Relating to Information Networks (the “Interpretations”). The Interpretations provide details about disruption of computer information systems, refusal to perform obligation to securely manage information networks and the illegal use of information networks. The Interpretations are highlighted below:
1. Clarification regarding the definition of network service providers.
Providers of network access, domain name resolution, and other information network access, computing, storage, and transmission services; information issuance, search engines, instant messaging, online payment, online reservation, online shopping, online games, live streaming, website construction, security protection, advertising and promotion, app stores, and other information network application services; e-government, communications, energy, transportation, water conservancy, finance, education, healthcare and other public services provided through information networks are all to be regarded as “network service providers” in the context of the Criminal Law with respect to refusing to perform the obligation to securely manage information networks.
2. Defining massive dissemination of illegal information and serious consequences.
The scope of “massive dissemination of illegal information” under the Criminal Law as a result of the failure to perform the obligation to securely manage information networks is defined as follows: Over 200 illegally broadcast video files; over 2000 pieces of illegal information in addition to the illegally broadcast video files; the proportion of illegally disseminated information meets the relevant threshold despite not meeting either of the above two quantity requirements; illegal information is disseminated to over 2000 user accounts; illegal information is disseminated to cumulatively at least 3,000 groups cumulatively or social networks of over 30,000 followers; or the illegal information has been cumulatively viewed at least 50,000 times.
In addition, the following are deemed “serious consequences” under the aforementioned result of the failure to perform the obligation to securely manage information networks in the Criminal Law is defined as follows: Over 500 pieces of location information, communications, credit information or property information leaked; over 5,000 pieces of user information, such as residence information, communications records, health and physiological information, trading information and other information which may affect personal or property safety, leaked; over 50,000 pieces of user information other than the user information set forth in the preceding two paragraphs are leaked; the proportion of leaked information meets the relevant threshold despite not meeting any of the above three quantity requirements; deaths, severe injuries, mental disorders or kidnapping of others is resulted from such leaks; major economic losses are created; or serious disruption of the social order is resulted.
Secondly, the following shall be deemed as a “serious” loss of evidence in a criminal matter for failure to perform the obligation to securely manage information networks under the Criminal Law if evidence for crimes against national security, terrorist activities, organized crime, corruption or bribery is lost; if evidence for a criminal case which may result in imprisonment of up to five years is lost; or if evidence for criminal case has been lost several times to the extent that the criminal proceedings have been seriously undermined.
Finally, the following are considered “other serious circumstances” in the refusal to perform the obligation of securely managing information networks under the Criminal Law if the vast majority of user logs are not retained or the obligation to verify the users’ real identities has not been performed; if rectification has been ordered several times in two years but none is made resulting in the information network services being primarily used for criminal activity; if the information network services and facilities are being used to carry out cyber attacks which has resulted seriously affected production and livelihood; if the information network services are being used for crimes against national security, terrorist activities, organized crime, corruption, bribery or other major crimes; and that the information networks used to provide public services of state organs or communications, energy, transportation, water conservation, finance, education, and medicine are damaged with severe impact on production and livelihood.
3. Setting down how the illegal use of information networks and aiding information network criminal activities is determined as well as aggravating circumstances.
Websites and network groups set up to engage in criminal activities or are primarily used to conduct illegal criminal activities after they are set up shall be regarded as “websites and network groups used to conduct criminal activities such as fraud, teaching criminal methods, production or sale of prohibited or controlled items.”
Use of information networks to provide links, screenshots, QR codes, account passwords and other guides for accessing services shall be deemed as “release of information” under illegal use of information networks.
A serious violation of illegal use of information networks shall be as follows: The use of a website fraudulently representing itself as a state organ or financial institution to conduct illegal criminal activities; setting up at least three websites to conduct illegal criminal activities or websites with an aggregate of over 2000 registered accounts; setting up at least five network groups to conduct illegal criminal activities or network groups with an aggregate of over 1000 accounts; releasing over 100 pieces of illegal information in websites; transmitting illegal information to over 2000 user accounts; transmitting illegal information to network groups with an aggregate of 3000 members; using social networks with an aggregate of over 30,000 followers to transmit relevant illegal information; gaining illegal proceeds of over RMB10,000; or if a repeat illegal use of information networks occurs after having received administrative sanctions within the past two years for illegal use of information networks or aiding criminal activity on information networks.
In addition, a serious violation of providing aid to criminal activity on information networks shall be found in the following cases: providing assistance to more than three targets; providing account settlement payment of over RMB 200,000; providing over RMB50,000 in funding via placement of advertisements; gaining illegal proceeds of over RMB10,000; providing aid to criminal activity of information networks a second time after having received administrative sanctions within the past two years for illegal use of information networks or aiding criminal activity on information networks; and if serious consequences resulted from the criminal activity to which aid was provided.