【Text/Observer Network columnist Xu Wenhai】
Recently, the famous table tennis player Zhang spread the actress's privacy video incident caused a great sensation, soon the focus began to be very loose to all levels, vulgar, "fan protector" some, take the opportunity to brush traffic is a lot more, no wonder finally the Central Political and Legal Commission Chang An Jian needs to give everyone a focus: find out whether there are illegal crimes, find out whether there are rumors and slander, find out whether there are fish in troubled waters.
When focusing on whether there is a crime or not, most people focus on whether Zhang is really involved in gambling, and this point does not have much room for discussion when further investigation is required. On the contrary, judging from the whistleblower's exposure of the loan contract and the direct quotation in his so-called judicial materials, Zhang, as a witness, clearly stated that he had taken private videos and photos during the relationship, and he had also shown a paragraph of the above video to the creditor. The informant's such a tough attitude and the act of posting an IOU make us stand from the perspective of presumed that these two paragraphs are indeed the original text in the judicial judgment, to see whether Zhang has the possibility of violating the crime on the issue of private videos.
We can split Zhang's behavior into two parts: whether it can be filmed or not, and whether it can be passed on to others.
The question of "can you film" formed the basis of the entire incident, and many netizens were reprimanding Zhang for shooting private videos. However, whether it is Article 1033 of the Civil Code (invasion of others' privacy) and Article 42, Item 6 of the Public Security Administration Punishment Law (acts of secretly photographing and disseminating others' privacy), the premise of illegality is limited to the lack of "explicit consent of the right holder". Therefore, as long as both parties agree and there is no forced or secretly filming, it is inappropriate to directly evaluate the voluntary shooting behavior of both parties in a negative legal way. This was reflected in the Hong Kong nude photos scandal that year, and Chen was not only not found guilty but also regarded as a victim, based on this reason.
Therefore, the core of the problem naturally falls on "whether it can be passed on to others", and the act of "disseminating" and "providing" is precisely the main point of the law. Combining the various articles of the law, we find that the main possible crimes that can be criminalized for "disseminating" and "providing" are the following possible crimes: the crime of disseminating pornographic materials or the crime of disseminating pornographic materials for profit; Involving the crime of infringing on personal information.
Zhang Jike (Infographic)
According to article 367, paragraph 1, of the Criminal Law: ""Pornographic materials as used in this Law refer to books, periodicals, films, video tapes, audio tapes, pictures and other obscene materials that specifically depict sexual acts or explicitly promote pornography. However, this definition is obviously not quantified, and it is obvious that there is no uniform standard for the tolerance of people with different ideas to treat obscenity. We use more forms similar to objective proof of subjectivity and result proof of purpose to argue whether it is obscene material.
Thus, the two offences relating to obscene materials, the crime of dissemination of obscene materials and the criminalization criteria for the crime of disseminating obscene materials for profit, are objectified by the degree of dissemination. Article 1 of the Interpretations of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Law in Handling Criminal Cases Involving the Use of the Internet, Mobile Communication Terminals and Audio Stations to Produce, Reproduce, Publish, Sell, and Transmit Obscene Electronic Information stipulates:
(1) Making, reproducing, publishing, selling, or disseminating 20 or more video files such as pornographic films, performances, animations, etc.;
(2) producing, reproducing, publishing, selling, or disseminating more than 100 obscene audio files;
(3) producing, reproducing, publishing, selling, or disseminating more than 200 obscene electronic publications, pictures, articles, short messages, and so forth;
(4) Production, reproduction, publication, sale, or dissemination of obscene electronic information that has actually been clicked on more than 10,000 times;
(5) Publishing, selling, or disseminating obscene electronic information in the form of membership, with more than 200 registered members;
(6) Using obscene electronic information to collect advertising fees, membership registration fees, or other fees, and unlawful gains of 10,000 yuan or more;
(7) Although the quantity or amount does not meet the standards specified in subparagraphs (1) to (6), it meets more than half of the standards of two or more of them;
(8) Causing serious consequences.
Only if the above conditions are met in quantity, the crime of disseminating obscene materials for profit is constituted. In addition, the crime of disseminating obscene materials requires more than twice as much as Article 1. Therefore, in general, videos under articles 3, 6, and 7 that are commemorative by individuals, or that are not disseminated to unspecified groups of people, or that are not widely disseminated, are less likely to be considered obscene.
In particular, with the further opening of ideas, the characterization of so-called pornography, which does not involve specific depictions of sexual acts, becomes even more difficult to grasp. As far as this case is concerned, firstly, from the expression of the whistleblower, the description of the intimate video and photos does not automatically point to a specific depiction of sexual acts, and second, even if it falls into this scope, Zhang's communication behavior has neither spread to an unspecified number of people nor led to serious consequences. Here, it is prudent to consider that it may not fall within the scope of offences involving the dissemination of pornographic materials.
Is it possible that such a dissemination and provision fall under the crime of infringing on personal information?
Zhang Jike said that he would sue the reporter who broke the news, and the picture is a screenshot of Li Weiao's personal WeChat public account
Article 1 of the Interpretations of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in the Handling of Criminal Cases of Infringement of Citizens' Personal Information stipulates that "citizens' personal information" as provided for in Article 253-1 of the Criminal Law refers to all kinds of information recorded electronically or otherwise that can identify a specific natural person alone or in combination with other information or reflect the activities of a specific natural person. Judging from the report of the actress involved in the case and the imprisonment of the creditor, it is clear that these videos and photos are specific to the woman. However, not all personal information that can be identified as a natural person falls under the crime of infringing on personal information, and the personal information provided for in Article 1 of the aforementioned judicial interpretation includes name, ID number, communication contact information, address, account password, property status, whereabouts, etc., and does not include the video involved in this case.
Further, article 253 of the Criminal Law also requires serious circumstances to trigger the conditions for imprisonment. Article 5 of the Interpretations of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in the Handling of Criminal Cases of Infringement of Citizens' Personal Information stipulates that "the illegal acquisition, sale or provision of citizens' personal information shall be found to be "serious circumstances" as provided for in Article 253-1 of the Criminal Law:
(1) Selling or providing information on whereabouts and trajectories, which is used by others to commit crimes;
(2) Knowing or should know that others are using citizens' personal information to commit crimes, selling or providing it to them;
(3) Illegally obtaining, selling, or providing more than 50 pieces of whereabouts information, communication content, credit reporting information, or property information;
(4) Illegally obtaining, selling, or providing more than 500 pieces of citizens' personal information such as accommodation information, communication records, health and physiological information, transaction information, and other items that may affect personal or property safety;
(5) Illegally obtaining, selling, or providing 5,000 or more pieces of citizens' personal information other than those provided for in items 3 and 4;
(6) The quantity does not meet the standards specified in Items 3 to 5, but the relevant quantity standards are reached in aggregate according to the corresponding proportion;
(7) Unlawful gains of 5,000 yuan or more;
(8) Selling or providing others with citizens' personal information obtained in the course of performing duties or providing services, and the amount or amount reaches more than half of the standards provided for in items 3 through 7;
(9) Having previously received criminal punishments for infringing on citizens' personal information, or having received administrative punishments within two years, and illegally obtaining, selling, or providing citizens' personal information;
(10) Other serious circumstances.
Judging from this provision, personal information does not include the videos and photos involved in this case. Therefore, Zhang's behavior may not fall within the scope of the crime of infringing on personal information.
The non-application of the two types of crimes involving the dissemination of the crime of providing does not mean that Zhang can completely exonerate himself, from the description of the whistleblower and the extortion case involved in the creditor, we can carry out such a kind of thinking and questioning based on the general simple concept of the rule of law.
Imagine what further action you would do when you, as a creditor, were pursuing a claim from your debtor and your debtor was unable to pay? Most likely, you will ask him, is there a house to mortgage? Or can your parents help you pay it back? Or do you have any friends and relatives who can move it for you?
In other words, how could Zhang, as the debtor, provide the creditors with videos and photos of the actresses involved in the case purely out of a communication mentality, especially out of a sharing mentality that is not for profit? Even if it is not an initiative to ask the creditor to try to ask his friend, it is most likely not forced by the creditor to provide it, but more of an initiative after the creditor asks for it. After all, the possibility that the creditor knew from the very beginning that Zhang had a video of the actress involved in the case and wanted to blackmail it by himself was not easy to accept from a common sense point of view.
In other words, there is room for doubt as to whether Zhang was really just a witness in the extortion case involving the creditor. After all, you want to say that Zhang showed the relevant video to the creditor out of showing off after handing over the glass, so the creditor poured Zhang a drink, took advantage of his drunkenness to unlock Zhang's fingerprint and sent the video to himself, and then blackmailed the actress involved in the case, this situation generally exists either in the bar examination questions or in Hong Kong legal dramas.
More likely, if Zhang voluntarily provides videos and photos and offers to try it out if he is under the recovery of the creditor, it may constitute an act of extortion and instigation. Or if the creditor asks for the video to be given to him, and Zhang takes the initiative to provide the video after he asks for the debt, there is also the possibility that it constitutes extortion and help.
However, why in the handling of the creditor's extortion case, the status quo is only to position it as a witness, returning to the whistleblower's written expression to try to speculate the answer: "As a witness, Zhang clearly stated that he had taken private videos and photos during the relationship and that he had shown the creditor a piece of the above video", either the creditor did indeed obtain the video and photos from Zhang through illegal means, or because the victim himself did not make corresponding claims against Zhang, In addition, the relevant processing department determined that no further investigation was required as to whether it involved a criminal offense.
However, extortion is not a private prosecution case, the victim's understanding or does not advocate the maximum impact on sentencing. Of course, it may also be that the creditor alone committed this case, and the case itself is indeed outside the aforementioned common rational presumption. The real situation may still be as An Jian, head of the Central Political and Legal Commission, said: Find out whether there are any violations and crimes, find out whether there are rumors and slander, and find out whether there is fishing in troubled waters. Looking forward to whether the subject of this violation of the crime is not limited to Zhang, the creditor and the whistleblower.
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