Should the crime of disseminating obscene materials or insult be found for disseminating indecent videos of others in WeChat groups?

Basic facts of the case

At the end of 2018, defendant A XX (male) and victim XX B XX (female) met through Internet social software, and gradually developed into an improper relationship between men and women, during which the two had sexual relations many times, and XX A also secretly recorded a video of the two having sex in the car. Later, because B was worried that her husband would find out, he cut off contact with A. In order to continue to maintain an improper relationship with B, A sent an indecent video of the two having sex to B, so as to coerce B to maintain an improper relationship with him, but did not receive a response from B. In April 2023, A held a grudge and sent an indecent video of him having sex with B and a photo of B's life to the WeChat group of B's community, causing a bad impact on B and his family, and causing B to suffer from dissociative conversion disorder.

The focus of the controversy

The focus of controversy in this case mainly focuses on two issues: First, as to the characterization of this case, should it be determined that it is the crime of disseminating obscene materials or the crime of insult?

Case analysis

(1) Regarding the characterization of this case: 1. Indecent videos are not equivalent to obscene videos in the sense of the Criminal Law. According to Article 367 of the Criminal Law of the People's Republic of China, "pornographic materials" as used in this Law refers to books, periodicals, films, videotapes, audio tapes, pictures, and other obscene materials that specifically depict sexual acts or explicitly promote pornography. The essence of obscene materials is to provoke people's sexual desire for no reason and damage the concept of normal sexual behavior of ordinary people, and its content is obscene and specific depictions of sexual acts or explicit promotion of pornographic and lascivious images (1). In this case, the public security organs issued the "Examination and Appraisal of Pornographic Materials" with reference to the Interim Provisions on the Identification of Obscene and Pornographic Publications issued by the National Press and Publication Administration, holding that the content of the video did not contain specific sexual acts, did not expose specific circumstances such as sexual organs, and was not an obscene video. Therefore, the preconditions for the crime of disseminating obscene materials are not met in this case. 2. The determination of this case as the crime of disseminating obscene materials will produce many drawbacks. Even if the video in this case can be recognized as an obscene video within the meaning of the criminal law, it is not appropriate to convict it as the crime of disseminating obscene materials. First, the crime of disseminating obscene materials is a crime provided for in Chapter 6 of the Specific Provisions of the Criminal Law, and the legal interests it infringes on are mainly the social management order, and in this case, there is a clear victim, and the defendant A's conduct of disseminating indecent videos not only harms the social management order, but also has a serious impact on the victim's social reputation and physical and mental health. If this case is found to be the crime of disseminating obscene materials, it is impossible to evaluate the harm suffered by the victim, resulting in an incomplete evaluation. Second, according to the relevant provisions of the Criminal Law of the mainland, the statutory penalty for the crime of disseminating obscene materials is fixed-term imprisonment of not more than two years, criminal detention or public surveillance. The statutory penalty for the crime of insult is fixed-term imprisonment of not more than three years, criminal detention, public surveillance or deprivation of political rights. According to the theory of imaginary competition, when an act commits several crimes, one felony should be selected and punished, so the punishment of the crime of insult in this case is more conducive to achieving a balance between crime and punishment, and the crime should be deserved. Third, from the perspective of the meaning of modern Chinese words and the concept of popular society, the word "obscenity" means immorality and filth, which has an obvious derogatory meaning (2). Specifically, in this case, the victim has already suffered considerable harm in terms of personal reputation and mental condition, and if the relevant video is identified as an obscene video, it is easy to cause secondary harm to the victim and is not conducive to repairing the damaged social relationship. 3. It is appropriate to find this case to be a crime of insult. The so-called crime of insult refers to the use of violence or other methods to openly belittle or damage the personality of others, or damage the reputation of others, and the circumstances are serious. The development of human society has led to the development of sexual shame and the formation of the principle of non-disclosure of sexual behavior (3). This principle should be followed even if sexual relations occur legally. In this case, XX A posted an indecent video of XX having sex with XX B to the WeChat group of XX B's community, which clearly violated the principle of non-disclosure of sexual acts, openly infringed on XX B's sense of sexual shame, and made the fact of XX B's derailment known to many acquaintances, causing XX B's reputation to suffer serious damage. Judging from the social survey conducted by the public security organs, there are many people in the community where B XX makes a relatively negative evaluation of B XX. From the subjective aspect of the perpetrator, out of retaliation for the victim's unwillingness to continue to maintain an improper sexual relationship with him, XX clearly knew that the act of disseminating an indecent video would cause greater damage to the victim's reputation, and pursued the occurrence of such damage, which was directly intentional. As to whether the case has reached the level of seriousness of the circumstances, it is necessary to consider both the conduct and the consequences. Judging from the conduct, XX A posted XX B's indecent videos and life photos in XX B's community WeChat group, which was highly targeted and vindictive, and the dissemination behavior directly overflowed into cyberspace and had a direct practical impact in XX B's living area, causing great damage to XX B's reputation and heinous circumstances. Judging from the results, A's behavior had a greater impact on B's community, and caused B to suffer from dissociative conversion disorder, mental disorder, and serious consequences. The Supreme People's Procuratorate clearly pointed out in the Guiding Case Yue X Insult Case (Procuratorate Case No. 138): "Where the perpetrator intentionally insults others on the Internet, such as disseminating the victim's privacy or physical defects, for the purpose of destroying the reputation of others or belittling the personality of others, and the circumstances are serious, it shall be found to be the crime of insult." Accordingly, this case should be found to be the crime of insult. (2) Regarding the method of prosecution in this case: 1. The basis and dilemma of the criminal private prosecution. The crime of insult is a typical crime of personal accusation, that is, a crime that is dealt with only after telling. The Criminal Procedure Law of the People's Republic of China includes crimes that are handled only after telling them into the scope of private criminal prosecution cases, that is, the victim should normally file a private prosecution with the people's court for the crime of personal accusation. The main reason why the Criminal Law stipulates the crime of personal accusation is that these crimes are usually relatively minor, occur between acquaintances, and involve the victim's reputation and privacy, and the fundamental purpose is to protect the interests of the victim and to give the victim the right to prosecute crimes that infringe on the interests of the victim to be exercised by the victim himself. This is also the basic basis for some people to argue that the victim should initiate a private criminal prosecution in this case. However, criminal proceedings are a complex process, and victims who accuse themselves often do not have the advantages of the abundant resources of the judicial organs, the professionalism of the personnel, and the coerciveness of the means, so there are generally great difficulties in private prosecution, first, there are problems such as difficulty in obtaining evidence, presenting evidence, and proving evidence (4). Second, in terms of the application of law, due to the lack of professional knowledge and practical experience, victims have considerable deficiencies in the application of procedures, the characterization of the law, and the drafting of documents. In 2022, courts across the country concluded 587 first-instance trials, but only 43 were found guilty (5). As a result, the difficulty of the victim's private criminal prosecution can be seen. 2. The feasibility of applying national public prosecution procedures. The second paragraph of Criminal Law article 246 provides: "The crimes in the preceding paragraph (crimes of insult and defamation, author's note) are to be handled only if they are complained, except where they seriously endanger social order and national interests." Regarding the judgment of "seriously endangering social order", the "Guiding Opinions on Punishing Online Violence Violations and Crimes in Accordance with Law" issued by the "Two Supreme People's Courts and the First Committee" in September 2023 pointed out that the judgment should be made based on factors such as the target of the violation, the motive and purpose, the mode of conduct, the scope of information dissemination, and the harmful consequences, and listed five specific circumstances, such as "causing serious consequences such as mental disorders and suicide of the victim or his close relatives, and having a heinous social impact". Specifically, in this case, XX A carried out insulting acts in a WeChat group for the purpose of revenge, which had a greater impact on XX B's community, and caused XX B to go insane and suffer from dissociative conversion disorder, which met the circumstances of "seriously endangering social order" listed above, and the national public prosecution procedures should be applied, and the procuratorate should initiate a public prosecution. Some scholars believe that for the protection of the victim's right to self-determination, the term "seriously endangering social order" should be strictly interpreted (6). However, from the perspective of judicial practice, the crux of the problem is not that the right of public prosecution improperly inhibits the victim's right of private prosecution, but that the victim's right of private prosecution cannot be fully exercised due to the lack of private prosecution ability, so that his own interests cannot be effectively protected. In this context, in order to fully protect the rights and interests of victims, it is not appropriate to impose strict restrictions on "seriously endangering social order". Of course, when the victim does not seek prosecution, the intervention of the right of public prosecution should be necessary with caution.

Outcome and implications of the case

In the end, the procuratorate prosecuted A for the crime of insult, and considering the relevant circumstances such as A Moumou's voluntary surrender and admission of guilt and acceptance of punishment, it was recommended that the court sentence him to seven months in prison. The court accepted all the charges and sentencing recommendations of the procuratorate. Through this case, we can draw two enlightenments: First, husband and wife should fulfill the duty of mutual fidelity. Article 1043 of the Civil Code clearly stipulates: "Husband and wife shall be faithful to each other, respect each other, and care for each other. "Having a spouse and having sexual relations with another person violates the stipulation that husband and wife should be faithful to each other, violates social morality, undermines monogamy, affects the harmony of husband and wife, and corrupts social customs. On the other hand, it also creates an opportunity for criminals to commit crimes against the reputation of others, such as insults. Second, although cyberspace is a virtual space, it is by no means a foreign place. While enjoying the convenience of the Internet, anyone must also abide by the rules of cyberspace, especially the bottom line of not violating the law. With the promulgation of normative documents such as the "Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases of Using Information Networks to Commit Defamation" and the "Guiding Opinions on Punishing Violations and Crimes of Online Violence in Accordance with Law", a strict legal network for the governance of cyberspace on the mainland is taking shape, and any illegal and criminal acts on the Internet will be punished by law.

Note (1) Zhang Mingkai, Criminal Law (II), Law Press, 2021, pp. 1538-1539. (2) Dictionary of Words and Words: New Modern Chinese Dictionary, Hunan Education Press, 2016, p. 1523. (3) Zhang Mingkai, Criminal Law (II), Law Press, 2021 edition, p. 1538. (4) Shi Yanan, "Legal Analysis of "Private Prosecution to Public Prosecution"", China Criminal Law Journal, No. 1, 2021. (5) Zhou Jiahai, Yu Haisong, and Li Zhenhua, "Understanding and Application of the Guiding Opinions on Punishing Online Violence and Crimes in Accordance with Law", China Applied Law, No. 5, 2023. (6) Lin Wei, "The Determination of "Seriously Endangering Social Order and National Interests": Focusing on the Legislative Purpose of the Crime of Personal Accusation", Application of Law, No. 12, 2013.

Author's Affiliation: Heilongjiang Provincial People's Procuratorate (temporary post of Harbin Acheng District People's Procuratorate);

Source: Rule of Law Daily

Text: Ban Fei Dai Xiaojing