The basic stance of the criminal law governance of online violence

The dilemma presented by the governance of online violence is related to the problem of how to effectively govern a complex society. The social and contemporary nature of the problem of online violence determines that the criminal law governance of online violence should not only focus on the perspective of criminal law, but must reasonably position the role of criminal law in the framework of social governance. Focusing on insulting and defamatory remarks in online violence, the author attempts to explore the direction in which the current legal mechanism, its criminal law, and corresponding theories need to be developed in order to adapt to the structural changes of society in the Internet era and achieve effective governance of online violence.

The basic characteristics and remedies of traditional verbal violence

Verbal violence in traditional offline society and the handling of verbal violence at the level of criminal law have a basis in social reality. First of all, from the perspective of the victim-victim relationship, traditional verbal violence almost occurs between acquaintances who have a specific relationship, and is manifested as individual-to-individual aggression. Secondly, from the perspective of the scope of communication, due to the limitations of media and methods, the traditional scope of verbal violence is relatively limited, usually limited to a specific time and space. Thirdly, from the perspective of the scope and degree of harm, the victim is specific, and the corresponding speech generally does not endanger social interests while infringing on the rights and interests of specific individuals, and the degree of harm is relatively controllable. Finally, from the perspective of relief channels, it mainly relies on private relief rather than public relief. Neither the initiation of a civil tort lawsuit nor the initiation of a criminal private prosecution procedure constitutes a major obstacle to the injured party's rights protection.

The certainty and controllability of traditional verbal violence makes it not necessary for the law, especially the criminal law, to expand its involvement. Legal accountability and remedies exist only as special channels and are based on private enforcement mechanisms. First, from the perspective of the relationship between private remedies and public remedies, private remedies constitute a general routine, while legal remedies exist as exceptions. Second, the right to initiate legal accountability and remedies is vested in a private person, and whether to initiate the corresponding procedure depends on the independent decision of the injured party, and the injured party has the right to terminate the procedure at any time during the process. Third, whether it is through civil tort relief or through criminal litigation to pursue liability, it adopts a retrospective perspective, focusing on the conduct that has already occurred. For this reason, civil tort litigation is based on the principle of redressing the damage, while criminal litigation adopts a punitive rather than preventive stance.

The traditional handling of verbal violence does not rely on the law, but is rooted in the way people interact in the offline society, and the presence space is equivalent to the social space. The system of civil tort and criminal private prosecution based on the private rights model is a remedial measure that is in line with the existential characteristics of the field it regulates. At the same time, the private power model adopted in the governance of traditional verbal violence in criminal law is related to the absence of "society" in the classical legal system, and also related to the setting of the role of the government at that time.

Online violence is the embodiment and root cause of social repression

The emergence of virtual cyberspace has greatly affected the basic structure of social space and the interaction mechanism between people. The "presence" and interaction of a large number of users can easily lead to a systemic effect similar to a black box, that is, chaos and emergence, which is not only easy for private issues to be publicized, but also easy to form a wave or tsunami-like exponential spread. At the same time, as an integral part of social space, there will inevitably be power structures and dominance relationships in cyberspace. The generation of cyber violence is directly related to the structural characteristics of cyberspace and the interaction mechanism of netizen groups.

Contemporary social theory is keenly aware that individuals are not only threatened by the political power of the state, but also face the danger of repression from society. Online violence is essentially a manifestation of social repression. The sociality here not only means that the perpetrator is the anonymous public, and with the help of social media communication, but also means that online violence is rooted in the domination of the social system, bringing about a crisis of rationalization similar to Weber's theory, resulting in individual freedom being swallowed up by systematic rationality and trapped in the domination of systemic power, falling into the iron cage of rationalization. On the one hand, the generation of cyber violence is related to the technological empowerment and anonymous operation mechanism in the Internet era, and the technological empowerment under the anonymous operation mechanism itself will bring new threats to individual freedom. On the other hand, the intensification of online violence is related to the failure of the political, economic and legal systems to reasonably solve the corresponding social problems.

The disconnect between online violence and the legal mechanism of the private rights model

The essential attribute of cyber violence is the suppression of individuals by social systemic forces, which belongs to a new form of domination relationship. First, from the perspective of the victim-victim relationship, online violence mainly occurs between strangers, which is manifested as a verbal attack on individuals on the Internet by a self-organizing group, which is not only dynamic and uncertain in the scope of the victim, but also in an obviously unequal position between the two parties. Second, from the perspective of the scope of communication, with the help of the media of social media, cyber violence is easy to quickly become a trend in a very short period of time, producing diachronic effects that transcend regions and even national borders, showing extremely distinct time and space extension. Third, from the perspective of the scope of harm, in addition to the infringement of the legitimate rights and interests of specific individuals, online violence often affects important public legal interests at the same time. In terms of the degree of harm, online violence is far more harmful than traditional verbal violence. Fourth, from the perspective of remedial channels, it is difficult for the injured party to rely on self-reliance to protect its own rights and interests, and it is also difficult to effectively pursue responsibility at the legal level.

Since cyber violence represents the infringement of individuals by the systemic forces of society, there will be a corresponding disconnect between the legal remedy mechanism and the basis of social reality. Whether it is a civil tort lawsuit or a criminal private prosecution procedure, the issue of proof has become an unbearable burden for individuals to protect their rights through the law. What's more, the dilemma faced by victims is that remedial measures cannot eliminate the social impact, and are simply not enough to compensate for the infringing consequences caused by cyberviolence. The legal mechanism of the private rights model focuses on the ex post remedies of individual cases, which will lead to the lack of prior regulation and prevention of online violence, and it will be more difficult to effectively protect public interests. The dilemma of dealing with online violence also reflects the fact that the dichotomy between public law and private law cannot be sustained. This dichotomy is challenged by the lack of a "social" dimension in the construction of the classical legal system.

The direction of the development of legal mechanisms in the governance of online violence

It is necessary to consider how to deal with cyber violence in criminal law in the triadic structure of "state-society-individual". The state, represented by public power, has not only a negative obligation not to interfere excessively with the private sphere and corresponding freedoms of the individual, but also a positive obligation to protect the individual from undue encroachment by social power. The negative obligation of the state to the individual is the main concern of traditional public law, which responds to the scenario of the state as a possible aggressor; The positive obligations of the State towards the individual have come to the fore in the wake of the rise of "society", dealing with situations in which society is a possible aggressor. The State's duty of positive protection requires the State to take positive measures to protect individuals from undue violations of social rights. The relevant response measures are manifested in the active empowerment of vulnerable individuals on the one hand, and the imposition of various compliance obligations on social entities on the other.

The transformation of the legal system from a dualistic structure to a ternary structure and the emphasis on the dual protection obligations of the state represent the overall development trend at the level of the basic framework of social governance. The implications are: first, in view of the fact that society itself has become the source of infringement of individual freedom in cyber violence, the legal mechanism of the private rights model is unable to provide effective remedies, and it is necessary to adopt a legal mechanism dominated by public remedies. Second, the focus of the legal mechanism, which is dominated by public remedies, needs to focus on the setting of preventive measures, rather than on the pursuit of responsibility and compensation after the fact. Finally, in the name of modesty, the position of requiring the criminal law not to intervene in online violence as much as possible is questionable, and it is necessary to appropriately expand the scope of criminal law intervention and strengthen the investigation of the criminal responsibility of the perpetrator. The argument against the modest expansion of the criminal law on the grounds of a threat to freedom of expression is questionable. It should not be argued that the state and the platform do not need to fulfill their positive protection obligations to individuals because they have failed to fulfill their negative protection obligations.

Corresponding adjustments to the legislative and judicial levels of the criminal law system

The governance of online violence needs to adopt a risk regulation method that focuses on pre-prevention. This kind of ex-ante prevention requires that attention be paid to the combination of the preventive mechanism of the legal system with the preventive mechanism of other governance means, and to the coordination and coordination between different links within the legal system. It is necessary to consider the introduction of domain law, that is, the introduction of specific legislation on top of legislation, so as to form a systematic mechanism that can have an integrated effect, including ex ante regulation and ex post accountability. Legislation on the offences of insult and defamation also needs to be considered for corresponding amendments. It is difficult to fundamentally solve the challenges faced by the relevant crimes by simply relying on the path of interpretation, that is, to re-understand the provisions on the handling of complaints, and it is more reasonable to adopt legislative amendments. Consideration may be given to providing for two levels of statutory punishment in two paragraphs, with serious circumstances set up as a lawsuit, giving victims the right to choose private prosecution or public prosecution on their own; where the circumstances are especially serious, apply the legally-prescribed range of increased punishment and handle it in accordance with the public prosecution procedures.

From the perspective of judicial application, it is necessary to follow the functionalist interpretive stance and integrate the general preventive factors in criminal policy into the process of interpretation, so as to effectively enhance the guiding role of criminal and criminal norms as behavioral norms. Based on this, three inferences can be drawn: First, the criminal law's crackdown on online violent crimes should be treated differently according to the scene involved and the target of the act. In cases involving the public domain or public figures, the intervention of criminal law must be restrained and prudent; In the case of the private sphere and ordinary individuals, the protection of the personal rights and interests of the injured party by the criminal law needs to be strengthened. Second, in the absence of legislative amendments to the provisions of the current Criminal Law on the crimes of insult and defamation as crimes of personal prosecution, consideration may be given to understanding the "telling" in "handling only after complaining" to include both private prosecution and public prosecution, and giving the injured party the right to decide whether to choose whether to pursue public prosecution or private prosecution, with a view to enhancing the certainty of criminal sanctions while strengthening the protection of individual rights and interests. Third, on the issue of how to limit the scope of the subject of accountability and how to judge the nature and extent of the criminal law of the act, it is necessary to make targeted adjustments to the specific issues related to the legal doctrine on the basis of taking into account the punishable and punishable nature.

This article is reprinted from Rule of Law Daily-Rule of Law Network