Social Sciences in China, 2018

Vol. 39, No. 2, 2018

Criminal Law Boundaries for Freedom of Speech in the Online Era

(Abstract)

Liu Yanhong

Demarcating the boundary between the constitutional right to freedom of speech and online speech crime is a major task before Chinese judiciary. In defining speech crime, we need to draw distinctions between facts and opinions; public and private affairs; and subjective and objective reality. Under the reasonable belief rule, “subjective reality” must be treated as justifiable cause. Given the technological applications and social nature of online media, internet service providers are only obliged to be neutral; they must not indiscriminately be deemed to be guilty of being accomplices or of the crime of nonperformance. In litigation involving speech crime, criminal proceedings must, in principle, be launched on the basis of the actual or presumed wishes of the victim. When a speech act seriously jeopardizes social order and the national interest but the victim is unable to determine whether to lay a charge, a direct public prosecution may be carried out. Finding someone guilty of “seriously jeopardizing law and order and the national interest” must be based on real, material disruption of order and on the fact that the suspect acted deliberately with no legitimate purpose. Minor speech crimes must not be indiscriminately subjected to fixed-term imprisonment, and social media tools serve routine purposes and should not be confiscated without good reason.

Keywords: freedom of speech, online speech crime, online charges handled only upon complaint, criteria for public prosecutions