During the critical period of epidemic prevention and control, it is very important to be scientific and orderly in accordance with the law. On February 11, 2020, the Adjudication Committee of the Jiangsu Provincial Higher People's Court deliberated and adopted the Guidelines for the Trial of Criminal Cases Related to the Prevention and Control of the Novel Coronavirus Pneumonia Epidemic (hereinafter referred to as the "Trial Guidelines").

Article 24 of the Trial Guide stipulates: "Where network service providers fail to perform their information network security management obligations as prescribed by laws and administrative regulations, and refuse to make corrections after being ordered to take corrective measures by the regulatory authorities, resulting in a large amount of false or illegal information related to the epidemic, they shall be convicted and punished as the crime of refusing to perform information network security management obligations in accordance with the provisions of Article 286-1 of the Criminal Law." ”

1. What is a network service provider?

According to the Interpretations of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases Involving the Illegal Use of Information Networks and Assisting Information Network Criminal Activities (hereinafter referred to as the "Judicial Interpretations on Information Network Crimes"), it provides "network access, computing, storage, and transmission services such as network access, domain name registration and resolution" or "information publishing, search engines, instant messaging, online payment, online reservations, online shopping, online games, online live broadcasting, website construction, security protection, and advertising promotion." , information network application services such as app stores" or "public services such as e-government, communications, energy, transportation, water conservancy, finance, education, and medical care provided by information networks" belong to the category of "network service providers".

Network service providers include two categories, namely Internet access service providers and Internet content service providers. The former is a provider of dedicated lines, dial-up Internet access and other services for end users, while the latter includes Sina, Sohu, WeChat, Douyin and other providers that provide users with news, information, materials, audio and video and other content services.

2. Two major preconditions for criminalization

(1) Failure to perform information network security management obligations

The sources of network security management obligations of network service providers are mainly laws and regulations such as the E-Commerce Law, the Cybersecurity Law, the Measures for the Administration of Internet Information Services, and the Regulations on the Protection of the Right of Information Network Transmission. Specifically, the security management obligations of network service providers include implementing network security management systems and technical measures for security protection, promptly discovering and disposing of illegal information, and backing up and retaining online information and network log information records.

(2) The regulatory department orders corrections but refuses to make corrections

Internet information, telecommunications, public security, and other departments that undertake information network security oversight duties have the right to order network service providers to take corrective measures in the form of notices ordering rectification or other documents. If an enterprise receives a rectification notice from the relevant department, the effective implementation of the rectification notice from the relevant department will provide it with a firewall to prevent relevant legal risks.

Whether a network service provider constitutes a "refusal to make corrections" shall be judged by comprehensively considering factors such as whether the regulatory authorities' order for corrections has a basis in laws and administrative regulations, whether the corrective measures and time limit requirements are clear and reasonable, and whether the network service provider has the ability to take corrective measures as required. If the network service provider has exhausted the means of rectification, but is indeed limited by objective factors and cannot meet the requirements of the regulatory authorities, then it should not be held responsible.

3. Criteria for designating mass dissemination

The threshold for constituting "causing a large amount of illegal information to be disseminated" is not high, once it leads to the dissemination of more than 200 illegal video files; or causing the dissemination of more than 2,000 illegal information other than illegal video files; or cause the dissemination of illegal information to more than 2,000 user accounts; or causing the actual number of clicks on illegal information to reach more than 50,000, all of which are circumstances that cause a large amount of illegal information to be disseminated. Therefore, large Internet enterprises should be more vigilant, improve the network security management system, and promptly discover and deal with false and illegal information related to the epidemic.

Fourth, be a "gatekeeper" of network security

In the critical period of epidemic prevention and control, network service enterprises must not only play the role of "information service personnel", but also act as "gatekeepers" of network security. When rumors are planted on the wings of the Internet, they spread faster, have a wider impact, and cause greater harm to society. The majority of network service enterprises need to improve their awareness of network security risk prevention and control, strengthen network security risk monitoring, and once network security hidden dangers and network security incidents occur, they must be discovered as soon as possible, immediately reported and dealt with in a timely manner, and timely debunk rumors and spread positive energy through their own platforms and influence. While network service enterprises do a good job, netizens must consciously do not believe in rumors, do not spread rumors, and do not spread rumors, so that we can work together to fight the "epidemic"!

(This article is translated by software translator for reference only.)