Network infringement generally includes infringement of personality rights, property interests, and intellectual property rights. In recent years, there are more and more common violations of personality rights, which are known as "cyber violence". "Cyber violence" also includes infringing on others' reputation, privacy, or impairing their personal rights. This article will tell you, "network violence" caused by infringement, who should bear the responsibility?

Article 36 of the "Tort Liability Law" in China was the earliest provision for network infringement, with the second paragraph being the "prompt rule", also known as the "safe harbor rule", and the third paragraph being the "knowing rule", which is an auxiliary rule of the "safe harbor rule". Later, the Civil Code was promulgated, and according to Article 194 of the Civil Code, network users and network service providers who use the network to infringe upon the civil rights and interests of others should bear tort liability. "If the law provides otherwise, such provisions shall prevail.". From this article, it can be seen that both network users and network service providers are responsible for online violence infringement.

First, network users

"Internet users, as the name implies, are organizations or individuals that use the Internet. If Internet users use the Internet to infringe upon the civil rights and interests of others, their liability for infringement includes stopping the infringement, removing obstacles, eliminating dangers, eliminating effects, restoring reputation, and apologizing. At the same time, according to Article 183 of the Civil Code, if they infringe upon the physical rights and interests of natural persons and cause serious mental damage,", The infringee has the right to claim compensation for mental damage.

Second, network service providers

According to the interpretation of the Civil Code, network service providers include not only technical service providers of service types such as access, caching, information storage space, search, and links, but also content service providers that actively provide content to network users, transaction matchmaking, information publishing, and other services for both or more parties to independently conduct transaction activities on e-commerce platforms. According to Article 23 of the Regulations on the Management of Internet User Account Information, Internet information service providers are entities that provide users with Internet information publishing and application platform services, including but not limited to Internet news and information services, online publishing services, search engines, instant messaging, interactive information services, webcasts, application software downloads, and other Internet services.

(1) Assume joint and several liability with network users for the expansion of losses

Article 195 of the Civil Code stipulates the notification rules for the principle of a safe haven for network tort liability, and the second paragraph stipulates that after receiving the notification, the network service provider shall promptly transmit the notification to the relevant network users, and take necessary measures based on the preliminary evidence constituting the infringement and the type of service; "If necessary measures are not taken in a timely manner, the user of the network shall be jointly and severally liable for the expanded portion of the damage.".

(2) Undertake joint and several liabilities with network users

Article 197 of the Civil Code: If a network service provider knows or should know that a network user has infringed upon the civil rights and interests of others by using its network services, and fails to take necessary measures, it shall bear joint and several liabilities with the network user. The judgment standard of "knowing or should know" can be judged by referring to Article 6 of the "Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Disputes over the Use of Information Networks to Infringe Personal Rights and Interests".

Generally speaking, there are generally the following types of subjects responsible for online violence infringement:

Drafters and publishers of infringing content

For example, in the first instance civil judgment on the network tort liability dispute between Yang Zi and Jin Jian [Case No. (2020) Jing 0491 Min Chu No. 14232], the defendant Jin Jian used a large number of insulting names such as "ugly purple", "silicone purple", and "stinky maggot" in the Weibo involved to refer to the plaintiff, and most of the comments were filled with unwarranted abuse and curses against the plaintiff and its fans, seriously insulting the personal dignity of the plaintiff. Secondly, the content released by the defendant, "# Yang Zi Xiao Zhan # Ugly Zi, let go of the beautiful brother. Without saying that your silicone face matches someone else's beautiful brother, there is no sense of cp at all. We have arranged for him before we started a cooperative hot search, and we really don't know how much blood will be sucked if we cooperate." Through improper statements, we demean the plaintiff's image, and fabricate false facts such as the plaintiff's buying hot search, issuing notices, and marketing acting skills. As an actor, the plaintiff enjoys a certain reputation in society. Once released, the above statements can be quickly disseminated on the Internet, resulting in lower public evaluation of the plaintiff and damage to his reputation. Finally, the court held that the victim's reputation was indeed damaged, the perpetrator's behavior was illegal, there was a causal relationship between the illegal behavior and the consequences of the damage, and the perpetrator was subjectively at fault to determine that the defendant Jin Jian constituted an infringement. The court ruled that the defendant made a written apology to Yang Zi, compensating for economic losses and reasonable expenses totaling 12471 yuan, and providing compensation for mental damage totaling 25000 yuan.

At the same time, according to Article 2 of the "Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Criminal Cases such as Using Information Networks to Implement Defamation," if the actual number of clicks and browses of defamation information reaches 5000 or more times, or the number of forwarding times reaches 500 or more, or causes serious consequences such as mental disorder, self harm, suicide, etc. of the victim or his or her close relatives, it will constitute a crime of defamation. In addition to the crime of defamation, if there are other criminal circumstances, it may also constitute the crime of provoking trouble, the crime of extortion, etc. Although both the crime of insult and the crime of libel are criminal private prosecution cases that can only be handled upon complaint, in July 2020, the case of a Hangzhou woman being rumored about taking delivery of an express delivery occurred, which caused rumors and information to spread rapidly online, seriously disrupting the public order of the online society. After the rumored woman filed a criminal private prosecution in the court, the procuratorial organ recommended that the public security organ file a case for investigation. After a public prosecution by the procuratorial organ, the court sentenced the two defendants to one year's imprisonment and two years' probation. After that, the Supreme Court of Justice announced the 34th batch of guiding cases, and this case was selected as the "defamation case of Lang and He". It can also be seen from this case that if a private prosecution case seriously endangers social order at the same time, the procedure can be changed from private prosecution to public prosecution.

2. Network platform

In the second instance civil judgment on the reputation right dispute between Li Yinya and Tianya Community Network Technology Co., Ltd. [Case No.: (2016) Min 01 Min Zhong No. 1422], the court of first instance held that Tianya Community Network Technology Co., Ltd. confirmed that it had deleted the three posts involved in the lawsuit on August 31, 2015. As the operator of Tianya Forum and blog, it is a network service provider of information storage space. The plaintiff provided evidence to prove that it had sent a letter to the defendant, and the defendant also confirmed the authenticity of the letter. However, the information involved in the case was not deleted until the receipt of the complaint in this case. It can be seen that the defendant failed to perform the obligation of post mortem management within a reasonable period of time, and had faults, which caused the damage consequences of network users' infringement of the plaintiff's reputation rights to expand, and it should bear corresponding tort liability. The defendant argued that the plaintiff did not leave contact information on the notification letter, resulting in the defendant being unable to contact the plaintiff. According to Article 5 of the "Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Disputes over the Use of Information Networks to Infringe Personal Rights and Interests", this notification is not a valid notification. The court of first instance finally ruled that the defendant Tianya Community Network Technology Co., Ltd. published an apology statement to the plaintiff Li Yinya on the homepage of Tianya Community website, Tianya Gossip, and Tianya Blog for 7 days, and paid the plaintiff 10000 yuan of mental damage compensation and 2700 yuan of notarial fees. The court of second instance upheld the original judgment.

3. Large network V

Article 7 of the "Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Disputes over the Use of Information Networks to Infringe Personal Rights and Interests": The people's court shall consider the following factors in determining the fault and extent of the act of network users or network service providers in reproducing network information: (1) the duty of care borne by the reproducing subject that is appropriate to its nature and scope of influence; （2） The apparent extent to which the information reproduced infringes upon the personal rights and interests of others; （3） Whether any material modifications have been made to the reproduced information, and whether the title of the article has been added or modified, resulting in serious inconsistencies with the content and the possibility of misleading the public. That is, the network giant V may be responsible for forwarding infringing information without fulfilling its duty of care.

For example, in the first instance civil judgment on the network tort liability dispute between Li Chen and Hu Dandan [Case No.: (2019) Jing 0491 Min Chu 23553], the court of first instance held that after the Weibo account "tonight after 9:00 pm" published an article containing the comments involved, Hu Dandan reproduced the article and redistributed it in his lawsuit related Weibo, which constituted a reprint of the aforementioned comments. In addition, Hu Dandan also posted his own statement at the top of the reprinted article: "The appearance of the scum male Li Chen is recorded, first horse, then look.". This statement and the aforementioned reprinted article together constitute a complete Weibo content. From the overall picture and text content of this Weibo, in fact, Hu Dandan's aforementioned remarks are personal comments on the reproduced content. Firstly, as a Weibo user with a large number of fans, Hu Dandan belongs to a person with significant influence in the online community, and should bear a higher duty of care commensurate with his identity and scope of influence; Secondly, the content of the article reproduced by Hu Dandan on Sina Weibo refers to the fact that whether others have false pretences that have a significant impact on their personal reputation. Once spread falsely, it has obvious defamatory significance, and it should be spread more carefully; Thirdly, Hu Dandan's own comments, such as "The Story of Li Chen, a scum man," are bound to have an impact on Li Chen, and to a certain extent, lead to misunderstanding by unspecified individuals, reduce Li Chen's social evaluation, and cause damage to his spirit. To sum up, Hu Dandan's reprinting behavior and statements have obvious faults, which constitute an insult and slander to Li Chen. The final court ruled that Hu Dandan continued to apologize on his Weibo account for 30 days and paid Li Chen 10000 yuan for mental damage and 5000 yuan for reasonable expenses, totaling 15000 yuan.

4. Network Water Force

Article 10 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Disputes over the Use of Information Networks to Infringe Personal Rights and Interests: An agreement between the infringee and the network user or network service provider constituting the infringement shall be deemed invalid by the people's court if one party pays the compensation and the other party provides services such as deleting, blocking, and disconnecting links. "If anyone tampers with, deletes, or blocks specific network information without authorization, or prevents others from accessing network information by disconnecting links, and the network user or network service provider who publishes the information requests the infringer to bear the liability for infringement, the people's court shall support it.". "If the act is entrusted to be performed by another person, the principal and the agent shall bear joint and several liabilities.".

Illegal and criminal acts such as paid deletion of posts, false comments, rumor diversion, and fraudulent news media extortion have been committed, misleading the public and seriously disrupting online order. In 2021, the Ministry of Public Security will investigate more than 62000 cases, capture more than 103000 suspect, shut down more than 6.2 million "Internet Water Army" accounts and 1200 websites, effectively purifying the network environment.

5. knowingly slandering others, but also providing funds, venues, technical support, and other assistance to others

According to Article 8 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases such as Using Information Networks to Commit Defamation, anyone who knowingly uses information networks to commit crimes such as defamation, provocation, extortion, illegal business operations, and provides assistance such as funds, venues, and technical support to others shall be punished as a joint crime.

6. News media that seriously misrepresent reports or fail to fulfill reasonable verification obligations

Articles 1025, 1026, and 1028 of the Civil Code also provide special provisions for the infringement of the right to reputation by misrepresentation of news reports. That is, it is illegal for the media to distort or fabricate facts, or fail to perform reasonable verification obligations on seriously untrue content provided by others, or to use insulting words or other acts that undermine the reputation of others. Combining the above provisions, it can be clear that the burden of proof should be borne by the infringer as to whether the reasonable verification obligation has been fulfilled.

To sum up, it can be said that China's provisions on the subject of liability for online violence infringement are relatively comprehensive and clear, but in the specific implementation and determination, there is a situation where local courts have inconsistent determinations. At the same time, China is still continuously introducing typical cases and new regulations to combat online violence. For example, on May 26th this year, the Beijing Internet Court issued typical cases involving minors in online disputes; On June 27, the National Internet Information Office issued the "Regulations on the Management of Internet User Account Information", aimed at implementing the provisions of laws and regulations such as the "Network Security Law" and the "Personal Information Protection Law", improving the network information security and personal information protection system, further defining the bottom and red lines for the registration and use of Internet users and the management of account information by Internet information service providers, and clarifying responsibilities and obligations, Maintain a good ecosystem of cyberspace.