Cyber violence governance on digital platforms: criminal compliance and public-private co-governance

Longyin Yang

doi:10.54097/tetr2333

Authors

Longyin Yang

DOI:

https://doi.org/10.54097/tetr2333

Keywords:

online violence, platform liability, criminal compliance, binary co-regulation.

Abstract

Cyber violence is endangering the order of cyberspace with the characteristics of depersonalization and de-accountability, and the governance of digital platforms is facing challenges such as lagging response, lax implementation and conflict of interest. Platforms, as providers of online services, have a natural technological advantage and should be responsible for the governance of public cyberspace. There is an urgent need to establish a detailed criminal compliance plan to reduce the criminal compliance risk due to online violence through the whole process of prevention beforehand, timely disposal during the incident, and reflection after the incident, and a positive incentive function can be expected. In addition, the prudent involvement and appropriate intervention of public power are key elements in the governance of online violence. Under the framework of binary co-regulation, the public and private sectors complement each other and dynamically synergize to make up for the inadequacy of the current legal regulation.

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References

The types of offenses listed in the guidance also include "malicious marketing hype through cyberviolence", which is not cyberviolence per se, but an extension of cyberviolence.

Article 253 of the Criminal Law originally stipulated that the offenses of selling or illegally providing citizens' personal information and of illegally obtaining citizens' personal information are offenses. Illegal Acquisition of Citizens' Personal Information was special subjects, i.e., they were limited to State organs or financial, telecommunication, transport, educational, medical, and other units and their staff. Amendment (IX) to the Criminal Law has changed the scope of the above two offenses to include the following Offences The criminal subjects of the above two offenses were originally limited to state organs or units of finance, telecommunication, transport, education, and medical care and their staff, and have been expanded to general subjects and units.

See the Cybersecurity Law of the People's Republic of China: Article 12 Any individual or organisation using the Internet shall abide by the Constitution and the law, comply with public order, respect social morality, shall not jeopardise cybersecurity, and shall not use the Internet to engage in activities that endanger the security, honour and interests of the State, incite subversion of State power or overthrow of the socialist system, incite secession of the country or undermine national unity, advocate terrorism or extremism, disseminate violent, obscene and pornographic information, fabricate and disseminate false information that disrupts economic order and social order, and infringe upon the reputation, privacy and intellectual property rights and other legitimate interests. , promote ethnic hatred and discrimination, disseminate violence, obscene and pornographic information, fabricate and disseminate false information to disrupt the economic and social order, and infringe upon the honour, privacy, intellectual property rights and other legitimate rights and interests of others.

See Zhou Guangquan, "The Establishment of the Positive Criminal Law Legislation View in China", in Legal Studies, 2016, 38(04):23-40.

See: [U.S.] Philip Weller, "Effective Compliance Programs and Corporate Criminal Proceedings", translated by Wan Fang, in Finance and Economics Law, Vol. 3, No. 3, 2018, p. 144

See: Compliance Management System Requirements and Guidance for Use (GB/T35770-2022).

See Yu Chong, "The Delimitation of Criminal Liability for the Inaction of Network Service Providers under the Vision of "Dichotomy", in Contemporary Jurisprudence 2019, 33(05):13-26.

See Li Benchan et al., eds: Compliance and Criminal Law: An Examination from a Global Perspective, China University of Political Science and Law Press, 2018 edition, p. 232

There are controversies in the academic community about the division of this evaluation, such as Zhang Mingkai in the article "On the Crime of Helping Criminal Activities in Information Networks" in which he rejected the theory of independence of accomplices, and believed that the nature of the crime is not the formalization of helping criminals, but rather, the sentencing rules of helping criminals. In Politics and Law,2016,(02):2-16.DOI:10.15984

See: Amendments to the Criminal Law (IX), formally implemented on 1 November 2015; Interpretation of Key and Difficult Issues in the Interpretation by the Supreme People's Court and the Supreme People's Procuratorate of the Interpretation of Several Issues Concerning the Application of the Law in Handling Criminal Cases of Illegal Use of Information Networks, Helping Criminal Activities in Information Networks, etc., released on 25 October 2019

Kristen E. Eichensehr, Public- Private Cybersecurity, Texas Law Review, Vol. 95:467, p. 468 (2016).

The Red Flag Doctrine: emphasises that when it is clear that an OSP knew or should have known of the existence of illegal or infringing content on its platform, it should take the necessary measures to prevent the distribution of such content. Under the DMCA, if an OSP has actual knowledge or it is clearly inferred from the facts (i.e., a red flag) that copyright infringement is occurring, they will lose the protection from liability afforded by the safe harbor doctrine.

See Zhu Xiaoyan, "From content regulation to ecological regulation: the reshaping of platform obligations in the governance of online violent information", in Journal of Nanjing University (Philosophy-Humanities-Social Sciences), 2024, 61(01):76-91+163-164.

See Chen Ruihua, "The Basic Principles of Effective Compliance Management", in Journal of Shanghai University of Political Science and Law (Rule of Law Series), 2024, 39(01): 14-31. DOI: 10.19916.

Alex Lemaire, "La régulation équitable des plateformes", in Xavier Delpeche (dir.), L'émérgence d'un droit des plate-formes, Dalloz, 2021, p. 48.

Vgl. Frank G. Schmidt-Husson, in:Christoph E. Hauschka (Hrsg.), Corporate Compliance, Verlag C.H. Beck, 2007, §7 Rn.2 ff; Metin Konu, Die Garantenstellung des Compliance-Officers, Duncker & Humblot, 2014, S.44

See: Measures for Compliance Building, Assessment and Review of Case-Related Enterprises (for Trial Implementation), published by the General Office of the All-China Federation of Industry and Commerce, in conjunction with the General Office of the Supreme People's Procuratorate and nine other units and nine other departments, April 2022

See Jing Lijia, "Rethinking and Debugging the Public-Private Partnership Governance Model of Cyber Violence," in Jianghan Forum, 2023, (05): 136-144.

See Jing Lijia, "System Construction of Personal Information Protection Compliance", in Legal Studies, No. 4, 2022.

See Office of the Central Committee for Network Security and Informatisation: Guiding Opinions on Further Strengthening the Work of Reporting Online Infringement Information. [EB/OL]. (2023-09-15) [2024-04-17]. https://www.cac.gov.cn/2023-09/15/c_1696347685563097.htm

See Sun Jin, "Public Regulation of Digital Platforms' "Choose One or the Other" Behaviour under the Antimonopoly Law", in Journal of Political Science and Law, 2024(02):51-62.