Application of the criminal law to the digital environment
Effective control by governments on the availability of pornography seems quite impossible, especially in the digital age, when online pornography can spread far and wide via websites, emails, or peer-to-peer networks. Experience outside mainland China has shown that the regulation of online pornography raises different challenges to preventing its circulation offline. Instead of applying strict ratings to adult publications or zoning to shops selling adult materials, there has been greater emphasis on industry self-regulation and on parental guidance, including the use of filters to prevent children accessing online pornography (Fenwick and Phillipson 2006: 647—57).
In 2000, the standing committee of the National People’s Congress, the PRC’s legislature, issued the Decision on the Protection of Internet Safety, stating for the first time that the CL is also applicable to crimes committed online (NPCSC 2000). Serving as a legislative interpretation, the 2000 Decision specifically mentioned that online criminal activities include the construction of obscene websites or web pages, the provision of hyperlinks to obscene sites or locations, or the dissemination of obscene books, periodicals, motion pictures, audiovisuals, or pictures via the Internet. It further stipulates that the commission of any such acts in an online environment, if found not to be liable under the CL, the entities and people responsible will be punished or disciplined in accordance with the LAPPOS or other administrative rules.
In addition to legislative interpretations, mainland China also has a practice of issuing judicial interpretations to provide detailed explanations to existing legislation or to tackle unforeseen problems. Indeed, judicial interpretations have been issued from time to time to update the exact quantities of the obscene publications that qualify as ‘serious cases’ and ‘especially serious cases’ in the relevant CL provisions.
Further detailed guidance, in the form of a judicial interpretation, was jointly issued in 2004 by the Supreme People’s Court and the Supreme People’s Procurate, specifying how to apply the CL provisions banning obscene articles in an online environment, and on mobile and other electronic communication devices (SPC and SPP 2004). The 2004 Judicial Interpretation clarifies that the phrase ‘any other obscene articles’ in Article 367(1) of the CL does cover electronic messages sent by the Internet and mobile devices, including online audiovisuals, electronic publications, photos or articles (SPC and SPP 2004, Article 9). The 2004 judicial interpretation also delineates the types and amount of online obscene articles or activities that would make any individual or entity liable for the relevant offences stipulated in the CL. In early 2010, the Supreme People’s Court and the Supreme People’s Procurate jointly issued a second judicial interpretation on online pornography (SPC and SPP 2010). One emphasis of the 2010 judicial interpretation is to break the chain providing financial support for obscene websites. It also tackles the related issues of placing advertisements on obscene websites and providing billing services for such websites.