With the advent of the all-media era, especially since the rise of media platforms represented by Weibo and WeChat, the methods of information generation and dissemination have undergone disruptive changes, and everyone has the ability to speak in public spaces. Since the outbreak of the new coronavirus, society has experienced a period of short suspension, and the public has more time to contact online information than before. Therefore, the information transmitted by individuals through the Internet has received unprecedented attention during the epidemic prevention and control period. However, the behavior of some individuals transmitting false information has made the war epidemic work not only on the front line of medical treatment and prevention, but also on the front line of information confirmation. The widespread dissemination of false information in society can cause psychological panic among the public, and seriously affect the normal production and life order.

1. The formation of two-tier society

——Realistic background of high incidence of false information crime

Today, the universal application and in-depth development of the network have made the network a separate space from the real world. People go back and forth between reality and the network, and the smooth progress of real life can no longer leave the network technology, and a dual society that spans between reality and the network has been formed. However, as the American scholar Spinello said: The Internet will open up a new world of creativity and freedom, and it will also become a virtual joyous field of crime and depravity. As March 21, 2020, an article spread on the Internet As the article of My Most Unforgettable Day, this article mainly talks about the large number of cases of concealment of new cases in Wuhan, which makes people wonder whether the epidemic prevention and control has really achieved staged results, causing serious social panic. At 1:43 a.m. on March 22, the epidemic investigation big data and epidemiological investigation team of the epidemic prevention and control headquarters of Wuhan City notified: My most unforgettable day revealed that the newly confirmed cases in Wuhan were not true.

 In the context of a two-tier society, false information can quickly enter the public eye and arouse widespread public attention. Due to the initial stage of the outbreak, the local government of our country concealed relevant information to a certain extent, leading to a lack of credibility. The public spread false news through the social network with a mindful and credible mentality. The public opinion continued to ferment and swell, eventually causing social panic. .

2. The applicable limits of the crime of fabricating and intentionally spreading false information

In order to deal with false information in the society during the epidemic, the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, and the Ministry of Justice jointly formulated the “Opinions on Punishing and Preventing the Crimes of Pneumonia that Prevents New Coronavirus Infection”, which is jointly formulated by the Supreme People’s Court. If the epidemic situation information is disseminated on the information network or other media, or knows to be false epidemic situation information, deliberately disseminates on the information network or other media, and seriously disturbs the social order, according to the second paragraph of Article 291 of the Criminal Law The punishment is punishable by the crime of fabricating or intentionally spreading false information.

Accurate understanding of the constituent elements of the crime directly determines what kind of online rumours and rumors will face criminal punishment. The application of the crime of fabricating or intentionally spreading false information should be grasped from the following points:

First of all, we must accurately define what is meant by fabrication and intentional communication. Fabrication refers to fabrication from out of thin air, and its essential connotation lies in nothing. The essence of fabrication is to create an objective and non-existent false thing, which includes both fabrication and indiscriminate fabrication by the perpetrator, as well as the act of adding oil and adding vinegar to the processing and modification of some information. Dissemination refers to distributing false terrorist information through telephone, language, text, and information networks to make other individuals or organizations aware of the information.

Second, correctly judge the relationship between fabrication and intentional communication. Judging from the provisions of the criminal law, the behaviors of these two crimes include fabrication and intentional transmission. As far as fabrication is concerned, if it is simply fabricated without disseminating false information, it should not be considered a crime. Only by fabricating false information and spreading it to the unspecified public can it constitute a crime. Otherwise, it means that even the act of recording information by individuals may constitute a crime, which is obviously difficult to accept. However, it should be noted that if you know that the fake information you have fabricated is spread by others without being prevented, you should consider it to be subjectively and indirectly intentionally, and constitute a related crime. With regard to intentional dissemination, it means that the actor knows or should know that the information was fabricated by others before dissemination. That is to say, the intentional communicator is not a fabricator of false information, but disseminates the false information fabricated by people.

Again, the accurate identification of online communication behavior. In the cyberspace, it is not difficult to identify the behavior of “self-compilation and autobiography” and indulgence of the spread of false information. However, due to the influence of external factors, it is difficult to identify the false information communicator. There are also forwarders in the process of disseminating false information on the Internet, but not all forwarders can be considered as disseminators of false information. The social hazard of fabricating and disseminating false information comes from the time difference between the dissemination of false information and the disclosure of real information. In the case where some forwarders know that it is false information, they try to use the time difference to spread the false information, so as to achieve the purpose of disrupting social order. For such forwarders, they should consider that their behavior is intentionally spreading false information. Another part of the forwarders who forward false information for novelty or verification of the authenticity of the information, etc., does not have subjective maliciousness, and their behavior is not within the scope of criminal law.

Finally, the determination of seriously disrupting social order. Severe disturbance of social order is the result of the crime of fabricating and deliberately spreading false information, but the legislation does not explain this in detail. In 2013, the Supreme People’s Court published “Interpretations on Several Issues Concerning the Applicable Laws in the Trial of Criminal Cases of Fabricating and Intentionally Disseminating False Terrorist Information”, which clearly explained “seriously disrupting social order”. Based on this, it should be considered that in the case of a higher statutory sentence for the crime of fabricating or deliberately spreading false terror, the standard of judgment for this crime seriously disturbing social order should not be lower than the provisions in the Interpretation.

Regarding the specific application of the overall evaluation criteria such as seriously disturbing social order, Professor Liu Yanhong believes that it can not only be objectively restricted, but also subjectively limited in scope: the overall evaluation elements are intentional knowledge and will Content, only when the perpetrator realizes that the publication of his harmful speech will seriously disrupt the social order and other results that endanger the society, and hopes or allows such a result to occur, and there is no legitimate purpose, only the crime of conviction and punishment Possible.

3. Distinction between the crime of fabricating and intentionally spreading false information and related crimes

According to the Opinions, those who fabricate and intentionally spread false epidemic information shall be punished in accordance with the provisions of the second paragraph of Article 291 of the Criminal Law. However, it should be noted that the crime of fabricating and intentionally disseminating false terrorist information in accordance with the first paragraph of Article 291 of the Criminal Law is closely related to the former.

After the addition of the crime of fabricating and deliberately disseminating false information in the Amendment of Criminal Law (IX), certain difficulties have arisen in distinguishing between the false information of this crime and the terrorist information of the crime of fabricating or deliberately disseminating false terrorist information. The terrorist information such as explosion threats, biochemical threats, and radioactive threats stipulated in the criminal law legislation has the nature of causing public panic, so it is not difficult to judge such terrorist information. However, in 2013, the Supreme People’s Court published the “Interpretation on Several Issues Concerning the Applicable Laws in the Trial of Criminal Cases Concerning Fabricated and Intentional Dissemination of False Terrorist Information”, in which Article 6 states that “false terrorist information” includes false “significant” disasters and epidemics. Information, whether such information can be identified as terrorist information needs to be judged according to the specific circumstances.

The main difference between the two is the content of false information. The crime of fabricating and deliberately disseminating false information includes false epidemic information. In the interpretation, the interpretation uses the word significant to modify the epidemic as a terrorist message. It can be seen that the difference between the two results from the latter's addition of significant which makes the degree of behavioral hazards different. The essence of false terrorist information is that the information has been released, which is enough to scare most people. The Interpretation uses the word significant to modify the epidemic as terrorist information. The determination of significant should be combined with specific false disasters, whether the spread of the epidemic caused or may cause public panic, unrest, or serious impact on social order .

4. Summary

Since the outbreak of the epidemic, society has experienced several waves of public opinion. When using criminal law to impose sanctions on false information, one must be careful to distinguish accurately whether the nature of the conduct is infringing on legal interests. Whether a citizen does not forward false information subjectively and maliciously, or only expresses his own opinions on related matters, it should not be considered a crime. Numerous cases have proved that relying solely on punishment cannot suppress the generation and spread of false information. The fight against the crime of fabricating and intentionally spreading false information is not only dependent on criminal law, but also more importantly, the official disclosure of real information in a timely manner to protect citizens' right to know. Only when real information symmetry is achieved can false information have room for destroying social order.