Obscene videos posted in a chat group: administrators who look away can be jailed
Three administrators of a QQ group with 447 members took no action while other members uploaded 221 obscene video files and images, and a court in Yangshan, Guangdong, convicted them of disseminating obscene material, sentencing one to a year and the other two to ten months. Under the 2010 judicial interpretation, the creator, administrators and principal disseminators of an online group used mainly for obscene material face that offence once the group reaches 30 members or serious consequences follow, and the same applies to an administrator who simply permits or acquiesces in the postings.
Case summary
A news story headed "group member uploads obscene video, administrator jailed" has recently trended on Weibo and set off wide discussion.
The facts were these. Between 2016 and 2017, Xie, Mao and Liu joined a QQ group called "same-sex private group" at different times, and shortly after joining all three were made administrators by the group owner. Between 3 July and 4 September 2017, Mao and other members uploaded a large number of obscene images, obscene videos and links to obscene videos to the group, including as many as 221 obscene and unlawful audio-visual files. The group had 447 members and 12 administrators, so the scale of dissemination can readily be imagined.
On 24 August 2018 the Yangshan County People's Court of Qingyuan, Guangdong, held that the three administrators had taken no action while members uploaded large quantities of obscene images, videos and links to the group, and had failed in the duties of an administrator, and convicted each of them of disseminating obscene material, sentencing them to between ten months and one year. Mao was sentenced to one year, and Xie and Liu to ten months each.
Many readers were puzzled by the decision: why should this lead to a criminal sentence?
The law
Article 3 of the Interpretation (II) of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues concerning the Specific Application of Law in the Handling of Criminal Cases of Producing, Copying, Publishing, Selling and Disseminating Obscene Electronic Information by Means of the Internet, Mobile Communication Terminals and Audio Information Services (Fa Shi [2010] No. 3) provides that where a group established through the internet is used mainly for disseminating obscene electronic information and has 30 or more members or causes serious consequences, the creator, the administrators and the principal disseminators are convicted and punished for disseminating obscene material under Article 364(1) of the Criminal Law.
Article 364(1) and (4) of the Criminal Law of the People's Republic of China provide that a person who disseminates obscene books, periodicals, films, audio-visual material, pictures or other obscene material, where the circumstances are serious, is sentenced to criminal detention, public surveillance or fixed-term imprisonment of not more than two years, and that a person who disseminates obscene material to a minor under the age of 18 is punished more heavily.
Here the group had as many as 447 members and 221 obscene and unlawful audio-visual files, which would undoubtedly produce large-scale dissemination of obscene electronic information among members and between groups and involved considerable social harm. As managers of the group, the owner and administrators should genuinely perform their supervisory duties, review the content of the group in good time, and are obliged to stop members from posting obscene videos. Where the creator or an administrator permits or acquiesces in the posting of obscene videos by others, the administrator is not a joint offender with the principal disseminator but is to be convicted and punished for disseminating obscene material. The convictions of Xie, Mao and Liu were therefore well founded, and not in the least unjust.
The internet is not outside the law: what should group owners and administrators do?
As long ago as 23 January 2018 the Cyberspace Administration of China issued the Provisions on the Administration of Information Services of Internet Groups. The Provisions require the creator and administrator of an internet group to carry out group management responsibilities, that is, whoever creates the group is responsible for it and whoever manages it is responsible for it, and to regulate conduct and the posting of information in the group, while members taking part in exchanges in the group should observe the relevant laws and regulations and interact in a civilised and rational manner. Internet groups here means groups of every kind, such as WeChat groups, QQ groups, Weibo groups, Tieba groups, Momo groups and Alipay group chats, so owners and administrators carry a heavy responsibility.
Obscene videos are far from the only thing that may not be freely circulated in an internet group. Others include politically sensitive topics, rumours of every kind, so-called internal materials, military materials, documents concerning State secrets, material involving pornography, drugs or gambling, news about Hong Kong, Macao and Taiwan not released by official websites, videos of dubious origin purporting to show police misconduct or insults to police, and other information that breaches the relevant laws and regulations.
Where a group owner or administrator sees such unlawful information in a group under his management and is able to warn, deal with and remove it in good time, that person's responsibility may be reduced or eliminated. If such steps are taken and the problem persists, the owner or administrator may report the matter to the competent authorities or to the network service provider. By discharging the duties of managing and supervising an internet group in this way, owners and administrators can avoid being held legally responsible.