The Procuratorate of Jing’an District recently granted approval for arrests of 22 suspects who were alleged to have infringed others’ rights by putting videos on a pirated TV App. Sixteen of the suspects were arrested on the crime of copyright infringement and six of them were arrested each on the crimes of copyright infringement and helping criminal activities related to information networks.   

It was found that from 2019 Shanghai Scan Network Technology Ltd. (“Scan”) uploaded a large number of TV series episodes from the US, Japan, Korea, etc. on the platform of DiyiDan APP to receive prepaid membership fees and advertising fees without authorization. It was found in the initial legal audit that Scan published videos of more than 20 thousand episodes on DiyiDan APP and received over 9.92 million RMB membership fees and over 24.26 million RMB advertising fees, totaling illegal profits of over 34.18 million RMB. 

It is not difficult to understand that persons connected with DiyiDan APP who uploaded TV series episodes without their copyright owners were suspected for the copyright infringement crime, but many people were curious about “the crime of helping criminal activities related to information networks”, on which six of the twenty-two suspects were arrested. 

What is the crime of helping in criminal activities related to information networks

It was a new crime included in the Ninth Amendment to the Criminal Law of the People’s Republic of China that started to be implemented on 1 November 2015. Pursuant to Article 287.2 of the Criminal Law, this crime means a serious crime of helping a person who you know will commit a crime by using information networks by giving them internet access or server management, online storage, telecommunication or transmission services or other technical support or helping them in advertising or promotional activities or making or receiving payments, etc.    

As a type of criminal acts, the crime of helping criminal activities related to information networks means serious criminal acts of providing a person who you know will use information networks to commit a crime with technical, promotional or payment services. We studied 103 cases of committing the crime of helping criminal activities related to information networks from 2019 to 2020, mainly including provision of internet or communication technology, advertising, marketing, payment and other services to the person being helped. Details are as follows. 

Type 1: internet technology services related in 35 cases or 34% of the cases, mainly server management, platform setup, data introduction, server rental, software operation and maintenance, account number positioning and change and other services. 

Type 2: communication and transmission technology services related in 13 cases or 13% of the cases, mainly selling phone cards and WeChat numbers, sending fraudulent messages for others, etc.   

Type 3: advertising and promotional services related in 6 cases or 6% of the cases, mainly including ads push, website jump and other services.

Type 4: payment services related in 49 cases or 48% of the cases, mainly using personal WeChat accounts, Alipay accounts, bank cards, etc. to provide payment and other services. 

Subjective elements of the crime of helping criminal activities related to information networks are that the person helping in such activities should know other person’s use of their network technology services in criminal activities. In October 2019 the Supreme People’s Court and the Supreme People’s Procuratorate published the Interpretation of Several Issues Concerning the Application of Laws in Criminal Cases of Illegally Using Information Networks and Helping Criminal Activities Related to Information Networks (“two supreme authorities’ interpretation”), which sets out seven circumstances (1) continuing acting inappropriately regardless of a notice from a regulatory department, (2) failing to fulfill legal obligations after receiving a report, (3) closing a deal at an obviously unreasonable price or in an obviously inappropriate way, (4) providing a program, tool or other technical support for the sole purpose of committing an offence or a crime, (5) frequently using the internet in a covert way, sending encrypted communications, destroying data or taking other measures or using false identity to avoid being regulated or investigated or (6) giving  others technical support or help to avoid being regulated or investigated  or (7) other circumstances, where without proof of the contrary, the person helping in such activities will be deemed to “know” other person’s use of information networks to commit a crime.     

The conviction of the crime of helping criminal activities related to information networks requires “serious circumstances”, in terms of which the two supreme authorities’ interpretation sets out six factors that should be considered when deciding if a person should be convicted of this crime, including the extent of the help given (more than three persons), amounts of money paid (over 200,000 RMB), amounts of money paid for advertisements, etc. (over 50,000 RMB), illegal profits (over 10,000 RMB), maliciousness of the person committing this crime (helping criminal activities related to information networks within two years after receiving an administrative penalty for illegally using information networks, helping criminal activities related to information networks or harming the computer information system security) and criminal activities of the person being helped (causing serious consequences).     

In principle, the crime of helping criminal activities related to information networks means that the person being helped has committed a crime, although there are exceptions. Article 13 of the two supreme authorities’ interpretation provides that “facts that the person being helped has not been caught, legally convicted or at the age from which a person should take criminal liability do not affect the conviction of the crime of helping criminal activities related to information networks if criminal activities of the person being helped are confirmed”. Therefore, if facts about a crime committed by the person being helped are ascertained, the person helping in such crime should take criminal liability even if the person being helped is not legally held responsible for such crime because they are not caught, legally convicted or at the age from which a person should take criminal liability. However, Article 12 of the two supreme authorities’ interpretation provides as an exception that if considering objective conditions it is impossible to found out whether a person being helped committed a crime, the person should be found to have committed the crime of helping in criminal activities related to information networks when it involves a total amount reaching five times levels set out in Items 2 to 4 (Article 13) or causes extremely serious consequences.     

Why Provisions on the Crime of Helping Criminal Activities Related to Information Networks are Important?

Cyber-crimes spread more widely and are more flexible and difficult to regulate considering their virtual features. The crime of helping criminal activities related to information networks is created to offset disadvantages of traditional criminal theories in fighting cyber-crimes.

For instance, traditional theories of collaborative crimes require that accomplices and principal criminals deliberately act together. Accomplices should be aware of the nature, content, consequences, etc. of acts done or to be done by persons they help. In criminal activities on the internet, typical collaborative crimes are hidden with each person involved having their own tasks. Each person involved in these criminal activities are only aware of their own acts, so it is very difficult to prove that they deliberately act together.  

In (2016)Z.0604 X.C.No.1032 case, the defendant Leng sold telephone numbers with call transfer functions on Taobao, which could mislead people who called in. Thirty-nine numbers sold by Leng were used in more than 100 telecommunication fraud cases in a total amount of over 18 million RMB reported by victims in different areas of the country from November 2015 to April 2016. The People’s Court of Shangyu District, Shaoxing held that “the defendant Leng helped other persons who he knew would use information network to commit crimes with communication and transmission services and other technical support in serious circumstances, which should be deemed as the crime of helping criminal activities related to information networks, but a majority of telecommunication frauds in this case were reported by victims and not convicted or punished and this should be considered when deciding punishment to the defendant”.

Based on traditional theories of collaborative crimes, although he knew the purchaser might use phone numbers in illegal activities, Leng didn’t know possible consequences of specific acts and therefore could not be considered as an accomplice of the fraud. In today’s society similar acts are common and could cause great harm to the society and have to be regulated. The crime of helping criminal activities related to information networks is created to offset disadvantages of traditional theories of collaborative crimes. 

The crime of helping information network related criminal activities appeared in a special social background. Its appearance helps keep cyberspace safe and curb the spread of cyber-crimes but is criticized by some scholars because they said the law was a stressed response to cyber-crimes and not taken under legislative advisement. To meet urgent needs to fight cyber-crimes judicial authorities have to care more about results of the attack on criminals than the procedural fairness when using the crime related provisions. Provisions on the crime in the two supreme authorities’ interpretations are a reflection of this problem.    

First, according to Article 11 of the two supreme authorities’ interpretations, legal authorities hold the word “know” in the definition of the crime of helping information network related criminal activities includes “know” or “should know”. If the legal authority has reasonable evidence that the assisting person “should know” the crime, the person will be obligated to present counter evidence or presumed to “know” the crime. Chinese law takes both objective and subjective elements into consideration. It is all right to presume what the suspect thought based on facts, but provisions on deciding if a person “knows” the crime in the two supreme authorities’ interpretations may not agree with subjective elements of the crime in criminal law.   

Subjective elements of the crime of helping information network related criminal activities included in Item 2 of Article 287 of the criminal law mean the assisting person knows other person “will, not might use information networks to commit a crime”. In certain events set out in the two supreme authorities’ interpretations and in some cases decided by judges, the elements are construed in the wrong way when deciding if the assisting person “knows” the crime. For example, in Item 3, Article 11, the two supreme authorities’ interpretations include “hidden access to the internet and encrypted communications” in the events where the assisting person knows other person will use information networks to commit a crime. Hidden access to the internet or encrypted communications can be used in a crime. Also, they can be used for security and privacy reasons while you are legally visiting the internet. It is unreasonable to presume the assisting person, as long as they used hidden access to the internet or encrypted communications, knows other person use information networks to commit a crime.       

Actually, any normal business could be used as a tool in a cyber-crime, of which the assisting person might not be completely unaware. For example, network operators certainly know their internet connection services could be used by fraud criminals, but it is impossible to require network operators stop all these services to prevent fraud and their acts of providing such services cannot be treated as the crime of helping information network related crimes. For this reason, I advise the word “know” in the definition of the crime of helping information network related criminal activities should not be construed as including “know the possibility of....”. People who could be convicted of this crime do not need to know as much as people who could be convicted of a collaborative crime, but should know specific information about the assisted criminal activities.      

Second, some radical scholars believe the crime of helping information network related criminal activities is a type of principle criminal acts in law, not accessory acts, so acts of helping information network related criminal activities in this crime are independent, not dependent on other cyber-crimes. Nevertheless, according to the Ninth Amendment to Criminal Law and Article 13 of the two supreme authorities’ interpretations, in criminal law the crime of helping information network related criminal activities is not a completely independent crime. In principle, the assisting person should not be convicted of this crime unless the assisted person is found guilty of a crime.

Article 12 of the two supreme authorities’ interpretation sets out that as an exception, “if it is impossible to prove that the assisted person has committed a crime due to objective restrictions”, the assisting person could be found as guilty if the amount in dispute meets the criminal eligibility or the consequences are serious. This provision probably violates the principle of no person being convicted of a crime unless otherwise required by criminal law and the principle of no suspect being treated as a criminal.

The provision is ambiguously worded and open to abuse after being put into action. For example, “objective restrictions” are not clearly set out but can be construed in the context as not including the events where the assisted person has not been “captured” or “legally adjudicated”, which are set out in Article 13 and therefore no longer need to be included in “objective restrictions” in Article 12. 

Except the above two events, I can hardly think of other “objective restrictions”. In (2019) G.0126 X.C.No.535 case, which based on current search results is the only case of convicting an assisting person by referring to exceptions to Article 12 of the two supreme authorities’ interpretation, the defendant Meng purchased and resold for profits telephone cards with a falsified identity card and the court held, giving no explanation of “objective restrictions”, that considering Meng deliberately avoided being regulated and did business for prices or in manners that were rather unreasonable, severe attacks were made on telecommunication fraud in Binyang County and the defendant’s cognitive ability, although it was impossible to find out what the assisted person did was a crime, the defendant could be found to have helped the person who he knew would commit a crime through information network.  

Provisions on the crime of helping information network related criminal activities are intended to punish acts of helping other person in criminal activities, so such acts are punishable on the condition that other person’s criminal activities are happening or will happen. In the (2019) G.0126 X.C.No.535 case, legal authorities did not find out whom Meng resold telephone cards to, nor did they investigate whether the cards were used in criminal activities or explain whether there were objective restrictions. Meng was convicted of the crime of helping information network related criminal activities without any facts showing the person who helped him (by purchasing the telephone cards) committed a crime. That conviction did not accord with the original intent of provisions on the crime of helping information network related criminal activities. 

Finally, new provisions on the crime of helping information network related criminal activities have positive effect on fighting increasingly more cyber-crimes, but use of such provisions out of their boundaries could result in universal attacks on criminals and non-criminals, especially when the two supreme authorities stated that if a person has provided a tool or service that might be used in cyber-crimes, it should be presumed that they know there are criminal activities through information network (In fact, many people misuse this way to presume a person’s guilt). According to other provisions, the assisting person could be found as guilty, even when the assisted person could not be found guilty of the crime or the crime itself did not exist. In this sense, any common wrong acts related to information networks, even neural acts of providing cyber services could be deemed as the crime of helping information network related criminal activities.    

Criminal law should be definite and restrained and so are criminal restrictions on acts of helping information network related criminal activities. Excessive expansion of the scope of the crime of helping information network activities to make internet service providers amenable to being punished would have adverse effect on the development of the internet industry and protection of legal rights of companies.