An 18-year-old woman in Tin Shui Wai, "Nana", was suspected of falling from a high place in her home in Tin Shui Wai because of cross-border cyberbullying on the 26th of last month. Her mother hopes that the Hong Kong and mainland police can cooperate in investigating the incident, and initiate mutual legal assistance between the two places to punish the Internet with law. Bullies, give justice to their daughters.
"Hong Kong 01" interviewed Hong Kong Legislative Council member and solicitor Jiang Yuhuan on "cross-border cyberbullying" and "mutual legal assistance between the two places". She said that she was very sad about Naina's suicide and hoped that her family would be well.
However, she also bluntly said that she also wants to help Nana, but the government has not legislated against cyberbullying, and it is very difficult to give her justice in criminal proceedings. There is no relevant law in Hong Kong, and it is even less likely to initiate mutual legal assistance between Hong Kong and the mainland.
She hopes that the government will immediately legislate against cyberbullying, and Nana will be fair.
"Nana", who was diagnosed with mild depression, had mild autism since childhood. A group of self-proclaimed "toilet girls" attacked her on the mainland online video platform "Bilibili", and finally "Nana" committed suicide on the live broadcast.
Jiang Yuhuan said that there is currently no law in Hong Kong specifically dealing with or regulating cyberbullying, and the Hong Kong police cannot make requests for mutual legal assistance such as investigation and evidence collection to the mainland. He suggested that the Hong Kong government first legislate to prohibit cyberbullying to protect people like "Nana" who are not completely spiritual. Individuals with capacity, as these individuals are often vulnerable to cyberbullying, and civil law is enacted to provide civil remedies for cyberbullies.
"Nana"'s mother, Lei Mu, revealed that the chairman of the Yuen Long District Council and lawyer Shen Haojie told her that although there is currently no law related to cyber violence in Hong Kong, other laws can be used to sue.
At present, the Hong Kong police have taken away Nana's computer and are preparing for further investigation.
She revealed that she expects to return to Shenzhen on the 12th and will consult a lawyer again if she can file a case in the mainland.
Regarding the legislation of the Internet violence law, Lei Mu said that she was worried that she would not be able to wait for that time, and she hoped that the Hong Kong and mainland police would work together to handle Nainai's case while the legislation was being made.
In common law, Hong Kong civil law can claim tort law, and the victim's family can seek civil remedies for "nuisance", "defamation", "intimidation" and "invasion of privacy" in tort law according to the situation of cyberbullying.
The family of "Nana" can harass the damages claim, but because the civil lawsuit may require considerable time and money, and the need to present sufficient evidence to convince the court, it will be a long "road" for the family of "Nana".
If it is judged to lose the case, it is more likely to bear the huge litigation costs of the other party.
Therefore, Jiang Yuhuan believes that it is a very big test for "Nana"'s family to be fair to "Nana" in civil claims.
At present, there is no specific criminal offence against cyberbullying in Hong Kong. According to the existing laws in Hong Kong, most of the laws used to prevent crimes in the real world are applicable to the Internet world.
The Security Bureau stated on September 15, 2021 that any bullying activities, whether online or not, are subject to relevant laws and regulations if they involve criminal offences.
Depending on the circumstances of individual cases, posting inappropriate remarks online may lead to different crimes, such as criminal intimidation or extortion.
However, Jiang Yuhuan believes that the criminal offence of "intimidation" cannot fully regulate cyberbullying.
Without a criminal law against cyberbullying, the Hong Kong police and the Department of Justice cannot have sufficient legal grounds to rule cyberbullying.
She suggested that the government should immediately refer to other common law jurisdictions, including Singapore, the UK and the US, to have laws against cyberbullying.
Hong Kong Special Administrative Region Chief Executive Li Jiachao speaks during a question-and-answer session in the Legislative Council Chamber of Hong Kong July 6, 2022.
(Getty Images)
The Secretary for Security, Tang Ping-keung, said on June 1, 2022 that in the digital age, Internet users are getting younger and younger.
As children and young people's online activities (including learning, socializing and entertainment) increase, they have a greater chance of being exposed to different online crises, such as cyberbullying, sexual harassment, exposure to inappropriate content, etc. Therefore, online safety education is essential for protecting children and young people are very important.
The Law Reform Commission (LRC) is conducting research on the subject of cyber crime, including reviewing existing legislation and other related measures and exploring related developments in other jurisdictions.
The Security Bureau will closely monitor the research progress and recommendations of the Law Reform Commission, as well as the development of online inappropriate content regulation in other jurisdictions.
The statue of Lady Justice stands above the Court of Final Appeal after the opening ceremony of Hong Kong's legal year on January 24, 2022.
(Getty Images)
Regarding the criminal law of cyberbullying, Jiang Yuhuan believes that the Hong Kong Security Bureau should legislate to regulate cyberbullyers and telecommunications service providers, who are there.
She also advocated that telecommunications service providers should protect civil liberties and monitor the chat records of telecommunications services in accordance with the law to prevent the Internet from becoming a "band" of bullies, especially those who are underage and mentally incapacitated.
She emphasized that the current novel coronavirus pneumonia epidemic has made more and more minors take online classes and grow up in the world of the Internet. It is imperative to legislate against cyberbullying.
She mentioned that the Secretary for Security of the Hong Kong Special Administrative Region, Deng Bingqiang, is a Secretary who can do things and accomplish things. She hopes that he can communicate with the Department of Justice about legislation, so that Hong Kong will not have the next "Nana" who is killed by cyber violence.
"In this way, Nana will be able to hold her grudges and not die in vain," she said.
Should the crime of the LRC computer network include cyberbullying?
The Computer Network Crime Subcommittee of the Law Reform Commission issued a consultation paper on "Crimes Relying on Computer Networks and Jurisdiction Matters" on 20 July 2022, making preliminary recommendations on law reforms to address information technology, computer and Internet issues The challenges posed by the rapid development to the protection of individual rights and their potential to be exploited for criminal activities, dealing with five types of crimes that rely on computer networks are: unlawful access to programs or data, unlawful interception of computer data, unlawful interference with computer data , unlawful interference with computer systems, and supply or possession of equipment or data for criminal purposes.
Jiang Yuhuan believes that the computer network crime that the Law Reform Commission will study is not a specific criminal crime of cyberbullying, and hopes that the Security Bureau will immediately legislate to ban cyberbullying. Legislative work on cyberbullying.
Mutual legal assistance between the two places is difficult, and more time and money are invested in criminal and civil cases in the Mainland
Article 95 of the Basic Law stipulates that Hong Kong "may have judicial contacts and mutual assistance with judicial organs in other parts of the country through consultation and in accordance with the law."
In terms of criminal law, the Mainland and Hong Kong have not yet signed an agreement on mutual legal assistance in criminal matters; in terms of civil law, the Supreme People's Court and the Hong Kong SAR Government signed the "On the Mutual Recognition and Enforcement of Judgments in Civil and Commercial Cases by the Courts of the Mainland and the Hong Kong Special Administrative Region" on January 18, 2019. s arrangement".
As mentioned in Article 1, this arrangement applies to the mutual recognition and enforcement of effective judgments in civil and commercial cases between the courts of the Mainland and the Hong Kong Special Administrative Region.
This arrangement is also applicable to the mutual recognition and enforcement of effective judgments concerning civil compensation in criminal cases.
Article 246 of the Criminal Law of the People's Republic of China who publicly insults others or fabricates facts to slander others by violence or other means, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, public surveillance or deprivation of political rights.
Article 293 Whoever commits one of the following acts of picking quarrels and provoking trouble and disrupting social order shall be sentenced to fixed-term imprisonment of not more than five years, criminal detention or public surveillance.
The Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Criminal Cases of Using Information Networks to Commit Defamation, which came into effect on September 10, 2013 (Interpretation), Article 2 The use of information networks to slander others has the following circumstances One of them shall be identified as "serious circumstances" as stipulated in the first paragraph of Article 246 of the Criminal Law:
(1) The same defamatory information has actually been clicked, viewed more than 5,000 times, or forwarded more than 500 times;
(2) Caused serious consequences such as mental disorder, self-harm, suicide, etc. of the victim or his close relatives.
At the same time, Article 5 of the "Interpretation" mentions that those who use information networks to abuse and intimidate others, with vile circumstances and disrupt social order, shall be punished by "picking quarrels and provoking trouble" in accordance with the provisions of Article 293(1)(2) of the Criminal Law. Conviction and punishment.
This means that once the procuratorate has filed a case and the mainland court's judgment is also in favor of "Nana"'s close relatives, he has the right to request the infringer (cyber bully) to bear the tort liability and make relevant civil remedies.
However, Jiang Yuhuan also pointed out that the threshold for conviction in criminal proceedings in the mainland is very high, the legal definition of cyberbullying and related laws are not clear, and it is not easy to convict.
At the same time, a civil lawsuit may require a considerable investment of time and money. "Nana"'s close relatives will put a lot of pressure on the family to hire a lawyer and collect evidence.
She suggested that Hong Kong should make cyberbullying a specific criminal offence, so as to protect Hong Kong citizens who have been bullied by cyberbullying, and it is possible to talk about judicial links and mutual assistance between the two places.
The mutual assistance between the two places is controversial. Who guarantees that their children will not be subjected to cross-border cyber violence?
Some people are worried that the mutual legal assistance between the two places for "Nana" may break out of the legal disputes between the two places caused by the campaign against the "Fugitive Offenders Bill Amendment Bill" in 2019.
Jiang Yuhuan expressed her understanding of the disputes, but she believes that it is impossible not to resolve cross-border legal issues because of disputes, because more people are spending their time online under the epidemic, and smartphones and computers have become an important factor for many young people. of belongings, cyberbullying may only increase in the absence of sound relevant legal protections.
Sameer Hinduja, professor of criminology and criminal law at Florida Atlantic University, and Justin Patchin, professor of criminal law at the University of Wisconsin Shuiqing, in their 2010 article "Bullying, Cyberbullying, and Suicide" ( Bullying, cyberbullying, and suicide), parents often claim they don't have the necessary skills to monitor their children's online activities, teachers are often reluctant to deal with issues outside the school environment, and more importantly, lawmakers want to see clear Evidence that cyberbullying poses a significant threat to an individual is required to enact laws against cyberbullying.
Protecting citizens from bullying is a top priority for most governments.
Cross-border cyberbullying is an intractable problem. Bullies have a large space for cyberbullying and the ability to generate, manipulate, and disseminate content anonymously and continuously.
The epidemic and the Internet make it impossible for parents, guardians, teachers, and schools to protect minors every minute and every second.
And who can guarantee that their students and their children will not become victims of cross-border cyber violence?
The photographer's son plays an online computer game in his bedroom on November 13, 2020 in London, England.
(Getty Images)
A third of young people in 30 countries said they were victims of cyberbullying in a survey released by UNICEF and the UN Special Representative of the Secretary-General on Violence against Children on 4 September 2019 Of those, one in five reported that they had ever skipped school due to cyberbullying and violence.
Social networks have become the most common place for cyberbullying, and UNICEF has called for policies to protect children and young people from cyberbullying.
Dr Rebecca Ong, associate professor at the School of Law at City University of Hong Kong, pointed out that cyberbullying is an anti-social behaviour and a social problem.
The current (Hong Kong) civil and criminal laws are only trying to expand their scope of application, not to solve social problems in the new digital age, and do not provide the necessary protection for victims.
Young people and vulnerable groups need more response and protection from the relevant authorities.
Criminal laws may be a tool to address the power imbalance between cyberbullyers and victims, she said, but the best way to do this is to raise awareness among parents and guardians in education systems and schools to recognize, identify and manage potential cyberbullying behaviours .
Several common law jurisdictions already have measures to address cyberbullying:
According to Article 19 of the International Covenant on Civil and Political Rights, freedom of expression may be subject to certain restrictions, subject to respect for the rights of others, such as the right to privacy.
However, such restrictions must have a legal basis, be justified by a legitimate purpose, and be proportional to the rights protected.
Hong Kong’s legislation to prosecute cyberbullying does not violate relevant human rights laws in Hong Kong. Many overseas common law jurisdictions have already enacted laws to prohibit cyberbullying.
In Australia, the Online Safety Act, passed in June 2021, obliges media platforms and other websites to remove "abuse or bullying" content within 24 hours, or face up to $111,000 for individuals, Companies can be fined up to A$555,000.
New Zealand introduced the offence of "publishing electronic content to harm others" in 2015, making it a criminal offence to publish online content that causes serious emotional distress.
New Zealand enacted the Harmful Digital Communications Act in 2015, after citing relevant provisions of various laws to prosecute cyberbullying.
The New Zealand Parliament passed the Hazardous Electronic Information Act by a large margin in 2015.
The legislation makes cyberbullying a specific criminal offence, provides a wide range of civil remedies for affected victims, and establishes an approved body to handle, mediate and resolve complaints.
Prior to the enactment of the Harmful Electronic Information Act, local prosecutions under the Crimes Act 1961, Summary Offences Act 1981, Harassment Act 1997 or Electronic Communications Act 2011 involving threats or intimidation Cyberbullying.
Since the Hazardous Electronic Information Act came into force in 2015, there have been concerns in New Zealand that the legislation may stifle freedom of expression.
However, the New Zealand Human Rights Commission36 expressed satisfaction that the legislation contained safeguards to ensure a balance between rights.
For example, the Harmful Electronic Information Act expressly obliges the courts and Netsafe to act in accordance with rights and freedoms under the New Zealand Bill of Rights Act 1990.
In addition, the legislation sets a higher legal threshold to ensure that court remedies and/or convictions only cover more serious cases.
The Harmful Electronic Information Act does not expressly regulate offences committed outside New Zealand.
If the content in question originates from an overseas website but can be obtained in New Zealand, this may bring jurisdictional issues to the local courts and law enforcement agencies in New Zealand.
Under the Harmful Electronic Information Act, a court may declare a message to violate the principles of communication.
According to the New Zealand government, even though the court's announcement is not enforceable, it still has a significant dissuasive effect on Internet intermediaries operating outside New Zealand's jurisdiction.
People play online video games at a game console center in Beijing on September 11, 2021.
(Getty Images)
Singapore enacted the Protection from Harassment Act in November 2014 to address both online and real-world harassment, with criminal penalties and civil remedies.
Previously, harassment was already an offence in Singapore under the Miscellaneous Offences (Public Order and Harassment) Act, but the Act did not specify whether online harassment was covered.
The Prevention of Harassment Act was also enacted in response to local concerns about the availability of adequate remedies for victims of harassment and to empower victims of cyberbullying to seek civil remedies.
In 2019, the Ministry of Justice recommended further amendments to the Prevention of Harassment Act to expand the scope of complaints from victims of cyberbullying; and the establishment of a special Protection from Harassment Court to expedite the processing of complaints.
The amendment bill was passed by Congress and will take effect on January 1, 2020.
Before the Prevention of Harassment Act was enacted into law, concerns were raised as to whether the Act would apply to cyberbullying outside Singapore.
Under Section 17(6) of the Prevention of Harassment Act, if the victim is in Singapore, the Singapore courts have jurisdiction over offences committed abroad, to hear the case, and to issue a protection order or emergency protection order.
Therefore, the Prevention of Harassment Act can cover overseas crimes and deal with overseas origins.
Similar to the situation in other overseas places, such as Internet intermediaries operating overseas, it may pose difficulties for law enforcement in Singapore.
In an interview with Hong Kong 01, former President of the Law Society of Hong Kong and member of the Legislative Council Lam Shin-keung said: "I strongly condemn all forms of bullying. However, there are many complex reasons for a person to commit suicide. Without a full and true understanding of the background of this tragic event circumstances, it is not appropriate for me to comment on this specific case.”
"Hong Kong 01" once contacted the former Secretary for Security, Hong Kong Legislative Council member Lai Tung-kwok.
Li Dongguo said, "I don't know that case, so I won't comment."
Former Secretary for Security, Legislative Council Member, Executive Council Convenor Ip Lau Suk-yee, Legislative Council Member and practising barrister Yung Hoi-yen did not accept interviews.
By the time of writing, members of the Security Bureau, the Education Bureau and the Legislative Council's Panel on Justice and Legal Services had not yet responded to the report.
Help Sites and Hotlines
Hong Kong Samaritan Society for Suicide Prevention Hotline: 23892222
Hospital Authority Mental Health Hotline: 24667350
Tung Wah Group of Hospitals Zhi Ruo Yuan Hotline: 18281
Samaritans Hotline: 28960000
Social Welfare Department Hotline: 23432255
Lifeline: 23820000
Liminhui "Instant Communication": 35122626
Caritas Xiangqing Hotline: 18288
18-year-old woman commits suicide in Tin Shui Wai
Mother seeks the culprit online: believe the law is fair, the 18-year-old girl from Tin Shui Wai committed suicide on live broadcast, but the child star Shao Yibu, who was bullied by the mainland online group "toilet girl", was rescued by jumping off the building after being bullied by the school. Internal media: the education department should intervene in the investigation. Yang Mi and others cooperated with mainland child stars who were suspected of being overwhelmed by school bullying and rescued by jumping off the building. Zhengzhou primary school students choreographed and filmed to boycott school bullying.